Further proposed revisions to Corrales’ land use laws are expected to come before the Village Council at the February 8 meeting. Or, if not, then perhaps at the February 22 session. Recommendations for crucial changes to Chapter 18 of the Village’s Code of Ordinances had been expected at the council’s January 25 session, but Mayor Jo Anne Roake apologized those were not ready for consideration.
Corrales’ land use laws and regulations are set out in that section which covers such topics as residential density, commercial and light industrial uses, cell tower height, landscaping requirements, accumulation of junk or abandoned cars, walls and fences along Corrales Road, outdoor lighting, stormwater run-off and a wide range of other issues. Many, if not most, of those matters are likely to remain as-is after the council reviews changes recommended by Planning and Zoning Commission assisted by planners with the Mid-Region Council of Governments (MRCOG) based in Albuquerque.
Last year the council directed the mayor to contract with MRCOG (often referred to as “Mister COG”) to help Village officials extricate from troublesome issues such as short-term rentals and construction of “casitas” on parcels that already contain a dwelling… an apparent violation of Corrales’ long-standing “one dwelling per acre” rule. (See Corrales Comment Vol.XXXIX No.22, February 6, 2021 “Moratorium on Permits for Casitas, Short-Term Rentals.”)
“The Planning and Zoning Commission is looking at the latest Chapter 18 draft, and will discuss it at the February 16, 2022 meeting,” P&Z Administrator Laurie Stout said January 31. “Council has seen it once, and had some questions, and attorneys wanted to look over some of the nonconforming uses language.”
Responding to villagers’ concerns that Corrales’ one-home-per-acre policy is consistently circumvented, a year ago the Village Council imposed a six-month moratorium on permits to build secondary dwellings on lots and on applications to operate short-term rentals.
After substantial public comment at its January 26, 2021 session, the council voted five-to-one to impose the 180-day moratorium noting that “the size of accessory structures is virtually unregulated, sometimes resulting in what appears to be two homes on one lot,” and that such residences “are being utilized for the commercial purpose of providing short-term rental accommodations.”
The approved resolution noted that “the proliferation of loosely-regulated accessory structures being used as short- and long-term rentals has the potential for far-reaching deleterious effects on the village, including negatively impacting neighborhoods with greater numbers of vehicles and persons not previously present and increasing the effective density above that permitted or intended in the A-1 an A-2 zoning districts.”
Much of the discussion during the January 2021 meeting, focused on the perceived need for a moratorium when the same issues were being addressed by planners with MRCOG through a contract with the Village approved the previous month.
Those recommendations were to be submitted to the mayor and council by the end of 2021.
Problems related to such land use restrictions have been recognized for years, even decades, but it had become more acute with the advent of Airbnb and other short-term rental opportunities. Going back to the 1980s, pressures to bust the prohibition against higher residential density were expected to intensify when the Village installed a sewer line, thereby obviating groundwater pollution from septic leach fields.
But in recent years, the pressures actually came from neighborhoods not served by the wastewater system, especially where new homes are built on vacant lots. The controversy erupted over a new home being built on West Ella Drive in 2020. (See Corrales Comment Vol.XXXIX No.13 September 19, 2020 “West Ella ‘Casita’ Draws Neighbors’ Ire.”)
P&Z Administrator Stout’s summary of proposed changes to MRCOG draft recommendations and “issues of concern in Chapter 18” highlights the following topics: restrictions on cannabis growing, residential density, group homes, senior living projects and non-conforming lot sizes.
Partial text is provided below for draft recommendations on those topics.
- Changes to Cannabis, incorporating all recent amendments and correcting for consistency;
Amending Code definitions, 18-29 to comport with Cannabis Regulation Act Definitions:
Personal production of cannabis means the production or manufacture of homegrown cannabis or homemadecannabis products pursuant to Section 26-2C-27 of the Cannabis Regulation Act.
Homegrown or homemade means grown or made for purposes that are not dependent or conditioned upon the provision or receipt of financial consideration. Amending General Regulations, Section 18-30(r) to conform to Cannabis Regulation Act language.
Cannabis and hemp: compliance with applicable law and regulatory requirements.
(1) The cultivation, production, intentional growth, manufacture and distribution of cannabis and cannabis- derived products shall be in compliance with the provisions of the Lynn and Erin Compassionate Use Act, Cannabis Regulation Act, all regulations promulgated thereunder by the Regulation and Licensing Department, and all applicable Village Code requirements, including those relating to zoning and building.
(2) The cultivation, growth, manufacture and sale of hemp shall be in compliance with all provisions of applicable federal and state law and regulations thereunder, in addition to all applicable Village code requirements, including those relating to zoning and building.
Amending Zones A-1 and A-2 Sections 18-33(b) and 18-34(b) as follows:
18-33(b)(4)Agricultural uses, including the planting, growing and harvesting of crops for consumption, [provided, however, that the commercial production, manufacture and retail sale of cannabis and cannabis products are prohibited in the A-1 zone.] Agricultural and rural residential zone, 18-33(b)(8) Sale of livestock and/or crops raised on the premises, but not including the sale or distribution of cannabis or cannabis-derived products.
A-2 zone, 18-34(b)(4) Agricultural uses, including the planting, growing and harvesting of crops for consumption, [provided, however, that the commercial production, manufacture and retail sale of cannabis and cannabis products are prohibited in the A-2 zone] 18-34(b)(8) Sale of livestock and/or crops raised on the premises, but not including the sale or distribution of cannabis or cannabis-derived products.
Re-numbering Permits, certificates and plan approval, Section 18-45(h) to be 18-45(f) and inserting language from Ordinance 21-02, as Amended.
(f) Cannabis related activities, approval and permit required.
For purpose of this section, all measurements for the purpose of determining the location of a cannabis retail establishment, cannabis consumption area, or cannabis courier in relation to schools or daycare centers shall be the shortest direct line measurement between the actual limits of the real property of the school or daycare center and the actual limits of the real property of the proposed cannabis establishment, cannabis consumption area, or cannabis courier.
(1) No person(s) or entity shall engage in the production, manufacture, or sale of cannabis or cannabis products in any zones without a current business registration and a valid Cannabis permit issued by the Village of Corrales, permitting the specific cannabis-related activity or activities sought to be permitted on the premises. Cannabis permits are issued to the applicant(s) and are not assignable or transferable. Compliance with this section does not alleviate the applicant(s) from requiring approval from the Planning Administrator for all other applicable sections of 18-45.
(2) Application and fee. Anyone wishing to conduct cannabis-related activity must submit a completed application. The application shall be returned to the Administrator accompanied by the appropriate application fee for the use(s) to be permitted, and must show, at a minimum:
- The complete documentation to be provided to the Regulation and Licensing Department.
- The cannabis retailer, cannabis consumption area, or cannabis courier facility to be permitted may not be located within 300 feet of a school or daycare center in existence at the time a permit was sought.
- The cannabis retailer and cannabis consumption area seeking a permit may not be located within 200 feet of another cannabis retailer or cannabis consumption area in existence at the time a permit was sought.
- A site plan [which conforms to the requirements set forth in Section 18-45(b)], including all greenhouse(s) proposed for the growth of cannabis and any accessory structure(s) located on the premises.
- Valid proof of identity of the person(s) seeking the permit, indicating they are at least 21 years of age.
- Proof of ownership or legal occupancy of the premises to be permitted, including an affidavit from the owner of the property that the applicant has permission to conduct cannabis-related activity on the premises if the property is not owned by the applicant.
- A valid New Mexico gross receipts tax number.
- The name, mailing address, email address, and contact phone numbers (including 24-hour emergency contact numbers) of the owner of the property for which the permit will be issued.
- The name, mailing address, email address, and contact phone numbers (including 24-hour emergency contact numbers) of the applicant, if different than the owner of the property.
- All other legal requirements as provided for according to the regulations set forth by the Regulation and Licensing Division pertaining to cannabis and cannabis related activity
- The Zoning Permit approval shall be granted contingent upon the licensee providing a valid license upon approval from RLD.
(3) Compliance with 18-45[(f)(3)(a)] through 18-45[(f)(3)(dc)] required. Any cannabis requiring a site development plan pursuant to 18- 45[(f)(3)(a)-(dc)] of the Village Code must provide documentation of Site Plan approval at the time of permit application.
- All cannabis establishments shall be equipped with odor control filtration and ventilation system(s) based on the current industry-specific best control technologies. No operable windows or exhaust vents shall be located on any building facade. Exhaust vents on rooftops shall direct exhaust away from residential uses or zones. The building, or portion thereof, used for cannabis production, manufacture, retail, or consumption shall be designed or equipped to prevent detection of marijuana odors and other objectionable odors from the property line.
- Greenhouses or other structures incidental to the production of cannabis or cannabis[-derived] products [or manufacture of cannabis or cannabis products] shall [be ventilated in such a manner that no:
- Pesticides, insecticides or other chemicals or products used in the cultivation or processing are dispersed into the outside atmosphere
- No odor from marijuana cultivation, processing, sale, storage or consumption can be detected by a person with an unimpaired and otherwise normal sense of smell at any adjoining use or adjoining property to the cannabis producer or cannabis manufacturer
iii. Activated carbon [Odor] filtration systems shall be maintained regularly such that odor abatement remains effective.
- Cannabis producers shall keep a maintenance record for their filtration system(s) which shall include, at a minimum: the filter(s) changed, date the filter change was conducted, and due date for next filter change.
- The exhaust system to control odor shall be designed by a licensed professional air quality/environmental engineer recognized by the State of New Mexico.
- Greenhouses, manufacturing facilities, or other structures incidental to the production of cannabis or cannabis products shall be equipped with noise buffering panels sufficient to reduce sound emissions below 85 decibels as measured from the property line.
- Applicants must provide a valid permit from the Office of the State Engineer at the time of application certifying access to water rights sufficient to conduct the activity or activities for which the Village permit is sought.
(4) Hours of Operation. No commercial cannabis producer, manufacturer, or courier shall be permitted to operate between the hours of 10pm and 8am the following day. No commercial cannabis retailer or consumption area shall be permitted to operate between the hours of 8pm and 10am the following day.
II.Legal changes necessary for Group Homes under the fair housing act and highlighted the definition of family to discuss.
Definitions in Section 18-29(a)
Family means one or more persons occupying a single dwelling unit, all of whom are related to each other by blood, marriage or legal adoption, or persons occupying a single dwelling unit if they are not all related to each other by blood, marriage or legal adoption; provided, however, that this restriction shall not conflict with the federal Fair Housing Act.
Group home means a dwelling unit that contains a community residence that may or may not be licensed by or operated by the State as a community residence providing housing, care and counseling or therapy for elderly residents or residents who are mentally ill, handicapped, or developmentally or physically disabled A Group Home in a Commercial Zone may also contain a medical or health care facility.
No Group Homes may be used as Correctional Facilities
18-33(b)(3), 18-34(b)(3), and 18-35(b)(2): Group homes. The maximum occupancy on the premises shall be reasonable as determined by the Administrator or Building Inspector in relation to the lot size, square footage of the residence, number of bedrooms, parking availability, septic capacity, and relevant safety considerations].; however, nothing in this Section shall violate the Federal Fair Housing Act.
18-33(c)(4), 18-34(c)(4), and 18-35(c)(5) State-licensed and state-operated group homes. The maximum capacity to house on the premises shall be no more than 10 patients or residents.
Removed from Section 18-36(c)b. Group homes.
- The maximum capacity to house on the premises shall be no more than five patients or residents.
- The applicant must provide a traffic engineering analysis showing to the satisfaction of the Village Engineer that the operation as proposed will not adversely affect the public safety either because of increased traffic or on street parking.
In Section 18-37(c)
(3) Group homes having a maximum capacity and occupancy reasonable as determined by the Administrator or Building Inspector in relation to the lot size, square footage of the residence, number of bedrooms, parking availability, septic capacity, and relevant safety considerations].; however, nothing in this Section shall violate the Federal Fair Housing Act . [no more than five (5) patients or residents residing on the premises.]
(4) State-licensed or state-operated group homes having a maximum capacity and occupancy of no more than ten (10) patients or residents residing on the premises. See Section 18-33(b)(4)
Removed from 18-37(d)
- Group homes having a maximum capacity and occupancy of no more than eight (8) patients or residents residing on the premises.
- The applicant must provide a traffic engineering analysis showing to the satisfaction of the Village Engineer that the operation as proposed will not adversely affect the public safety either because of increased traffic or on street parking.
III. Highlighted all references to Senior Living and related terms to discuss;
Definitions, Section 18-29
Independent living means the provision to residents of a housing facility or community of limited levels of domiciliary care, including as a minimum room and board. a housing facility or community that provides services for citizens who need little or no assistance with daily activities, including as a minimum room and board.
Senior living facility means a housing facility or community (A) that is intended for and is operated for occupancy by persons sixty-two (62) years of age or older; (B) in which at least ninety (90) percent of the occupied dwelling units are occupied by at least one person who is sixty-two (62) years of age or older; and (C) that provides significant facilities and services specifically designed to meet the physical and social needs of older persons, including as a minimum, assisted living, or skilled nursing care, or a combination thereof. It may optionally include independent living.
Skilled nursing care means the services provided to residents of a housing facility or community, including as a minimum room, board, and living assistance, skilled nursing care, and prescribed medical treatment.
Municipal zone, Section 18-38(c)(10) Senior living facilities;
- Purpose: The purpose of this Subsection 18-38(c3)(g10) is to provide standards for the development of senior living facilities in a manner that recognizes and provides reasonable accommodation for the varied housing needs and desires of seniors, and ensures that senior living facilities are so located and constructed within the Village as to be compatible with surrounding properties, to not impose an undue financial or administrative burden upon the Village, and to not fundamentally undermine the Village’s zoning plan.
- Density and lot size: The allowed number of residents per acre shall be reasonably compatible with the density of the surrounding properties, not to exceed more than one resident per 5,445 square feet subject to compatibility exceed more than one resident per 5,445 square feet subject to compatibility with surrounding properties and compliance with all dimensional, design, parking, landscaping and other Village development standards. No senior living facility shall be permitted on a lot or contiguous lots having a total area of less than 15 acres.
- Landscaping requirement: A minimum of twenty percent of the lot shall be landscaped area. The landscaping requirements for nonresidential development in Section 18-40 apply to senior living facilities.
- Placement of parking: Parking areas shall be placed off the street to the rear and sides of buildings whenever possible.
- Traffic: The applicant must provide a traffic engineering analysis showing to the satisfaction of the Village engineer that the operation as proposed will not adversely affect public safety or quality of life of the neighborhood.
Off Street Parking, Section 18-39(c)(6)
Senior living facilities. One and one-half parking spaces per dwelling unit for independent living and one parking space per two beds for assisted living and skilled nursing. The parking requirements for senior living facilities may be reduced if justification can be provided.
- Highlighted whether Special Use Permits still have any purpose under the Code; Use by Review is the current normal process.
18-45(d) removed in entirety: (d) Special use permit.
(1) Approval and permit required. Any person or entity wanting to engage in a use on a commercial zoned lot which is not identified as a commercial permissive use for the C zone, or a use on a lot zoned M for municipal, public or quasi-public use which is identified as a use by review for the M zone, may request a special use permit for that particular use.
(2) Application and fee. Anyone wanting a special use permit must obtain and submit the completed application for a special use permit. This application shall be returned to the Administrator accompanied by the appropriate application fee and number of sets of required drawings. All special use permits must satisfy at least the following minimum requirements:
- Show proposed new structure(s) and any existing buildings or structures, all property lines with dimensions, all roads/streets, easements and setbacks.
- Show all locations on-site for water, septic, sewer, refuse, electrical points of connections, proposed service routes and existing utilities on the site.
- Show all required parking, drainage and grading information.
- Show required landscaping information
- Indicated drainage inflow and outflow locations and specify areas required to be maintained for drainage purposes.
- Include a topographic survey if requested by the Administrator.
- Added the specific definition of “Connected” for dwelling unit purposes;
Amending Section 18-29(a) to include “Connected under the definition of dwelling unit shall mean all living areas shall be within the same contiguous heated square footage and accessible through the same primary entrance.”
VII. Clarify Nonconforming use sections and fix the lot size problem
Lot means a parcel or tract of land platted and recorded with the County clerk in accordance with appropriate laws and ordinances, including such lots as may later become lawfully non-conforming due to changes in these regulations.
Nonconforming lot means an existing lot of record that was legally platted and recorded prior to November 13, 1989 that no longer meets the requirements of this article, or after subsequent amendments to this Article.
Nonconforming structure means an existing structure that was built prior to the November 13, 1989 that fails to conform the present setback, lot coverage, or other development standards of this article, or after subsequent amendments to this Article.
Nonconforming use of structure or land means a use that was lawfully established prior to November 13, 1989 and since maintained, that does not meet the district or use specific development standards of this article, or after subsequent amendments to this Article.
Nonconforming uses, section 18;47
- Defined. A nonconformance for purposes of the Land Use Regulations may exist in the location or use of a structure, the use of land, or with the size of the lot. of a lot (as defined in Section 18-29) which was lawful prior to November 13, 1989, but would be prohibited or restricted under the terms of this article, or has become nonconforming by amendment of this ordinance since 1989, shall be deemed a nonconforming. use.
- Burden of proof. The burden of establishing that a nonconforming use, structure, or lot lawfully exists under this article, in all cases, shall be the owner’s and not that of the Village of Corrales.
- Certificate of nonconformance. At the request of the property owner, and to the satisfaction of the Administrator that a structure or use of structure or land qualifies as a nonconforming use, the Administrator shall issue a certificate of nonconformance to the owner of each nonconforming use. A certificate of nonconformance will be issued by the Administrator for a nonconforming use structure, land or for the size of a lot, at the request of the property owner or the Planning and Zoning Commission.
- Expansion. The addition of a lawful use to any portion of a building which currently houses a nonconforming use which existed prior to the effective date of this article shall not be deemed an extension of such nonconforming use. Nonconforming uses of structures or land. Nonconforming uses of structures or land shall not be expanded, enlarged, or intensified without conforming to the requirements of this article.
- A lawful use may be added to any portion of a building which currently contains a nonconforming use or a portion of a nonconforming lot without being deemed a nonconforming use.
- Restoration and replacement. If a nonconforming structure is damaged or destroyed by any means, its restoration and/or replacement shall be permitted provided that:
- There is no increase in lot coverage or total square footage of structures as a result of that restoration and/or replacement; and
- Restoration and/or replacement is in conformance with the height, setback, 2. Restoration and/or replacement is in conformance with the height, setback, open space, landscaping and architectural requirements other development standards of this article. within the applicable zone district.
- Abandonment of a nonconforming use. Whenever a nonconforming use has been discontinued or abandoned for a period of twelve (12) months or more, such use shall not thereafter be reestablished, and any future use must be in conformance with the provisions of this article.
- Nonconforming lot size lots of record.
- Lot or lot of record as used herein shall mean a lot or parcel created by a plat adopted by a local government and recorded with the County Clerk. Any lot of record existing, prior to the effective date of this article, which fails to meet the minimum lot size requirements of this article, may be developed, redeveloped, or improved provided that it meets all other requirements of this article. If a nonconforming lot is within three-hundred (300) feet of an existing sewer line, a connection to that sewer line is required. If a connection to an existing sewer line is not available, the Village of Corrales requires that any lot that is less than .75 acres must install an advanced septic treatment system. No conventional septic system shall be installed on a lot less than .75 acres. Proof of a permit for the installation of the advanced septic treatment system, or connection to the sewer line, will be required by the planning and zoning division prior to issuance of a development review permit.
- If a nonconforming lot of record contains an existing use in a structure, that use may continue for a period of two years to allow the owner of the lot to bring the lot into compliance with the provisions of 1 above. If the lot does not come into compliance with the provisions of paragraph 1 that use will then become illegal.