Planning Commission - public_hearing

How are they doing?

Dominic, we ready to go? Hearing Officer Hoppe, yes, we are ready.

All right, if we could have quiet in the room, please. Time is now 3 o'clock. and I call this meeting to order. We're here today on a Santa Fe County Sustainable Land Development Code hearing officer meeting. My name is Joe Haup. I've been designated by the Santa Fe County Board of County Commissioners as a Sustainable Land Development Code hearing officer pursuant to the Sustainable Land Development Code, which I will refer to as the SLDC. As a hearing officer, I will be conducting this hearing, and on the matters heard, I will make recommendations to the Planning Commission based on my findings of fact and conclusions of law. This hearing has been set on four matters as follows. Case number 26-5130, a variance request by Sarah Y. West. Case number 26-5170 and 26-5171, requests by Duke City Ready Mix for a conditional use permit and variance respectively. Case number 26-5190, a variance request by Michael Wright. And case number 26-5180, a variance request by Jeff and Laurie Gose. And if I'm mispronouncing that, I apologize. Staff, are there any amendments we need to make to the agenda?

Hearing officer, there are no amendments to the agenda today.

Very good. In the absence of any amendments, then I approve the agenda, including all of the exhibits thereto. And I hereby make them part of the record of this proceeding. For all those in attendance, just a quick note. I plan to call the matters in the order that I just listed them, just so you can manage your expectations appropriately. I will try to move things along quickly today because we do have four matters to address. These are usually scheduled to go for two hours. I do not plan to go over that, so we'll do the best we can. And with that introduction, I call our first matter case number 26-5130, the Sarah Y. West variance application. Would the staff please? You're ahead of me already. Can you please raise your right hand? Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury?

I do.

Thank you. Can you please state and spell your name for the record?

Yes, it's Marie L. Martinez. M-A-R-I-E-L, middle initial, Martinez, M-A-R-T-I-N-E-Z.

Thank you very much. And if you want to go ahead and present on behalf of the county, please do.

Thank you, Hearing Officer Hopp. Maria Martinez, Building and Development Review Specialist. Sarah Y. West, applicant, requests approval of a density variance to allow three dwelling units on a 12.50 acre parcel and a variance of Chapter 10, Section 10.4.2.4 to allow a separate septic system. Currently, the applicant has an existing main residence of 2,200 square feet, a guest home of 800 square feet, and a studio of 700 square feet. The subject property lies within the Rural Residential Zoning District within the San Marcos Community Overlay Zoning District, where the base density is one dwelling per 10 acres. The property is located at 27 San Marcos Road West, SDA 2 within Township 14 North, Range 8 East, Section 3, Commission District 3. Parcel number 792-16171. Background. The subject property is located in the Santa Fe County and is described as Tract 1B, containing 12.5 acres in the San Marcos Pueblo Grant, Township 14 North, Range 8 East, according to the Plata Survey for Lucy Perinello by Cecil Gilbert. dated August 15, 1991, recorded September 19, 1991, plat book 227, page 43, and warranty deed recorded February 17, 2006, by instrument number 1420690. Both are recorded in the office of the Santa Fe County Clerk. Currently, there are three dwelling units on the property. In 2006, a building permit number 06-957 was approved by Santa Fe County on July 7, 2006, for new construction on a single family dwelling unit, which is identified as the main house. According to aerials of the property, between 2006 and 2008, the dwelling identified as a studio was built. Between 2011 and 2014, The third dwelling identified as a guest house was built. Between 2015 and 2017, an addition was made to the main house. No additional permits were obtained for the additional dwellings or the additions made to the main house. The applicant is requesting approval of a density variance to allow three dwelling units on the property. The permitted main house is approximately 2,300 square feet and consists of two bedrooms and one bathroom. The main house is serviced by its own septic system by permit number SF060332, issued by the New Mexico Department of Environment Both the studio and the guest house are unpermitted with this county. The studio is approximately 700 square feet and consists of one bedroom and one bathroom. Both the studio and the guest house have their own separate septic system, which have not been approved by NMED. Therefore, do not meet the requirements of dwelling units per Chapter 10.4 of the SLDC. The New Mexico Environment Department has reviewed septic permit number ES060332 for 27 West San Marcos and found that it was approved operation of the system serving the two-bedroom main house. However, it appears that there is a total of three septic systems on the property. NMED searched all records for additional permits but only found one. While property size and soil conditions do not appear to be an issue, an unpermitted septic inspection is necessary to assess the condition of the system and check the setback requirements. The property is served by a single private well, RG 86896. However, the Office of the State Engineer has no record of a well log. Since the well log does not appear to have been filed on or before February 16, 2007, the permit has now expired. It is recommended by the Office of the State Engineer that Ms. West contact District 6 Water Rights Office in Santa Fe at her earliest convenience to discuss options for getting the well properly permitted. Yes?

Mr. Martinez, thank you. In the interest of time, I'm going to ask you some questions to direct your presentation. Okay. Hearing Officer Haught, can I be sworn in? Yes, sir. Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury?

I do. Dominic Cisneros, Building and Development Supervisor, 240 Grant Avenue, and I understand I'm under oath.

Okay, thank you.

Hearing Officer Hott, before we move forward, I want to make a distinct clarification. Only one variance has been requested, and it's the density variance. There's no additional variance for Chapter 10.4 for a separate septic. As a density variance, if approved, would include the use of a separate septic, or if denied, not allowed the separate septic.

Use of a separate septic understood and I appreciate that clarification. So miss Martinez Would you agree with me that The appropriateness of the variance that's been requested will be subject to the criteria set forth in SLDC section four point nine point seven point four Yes Okay. And do you agree that that section that I just read sets out three criteria? The first being that the request is not contrary to the public interest. The second being that where due to extraordinary and exceptional situations or conditions of the property, The strict application of the code would result in peculiar and exceptional practical difficulties or exceptional and undue hardship on the owner. And the third is that the spirit of the SLDC will be observed and substantial justice will be done. Is that your understanding of the criteria?

Yes.

Okay.

I want to go ahead and then move into the staff's analysis of those three criteria, beginning with the first, where the request is not contrary to the public interest.

if you could can you please state the staff's position on how the requested variance uh conforms with that requirement or doesn't conform as the case might be okay so the request is contrary to public interest as a subject property 12.5 acres is exceeding the base density which allows for one dwelling unit per 10 acres neither the studio nor the guest house qualify as an accessory dwelling unit for Chapter 10, Section 10.4.2.4, Utilities. Water and utility for the accessory dwelling units shall be shared with the principal residence. Liquid waste disposal system shall be in common with the principal residence. However, if the principal residence is on its own separate system, then any modifications or additions to the system to accommodate the accessory dwelling units shall be approved by the New Mexico Environment Department. The findings by NMED were one permitted system, permit number ES060332, that was approved for operation serving a two-bedroom house. There is a total of three septic systems on the property, However, no record for additional septic systems were found.

OK. Thank you very much. And then what is the staff's position with respect to the second criteria, which in summary is that there are particular structures or traits of the land that would make the strict application of the code, it would create undue hardship or would create exceptional difficulties?

Staff finds that the applicant has not demonstrated that due to extraordinary or exceptional conditions of the property, Strict application of the Santa Fe County Sustainable Land Development Code would result in peculiar and exceptional practical difficulties or exceptional or undue hardship. While it has been a lifelong goal of Ms. West to build multi-generational family compound, extraordinary and exceptional situations or conditions were created by the applicant with unpermitted development of additional dwellings and unpermitted utilities. While staff acknowledges that compliance may require modification of the existing development, the need to alter or remove non-compliant improvements does not by itself establish the practical difficulties or undue hardship contemplated by the variance criteria.

Thank you very much. And then finally, for the third criteria, what is the staff's position with respect to that? For the record, that is so that the spirit of the SLDC is observed and substantial justice is done.

Chapter 9, Table 9-14-4, Dimensional Standards for Rural Residential Zoning within the San Marcos Community District Overlay, identifies the density which allows one single family dwelling per 10 acres. The spirit of the SLD is to maintain the density requirements outlined in the code to secure suitable water use and liquid waste for specific zoning districts. Granting the requested variance would not uphold the intent of the SLDC because it would authorize development that does not comply with established standards of the code without sufficient justification under the required variance findings. Based on the evidence contained in the records, staff has not identified permits, approvals, or other documentation demonstrating compliance.

Thank you. And I understand that if this variance were to be granted, the staff would ask that certain conditions be imposed. Is that correct?

That is correct, hearing officer.

Can you please state those conditions for the record?

One, no additional dwelling units shall be allowed Two, no accessory dwelling units shall be allowed. Three, after the fact, permits shall be obtained for all unpermitted dwellings. Applicants shall obtain necessary well permits from the Office of the State Engineer. No additional wells to be drilled. Applicants shall obtain necessary liquid waste permits from NMED and comply with all applicable requirements and conditions. No additional liquid waste systems to be allowed. Applicant is required to place a water meter on the property that serves all structures that are receiving water from the well. Applicant is required to report annual water meter readings to the Santa Fe County no later than April 30 of the same calendar year. Annual water meter readings can be reported to the Public Works Department beginning January 1, 2027 by visiting, and it has the website. The variance shall automatically expire with one year of approval if all after the fact permitting has not been obtained. All future development of the property shall comply with the requirements of the SLDC and any other applicable county ordinances, except as expressly modified by the variance approval.

Thank you. And the record shall reflect those conditions. Ms. Martinez, to be clear, I have read the staff report. I've read all the exhibits to it. So I'm familiar with their content. They are a part of the record. And no matter what you got up here to say today, I would consider every word of that report in making my decision. So I don't want to feel like the staff is being unfairly not given an opportunity to make its case because it has been through the submission of the report. I do want to give you an opportunity though, is there any aspect of the report, any aspect of the application that you believe I should focus my attention on or that you think is of particular importance as it applies to this request?

I think that it's all explained as well as could be in the report.

Understood. Thank you. Ms. Martinez, do you mind just taking a step aside? I'm not excusing you yet, but I do want to see if there's any cross-examination. Who is here today for the applicant? OK. Ms. West, do you mind coming up quickly? Sorry, there's going to be some going up and down, but I wanted to call you up here to ask if you have any questions you would like me to direct to the staff. This is not an opportunity for argument or rebuttal, but just a cross-examination to clarify the record, anything that might be helpful for you. Do you have anything in that regard? Hearing officer hop, would you like to swear in the applicant if she's just asking questions?

No, technically it's not required No, I don't need to ask the staff any questions. I just want a chance to provide my response to the staff's response in the Report understood just want to hit those three points and just And I do want to know if you guys received this letter on my behalf. She was out of town, one of my neighbors, and so she didn't get back in time. She gave it to me to bring to you.

That's fine. We'll accept it as part of the record. Oh, okay, great. Thank you. Okay, so then it sounds like there's no cross-examination, so Ms. Martinez, I will excuse you. Thank you. And Ms. West, do you mind raising your right hand? Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury?

Yes.

Thank you.

So Ms. West, this is your opportunity to make your presentation.

Okay, I'll be brief.

I was going to say, your application is part of the record. I've read it. I've seen the material. So in the interest of time, I would ask that you focus on the things that you think are the most important things. That if I think of nothing else as I walk away from this, what are the things you want me to keep in mind?

Sure. Let's see. I think the things that I just want to hit and address really quickly, of course, would first be just my response to the staff's response for each of the three variance criteria. And the first criteria being we'll have no impact on the public. And in fact, the staff's response in a nutshell was, no, it is contrary to the public interest because of one dwelling per 10 acres. OK. Well, my neighbors don't feel that way. I'm not harming them. I was permitted for a two bedroom, one bath main house. And that's precisely what I have now. So the addition that was mentioned to the main house was me finishing my main house. So I have two bedrooms, one bath, that's it. I actually did have a permit at one point when I first started the studio because I remember stapling it to a railroad tie in case somebody came by to check. The county can't find it. I don't have it in my files anymore. I probably threw it away. Anyway, moving, just trying to stay focused. So I dispute the fact that it is contrary to public interest. I am actually right now working with my septic guy to get the, who's working with EID, the septic, to get the septic systems excavated.

Ms. West, do you just mind adjusting the mic so that you're speaking directly into it? We're having, it's not picking you up on the recording.

So I'm working with my septic guy right now who's coordinating and we don't have a date yet. He's working with scheduling with the EID for the two septic systems. And the reason there are those other two, I wasn't intentionally trying to do anything illegal or tricky. I clearly erroneously assumed that my septic permit for the main house, you know, covered the other septic systems. So that's on me. Anyway, I'm on that. Moving on quickly, the utilities... For the accessory dwelling, I'll refer to it as the guest house. They are, in fact, shared with the principal residence. The water, the electricity are shared for both the studio and the guest house with the main house. Okay, moving on. Okay, extraordinary and exceptional situations or conditions. wherein the strict application of the code would result in peculiar and exceptional practical difficulties, for me, the owner, and they say, no, won't cause you any problems, it would literally... I'm not even quite sure what I would do, because one of the applications of... The variance for this very thing is to be able to provide affordable housing for multi-generational living situations. And that's exactly where I'm headed. My mom, who's elderly, is going to need to move into the guest house. And I have a single mother living in the studio right now. So that would be bad for them. But right now, My only source of income is from that guest house that I rent out and the studio. So if all of a sudden that were to shut down completely, oh my gosh, I don't even know what I would do. So yeah, I would say it would be a hardship for sure. The other thing is the third one, the spirit of the SLDC would be observed and substantial justice would be done if this variance is allowed. My family has been out there, I mean, not as long as many of them, but five generations. We're very active in the community. We're good stewards of the land. I run a tight ship. My property is well maintained. It's very quiet and peaceful. And as that letter that I would like you to read, you know, I'd like you to read that. So it actually is fitting exactly in with what the SLDC says. is designed for variances. And in fact, an accessory dwelling is permitted on my property, the size of my property. But what tripped me up was it having its own septic system. So that's a problem, but one that I'm fixing. So in terms of the water, I'll just try to wrap this up. In terms of the water, I know precisely how much water I use. I have a very low yield well. I supplement by purchasing water and having it delivered. We're super water conscious. So I know, actually, I just calculated it to the gallon. I mean, our usage on the property is, maybe 100 gallons a day, which is quite low. Oh, and yes, I never received a well log from the driller. And I did contact the water division, and he said that's quite common with historical wells the driller drills. develops it, and then he splits and gives you the bill. I never received a well log, so I didn't know I had to do it. So I'm on that. I've already filled out the application, paid the money, and I'm just waiting for them to schedule a site visit for a new permit number. And I guess I just want to say that even though this has been an extraordinarily stressful and unexpected process for me, I do have to say that the people I've been working closely with, Dominic and Marie and John Lovato, have really been patient and helpful as I try to wade through this extremely onerous process. And I am probably forgetting a lot of other things. I do want to say in closing that I would like to add to the record as legal precedent that the county themselves set for a case that is very similar to mine and very close, just miles away from my house. And that is case number V, as in Victor, 17-5021. And without getting into the nuts and bolts of it, they allowed a variance for four, four full dwellings, bathroom, full kitchen, much larger than mine, on less than half of the acreage I have. So on less than six acres, the county approved a variance for four dwellings. And really, I'm just asking, my main house is already permitted. I'm allowed to have an ADU if I just have to get through the septic thing. So I really don't know what all the variance is that I'm asking for. The septics.

Okay. I guess.

Yeah, having two separate septic systems. Whereupon once during the many site visits that I've had with the county and I welcome them, you know, I have nothing to hide, check it out. And at one point they said... You know, that actually it is more beneficial in many respects to have separate septic systems for individual wet homes. I find that to be true. Oh, and he said the county knows this to be true, and they do have it way in the back of their head. They'd like to see that at some point. But he said it'll never happen in your lifetime. So there is scientific evidence that it's much healthier on the environment, the biome system as a whole. I certainly maintain them excellently. So there's that.

OK.

I can't think of, I don't know, can't think of really anything else.

Thank you. I have a couple questions for you. The permit that you talked about that was stapled to a railroad tie, do you know what that permit permitted?

It was the very, very first structure that I started building with just hand tools and And it started out as going to be like a tool shed, but then it just was large enough, like my kids would sleep. I turned it into like a little bungalow for the kids when they came in the summer. So I don't even recall what... name I put on it. But I do know it was during that time period wherein, and this is a known fact, that through some snafu, the county lost about 25 years of permits. I've had other people in the same boat. They're like, my home was permitted. And the county's like, we can't find it. Start all over. So I don't know what happened. But anyway, it's a known thing. But I don't know. I don't know what I put on it, whether I put tool shed, bungalows. There was no, I don't even think there was water in there yet. I was just. building the building itself.

Okay. And then the case that you referenced, was that a county matter? I just don't recognize that number.

Yeah, it's a county matter. I think it's, I think the number is, so this was signed, may I approach the bench?

Yes, you may.

Hearing Officer Hopp, in just doing some quick research too, it looks like permit or development permit 175020 was a variance by Jerry West, was a setback in density variance. I'm not sure what the conclusion of that variance was, but then there was an appeal, which is the 175021, which was the appeal to the Jerry West variance case. And again, I don't have any conclusion of what those, if it was approved or denied.

Do you know what the hearing officer did with this? Okay. Okay, understood. Dominic, can we pull that order? We'll have it on the record. I already wrote it down. Yes, thank you.

Hearing Officer Hopp, I already have staff looking into those orders so I can pull those orders and provide them once they're available.

Okay, let's go ahead and I'm going to leave the record open so that we can get those orders pulled and added to the record. Preliminarily, I'll do it until next Monday at 5 PM. If we need more time, we can do it. I can grant that. And also, if needs must, we can get the copy that you have and add it as well. Hopefully, we have that as part of our records. So those are the only questions that I have for you. Miss Martinez, do you have any cross-examination for the witness? Or the witness. I'm sorry, the applicant. OK, thank you. She's shaking her head no. All right, Ms. West, I appreciate your time today. You're excused. I'm going to ask if there's any public comment. If there are any public comments for this matter, I have one gentleman who's raised his hand. I will give you a chance to make the last word.

And then do I go sit down now?

Yes, please. Just by show of hands, is anyone here to make public comment for this matter other than the gentleman who's standing? All right, sir. Floor zero is coming up. I will ask in the interest of time, though, that you try to keep your comments brief. And I do need to swear you in, so thank you. Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury? I do. Thank you. For the record, can you please state and spell your name and also give your address, please?

My name is Dennis Kurtz, K-U-R-T-Z. My address is 42 San Marcos Road West in Santa Fe. New Mexico 87508. Thank you. And I understand that I am under oath.

Thank you, please proceed.

I'm here this afternoon to speak on behalf of my neighbor. So my property, my wife's and our property is Caddy Corner, to Sarah's property across the road, and we share kind of a four-corners boundary, and to just give a neighborhood perspective on all of this.

Okay.

I have before me the criteria that you referenced, 4974. So in my view, and just for the record, because some people know, I am past president of the San Marcos Association, a registered organization under after two of the SLDCs. So I'm familiar with a lot of these codes and so forth, and I've testified in these situations before, but I'm speaking as a private, whatever, not as a member of SMA at the moment. I do not believe that granting this variance would be in any way contrary to the public interest. My wife and I moved here, retired here, in October of 2017, almost nine years ago, and as near as I can tell, Sarah had all of these things in place then, and it's been a perfectly wonderful experience living as her neighbor and in that neighborhood. I've heard of no neighborhood complaints of any sort. There have been many occasions where Sarah has conducted events through her art studio that brought the community together, so those were all positive things, and I feel like Just letting this continue as it's going would be fine. From what I heard from Ms. Martinez, I don't see for criteria number two that there are any undue hardships. If someone's in violation of the code, I was a disciplinary officer for a school district in California. I dealt with all kinds of things. They deserve a consequence. That's fine. The consequences, the conditions, as they're called here, seem reasonable. So I don't think that granting the variance would impose any undue hardships or exceptional practical difficulties on behalf, on the part of the owner. For number three, the spirit of the SLDC, the idea of affordable housing, accessory dwelling units, the idea of people living multi-generational houses. And I would also add another is just the maintenance and appreciation of the landscape and of the culture and of the region that we live in, which happened through short-term rentals, if those were to happen in these properties. All those things would be upheld by granting a variance. My main point, and this is something I would like to have checked, but the substantial justice. My understanding just from hearsay, I will admit, is that Ms. West was minding her own business, just rolling along, doing what she'd been doing for years when the county sent her a letter or notified her somehow of these alleged violations. And the reason that the county did that was due to footage from drones sent out by the county to fly over people's homes and look for problems. There's been no emergencies at this house. There's no gunshots, there's no fires, there's no medical emergencies, there's no neighborhood complaints. It's far from the road, you can't even see it from the highway. And yet, because of this drone footage, All of this is happening. I'm not a lawyer, and this is not the Supreme Court or something, but I do feel like flying drones out over people's homes looking for trouble, looking for things to go after, is an unreasonable search that I thought, at least when I was a school teacher, I thought that we were protected from. So I stand for questions, if you have any.

No questions. Okay. Thank you, sir. Thank you for what you do.

I work closely with members of the county, Dominic and others, and I really appreciate the work that they do. I've said so on many occasions, and I'm glad to say it again. Thank you.

Thank you. Ms. West, I have one question for you if you could come back up. I need to make sure that we get this on the record. Ms. West, do you understand that you're still under oath? Yes. The staff report and Ms. Martinez's presentation, we each reference eight conditions that the staff will ask you to abide by if the variance is granted. My question for you is, will you agree to abide by those conditions?

Yes, and as a matter of fact, I checked that off, and that was a point I forgot to mention. And yes, yes, yes, yes, and yes. The only one that I thought, well, now wait a minute, is number two, because they're saying You know, it says there just literally no accessory dwelling units shall be allowed. But that is in very fact the category that the guest house would theoretically be in. So are they going to come with a bulldozer and knock it down? Or can I just make it right by doing all the steps? All these... Steps are reasonable, and yeah, in fact, I've started on a lot of them.

Okay. One moment. Ms. Martinez, should that second condition be no additional accessory dwelling units?

That's what I was thinking.

That would be correct.

OK. So the record will reflect that change.

Hearing Officer Hoppe, so just to be clear here, with the approval of a density variance, all three of these dwellings would be considered a secondary and third. None of them would be qualified or identified as an accessory dwelling unit.

That's a fair point. Thank you.

I don't understand that, but okay.

It's that all the properties will be treated the same as a primary dwelling. They will not be technically accessory. So the language in that context is correct, but the effect of it is that what you have is what you have. There will be no additional structures on the property.

But I wonder if by naming it such and not naming it an accessory dwelling unit, That that hurts my chances, you know, of it getting approved or tomato, maybe?

From where I'm sitting, the analysis doesn't change.

Okay. Anything else?

No, that's all. Thank you very much.

Hearing Officer Hopp, I do have some information on that case. If you would like for me to read it off, and then I could provide you with the order as well.

Yes, please.

So on April 27, 2017, the application was presented to the hearing officer. The hearing officer recommended denial of the requested variance. Then on May 15th, 2017, county staff recommended denial and presented to the Santa Fe County Planning Commission. The Planning Commission approved the variance. And then there was an appeal to the Board of County Commissioners that went forward on October 10th, 2017 by a aggrieved party. And the variance was upheld by the Board of County Commissioners.

That's helpful. In light of that, assuming these things can be found, let's add the Board of County Commissioners opinion to the record. And if you can find the hearing officer's recommended order, let's add that as well. I don't think the intermediary steps are necessary. Okay, with that, and again, let's leave the record, let's try to get that done by 5 p.m. on Monday, and so technically we'll leave the record open, but as soon as we close the record, I will take this matter under advisement. Within 15 business days, I'll submit a written recommendation to the Planning Commission, which will include my findings of fact and conclusions of law. So with that, we will, this first matter will be concluded for today. I appreciate everyone's time and preparation. I know it's not always easy to get here on a Wednesday afternoon, but I appreciate everyone's help with that. With that, let's go ahead and move on to the second matter. I call case numbers 26-5170 and 5171, which are applications for conditional use permits and variants by Duke City Ready Mix, which I will just refer to as Duke City. Since we're in Santa Fe, that shouldn't cause any confusion. If we were in Albuquerque, I'd have to come up with something else. Are you here to present for the staff?

Yes, hearing officer.

Could you please raise your right hand? Do you solemnly swear that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury? I do. Thank you. Please state and spell your name for the record.

David Ruiz. Development Review Specialist Senior. I decided $240,000.

Mr. Ruiz, as with the last matter, I do want to make clear I've read the staff report for this. I've read all the exhibits. I'm fairly familiar with the facts. It would be helpful, and perhaps to everyone in this room in the interest of time, for you to focus your presentation on the factors that you think are the most important, the things that, if I remember nothing else, I should be sure to take away. In other words, I leave it to your discretion, but it would be probably most helpful for me to hear the most important aspects of the application and the staff's position.

Okay.

First off, thank you for your answer. Chabot ReadyMix, LLC, DVA, Duke City ReadyMix applicant requests a conditional use permit in accordance with Chapter 80.11.2.4 to allow a concrete processing facility.

Excuse me, I'm going to stop you. Make sure that you adjust the microphone that you're speaking directly into it.

Do you want me to repeat that?

Yes, please.

So applicant requests a conditional use permit in accordance with Chapter 8.11.2.4 to allow a concrete processing facility. The applicant also requests a height variance from the requirements of Chapter 8.6.7, Table 8-11. The property is zoned residential community and is within the rural commercial overlay zone. The 3.54-acre property is located at 11, I'm sorry, 17747 US Highway 84 slash 285 within Township 19 North, Range 9 East, Section 28, Commission District 1, SDA 2, Parcel ID 99307513. Shiver Ready Mix, LC, DBA, Duke City Ready Mix proposes a processing plant concrete facility on 3.45 acres, more or less located at 17747 US Highway, 84285 Santa Fe, New Mexico. The plan will support regional construction projects throughout northern New Mexico requiring ready mix concrete. The facility will utilize modern dust control measures at the ground level. Improvements will include a portable concrete batch plant, a 270-square-foot support office or a context container, 35,000-gallon tank water, and generators for power. The site will be graded and partially paved to support operations. The subject property was created on December 22, 2015, by an approved plat, and it is owned by Manuel Roybal and Selena Roybal. The property will be leased to Duke City ReadyMakes, who is proposing to develop a concrete processing plant lease agreement and exhibit. Applicant has agreed to remove all equipment and bring the property back to its original condition once lease is over. The applicant has addressed and staff has reviewed the following applicant applicable design standards as per chapter seven, sustainable design standard. access and easement, roads, fire protection, landscape and buffering, fences and walls, lighting, signs, parking and loading, water supply and conservation, liquid waste, protection of historic and archaeological resources, terrain management, air quality, and noise. The applicant has addressed the CUP and various criteria and staff responded to the applicant's comment as contains in the memo. Hearing Officer Haupt, would you like me to read the staff responses at this time?

This is to the conditional use permit criteria? Correct. Yes, please do.

Okay. It will not be detrimental to health, safety, and general welfare of the area. Staff respond. Staff finds that proposed use as conditional will minimize potential impact to the surround area and will not be detrimental to health safety and general welfare of the surrounding area. To the second, the project will not tend to create congestion in roads. Staff response is the proposed facility is projected to generate an average of 25 trips, which is not anticipated to create an abnormal increase in traffic or congestion in the area. Access to Highway 84-285 will facilitate traffic movement while minimizing impact to nearby residential roadways. To number three, the development will not create a potential hazard to fire, panic, or other danger. Staff responses, the proposed facility will be required to comply with applicable Santa Fe County Fire Department requirements, environmental regulations, and applicable requirements of the SLDC. With required safety measures and emergency access in place, the development is not anticipated to create potential hazard for fire, panic, or other dangers. To number four, the proposed will not tend to overcrowd land and cause undue concentration of population. Staff responds, the proposed concrete processing facility is manufacturing use that will not include residential development or public occupancy, and it is not anticipated to increase population density or result in overcrowding additionally The proposed facility is temporary and the site will be restored upon termination of the lease per the applicant. To number five, the operation of this development will not interfere with adequate provisions for schools, parks, water, sewage, transportation, or other public requirements, conveniences, or improvements. The staff responses. Staff finds the proposed facility will not generate residential or school-related demand and is not anticipated to place the undue burden of an existing public utilities, transportation, or other public services and infrastructure. So number six, the facility will not interfere with adequate light or air. The response, staff response is the proposed DAW suppression measures, operation controls, and downward-directed lighting are intended to minimize impact and air quality. To off-site layer, the facility will be required to comply with applicable SLDC EPA environmental requirements and is not anticipated to interfere with adequate light and air. And to number seven, the development will not be inconsistent with the purposes of property zoning classification or in any other way inconsistent with the spirit and intent of the SLDC or SGMP. The staff responds. The proposed facility is consistent with the CUP uses allowed with a rural commercial overlay and will be required to comply with all applicable provisions of the SLDC. As proposed and conditioned, the development is consistent with the spirit and intent of the SLDC and SGMP.

Thank you, sir. Let's move on to the variance aspect. Am I correct that a variance is required due to the height of the facility?

Hearing officer, that's correct.

And the height that they proposed to build to, is that necessary because of the nature of the operations, plant equipment, things like that? That's correct. Okay. Let's go ahead and dispense with that aspect. As with Ms. Martinez, no matter what you said today, I will rely on every word of this report. So no need to go over that. But I think it would be helpful to get any conditions that the agency, sorry, that the staff... as conditions for the variants are stated into the record. So my understanding is there are six conditions. Is that correct? That's correct. Please go ahead and read those into the record.

So the conditions of approval. ECUP site development plan showing the site layout and any other conditions that may be imposed throughout the approval process shall be recorded at the expense of the applicants in the Office of the County Clerk in accordance with Chapter 4, Section 4.9.6.8. Number two, the applicant shall obtain all necessary development permits with Santa Fe County. Number three, the applicant shall obtain a Santa Fe County business license. Number four, the applicant shall comply with all review agency comments and conditions. Number five, the applicant shall submit a detailed lighting plan which meets the requirements of chapter 7.8, lighting of the SLDC. No further expansion of the proposed facility shall occur without prior approvals from Santa Fe County.

Okay, thank you, and the record shall reflect those conditions of approval. Mr. Ruiz, at this time, I have no questions for you. Let me ask very quickly, who's here presenting for the applicant? Um, why don't you come up to the microphone as before? I'm just going to ask you, do you have any, well, I assume you're not going to challenge the staff's position seeing as they support this. Uh, do you, are there any, any questions you want me to direct the staff for the purposes of clarification? Anything like that? Okay. Very good. Um, Mr. Ruiz, I will excuse you. Thank you. And then next step applicants, if you want to come make your presentation.

Yes, that's fine.

You're going to have to do multiple swearing-ins, and you'll have to move the microphone around. But why don't we do the oath together, if you could both raise your right hand. Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, under penalty of perjury? One at a time, state and spell your names for the record.

Christy, K-R-I-S-T-I, Ingro, I-N-G-R-O.

Thank you very much.

Actually, Christy, hang on. What's your relationship to the applicant?

I am the compliance coordinator for Duke City Ready Mix.

Okay. Do you mind providing an address for the purposes of this hearing?

It's 77, for me or for?

Let's go with just you. I've been doing that pretty consistently across these hearings.

Is 6340 Mesquite Drive Northwest in Albuquerque 87120?

Very good. And sir, if you could please state, spell your name for the record and provide an address for us.

Joel Martinez, J-O-E-L-M-A-R-T-I-N-E-Z. I am operations manager for Duke City Ready Mix. Address is 8109 Emerald Sky Avenue Southwest, Albuquerque, New Mexico, 87121.

Okay, very good. So I'll let you guys present how you want to present with the caveat that I've read the materials that you've submitted to the county. I will rely on them unless you tell me not to right now. So you don't have to just repeat that information. I think maybe the best way to think about it is things that you want to make sure I know, the things that are most important to this application from your perspective. That would be the most helpful for me. And just whoever speaks, just make sure you're speaking into the microphone.

I think we're just, we're a New Mexico family-owned company, and we've been growing, and we have quite a few plants around the state. And we're pretty excited about northern Santa Fe. We're already in southern Santa Fe. You can talk a little bit more about how the northern Santa Fe will help with the southern Santa Fe. But we just, we're excited about the community. Our owners... especially the one that's very active with us. He's very excited about everything New Mexico. I don't know if you guys have seen the concrete ready mix balloon up in the air for Balloon Fiesta, but that's ours. And he's just thrilled to be part of New Mexico, anything he can be involved in in the community. And we do a lot with the community. So as far as logistics, Joel knows a lot more about that, but we just... We're really excited for this property, and we're really excited to bring our concrete, which is real high-quality concrete. We're proud of it, and we would love to be in the northern part of Santa Fe. Want to talk a little about why?

Absolutely. So like Christy stated, we're a New Mexico-owned company. Thank you. We're excited to come up to northern Santa Fe. Our concrete and our batch plants have a limited ability to go out ways. It can range anywhere between 90 minutes to an hour and a half before the actual concrete starts setting up. We made a presence, like Christy said, and we We just like what we're here and we like what we're doing. We're all contributing to the community. So we're excited, like Christy said, to be part of it. And we run a tight ship on all of our plants. So this is not going to be any different. So what we already do. Go ahead.

And also, I just wanted to say earlier that I absolutely appreciate the staff as well. We started this in September of last year. It's been a long time. It's my first time ever doing this. And David, in particular, has been great. And I had no idea what was going on in the beginning. And he guided me the whole way and helped me out, even though my questions didn't make any sense. But yeah, we're willing to do whatever the Santa Fe code tells us to do, we're not trying to do anything different. So if they say to do this, we'll do it. We don't have any reason to do anything differently than what is written in the codes.

Very good. So then that leads to one of the questions that I had. We just heard from the staff that they would impose six conditions on approval for the variance. Will Duke City abide by those if the variance is granted?

Absolutely.

I also have a question about the community involvement process, the neighborhood meetings, things of that nature. Has Duke City received any opposition or concerns from community members with respect to this project?

We have. We initially held our neighborhood meeting and there was none from that, but we I wasn't aware that we were supposed to invite the ROs. And so right away, when I found that out, I was communicating with the ROs. There were five of them. And one of them, her organization had dissolved. One said, I received your packet. And that's fine. She didn't have anything to say. One person in particular, I think his name is Robert Cordingly, He did not answer email or phone messages, but there is an organization, excuse me, I think it's the Coalition for Clean Energy, and there are two members there that were amazing. Lee Zlotoff, I think his name is, he emailed quite a few concerns, kind of more so explaining to me what the concerns were and And, you know, not really negative, but just wanting me to know. And then a gentleman named Jim Wheeler actually met with my colleague Caitlin and myself here in Santa Fe and educated us really well on the water, you know, what's going on with the water here in Santa Fe and the different things with, you know, the Bishop's Lodge and Tuskegee and just really educated us. And so... He also didn't really have any negative things to say to our project. He just wanted us to know how important it was to the people of northern Santa Fe that we respect the water. And we do recycle our water that we use to clean our trucks with. We definitely recycle. That's a lot of water. And he told us about... how we could use recycled, treated, non-potable water. And so we are exploring that area. We have a lab at our main office, and we do testing every single day. So we are talking about exploring non-potable water, and we are committed to looking into that. We're not sure how it would affect the final product. We have a pretty high quality product, so we're not sure about that. We'd have to do research and testing. And it might be a while, but we are interested and committed in looking into that. So his concerns were mostly helpful in letting us know what would be more acceptable to northern Santa Fe.

Understood. Mr. Ruiz, any cross-examination?

Okay.

If you guys have nothing else to say at this time, I will open up to public comment. As always, I'll give you guys the last word, but let's, why don't you have a seat and we'll see.

Thank you, Mr. Hearing Officer. We appreciate you.

Yeah, thank you.

A show of hands, is anyone here to offer public comment for this matter? No hands are raised. Anyone online?

Hearing Officer Hopp, there is no one online indicating that they wish to speak on this matter.

Okay. Staff, anything else we have to address on this matter? I'm getting a head shake, getting a no. Very good. With that then, there being no public comments, parties having made their presentations, I will take this matter under advisement. Within 15 business days, I will issue a written recommended decision to the Planning Commission, and that will include my findings of fact and conclusions of law. Thank you for your time today. Appreciate it. We're back on time, so let's go ahead and move to the third matter. I call case number 26-5190, a variance request by Michael Wright. The staff, here we go, Ms. Martinez, thank you. I'm gonna go ahead and swear you in again. May not be necessary, but better safe than sorry. Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury? I do. For this presentation, I think it would be helpful to get a summary on the record, as you did before, and then moving directly into the variance criteria. Again, I've reviewed the staff report and the exhibits there, too. If there's anything in the staff report that needs to be clarified, corrected, or added to, this would be a great time to do that, of course. But otherwise, I'll leave you with that direction. All right.

Sorry about that. Thank you, Hearing Officer Hopp. Marie Martinez, I'm presenting on behalf of Kimberly Serrano, Development Review Specialist Senior. Michael Wright, applicant, requests approval of a variance pursuant to chapter 5, development review procedures, and chapter 9, table 9-6-2, dimensional standards, MCD rule. of the Santa Fe County Sustainable Land Development Code to allow the subdivision of approximately 35,000, I'm sorry, 35.0615 acre parcel into two lots, approximately 17.533 acres each. The subject property is zoned rural, which pursuant to Chapter 8 zoning, Table 8-2, Rural Zoning District Dimensional Standards, establishes a maximum residential density of one dwelling unit per 40 acres. The property is located within the Madrid Community District and the Rural Commercial Overlay Zone. The subject property is located at one typical way within Section 36, Township 14 North, Range 7Es in Commission District 3 is designated SDA 2 and is identified as parcel number 94002184. The summary. The applicant states that they purchased a property, subject property, identified as Tract B1-E, commonly known as 1 Tipaway, in 2008 as equal partners with Sydney Bryan. In 2016, the applicant and his wife acquired Mr. Bryan's interest in the property and became the sole owner of the entire tract as documented by the quit claim dean, recorded on July 5, 2016, as instrument number 1798074. The property is identified on the approved plat record on September 13, 2004, in plat book 567, page 41. The applicant states that after inquiring sole ownership of the property, they were contacted by the Huber Family Trust, which holds the mineral estates, asserting ownership of the slag material located on the property. The survey submitted identifies the slag pile containing approximately nine acres located on the southeastern portion of the tract. The applicant contends that this claim was unknown at the time of purchase and has created a hardship by limiting the use and marketability of the property. The applicant has indicated that there is a profit-sharing agreement between the previous property owners relating to the mineral rights and associated flag material. The county's review or the requested density does not involve determining the ownership or legal status of those private property interests. The hearing officer's review is limited to the applicability requirements and criteria of the Sustainable Land Development Code. Any private agreement or arrangements between property owners may be considered by the parties as appropriate, but the county does not make determination regarding the validity and enforceability or effect of such agreement as part of this density of variance review. The applicant further states that the property was historically included within the town site of Madrid as identified in ordinance number 2002-1 and asserts that the previous zoning designation permitted one-half acre lots. While the property historically zoning provides context for the applicant's request, the subject property is currently zoned rural and is located within the Madrid Community District overlay and the rural commercial overlay zone. Pursuant to the currently adapted Santa Fe County Sustainable Land Development Code, Chapter 8, Section 8.6.2, the rural zoning district establishes a maximum residential density of one dwelling unit per 40 acres. The Madrid Community District and Rural Commercial Overlay Zone do not alter the underlying residential density requirements applicable to the property. For the request is not contrary to the public interest. The applicant has noted that zoning within the Madrid Township allows for smaller one-half acre lots. Staff recognizes this distinction and has considered applicant's representation regarding the town site. However, the presence or smaller lots within the town site by itself does not establish that the requested variance is consistent with the applicable county standards or that approval would be consistent with the public interest. Under Ordinance 2016-9, Sustainable Land Development Code Chapter 9, Section 9.6, Table 9-6-2 identifies a minimum density requirements of one dwelling per 40 acres. Based on the information currently available in the record, staff is unable to make a findings that the requested variance is consistent with the intent of the SLDC or that approval should be adversely affect the public interest. Number two, we're due to extraordinary and exceptional situations. Staff recognizes the applicant's concerns regarding the slag pile and the circumstances surrounding its ownership, as well as the applicant's statement that these circumstances have affected the use and marketability of the property. However, based on the information available to staff, the circumstances described do not demonstrate that the strict application of the code would result in the type of peculiar and exceptional practical difficulties or exceptional and undue hardship contemplated by this criterion. Concerns regarding ownership of the slag material are primarily private property matters and do not in themselves establish the applicable density requirements cannot be applied to the property. In the spirit of the SLDC, the applicant has described the property's topography, existing improvements, and potential future use of the slag material. Staff appreciates the additional context provided regarding the property and the applicant's proposed use. However, based on the information currently available in the record, staff is unable to determine whether granting the requested variance is necessary to further the spirit and intent of the Sustainable Land Development Code or that substantial justice would be served by approval of the request. While the circumstances described by the applicant have been considered, the record does not provide sufficient evidence for staff to make the required findings under the criterion. Accordingly, staff finds that this criterion is not sufficiently demonstrated and recommends denial of the variance request.

Thank you, Ms. Martinez. Does the staff have conditions that they want to read into the record should this variance be granted?

Yes, they do.

Please do.

First one, the applicant shall provide an updated liquid waste permit from the New Mexico Environment Department with a development permit application. Two, the applicant shall provide an updated well permit from the Office of the State Engineer with a development permit application. Number three, the applicant shall comply with all fire prevention division's requirements at the time of the development permit application as per 2021 International Fire Code, IFC 2021, and 2021 International Wildland Urban Interface Code as amended by Santa Fe County Ordinance 2023-03. Number four, approval of the variance does not waive compliance with any other applicable provisions of the Sustainable Land Development Code, county ordinances, or applicable local, state, and federal regulations. Five, any future subdivision or plot implementing the variance shall be reviewed and approved in accordance with the Sustainable Land Development Code prior to recordation. Six, no further subdivision of the property beyond the proposed two lots is allowed. Number A7, applicants shall record a land division. The plot shall be reviewed and approved by the Santa Fe County, demonstrating compliance with all applicable requirements of the SLDC. Eight, the variance shall automatically expire within one year of the approval unless implementing the variance is filed or substantial construction of authorized improvements has occurred.

Okay, thank you, Ms. Martinez. The record shall reflect those conditions. At this time, I have no questions for you, but I am going to ask the applicant if they have any questions for cross-examination. So you can return to your seat, but you may have to come right back up. Who's here on behalf of applicant today?

You mind coming up, sir?

Are you Mr. Wright? Yes. Okay. Do you have any questions you want me to direct to the county staff? Anything like clarification, things in that regard? This is not an opportunity, this is not in lieu of your opportunity to make a presentation, it's just you have a right to cross-examination, and so I'm wondering if you have any questions in that regard. Okay, what's that?

So it's stated in here that the Hubers are the mineral rights owners of that pile, but But it has not been proven that they actually own that material because in 1974, they were asked by the Bureau of Mines and Reclamation to remove the pile. And shortly after, they sold the property. And there was no warranty deed attached to that sale. Then the property was sold to the gentleman, Sid Bryan, who brought us in as partners, did not share this information with us. So we were unaware. That's right. I'm sorry. I want to stop you.

questions for the staff. If you want to clarify the record, that's fine. You can do that as part of your presentation, but just do you have any questions? So my question is, is the staff aware of this? Of the disputed ownership of the slag pile? Correct. Sure, I'll allow that question, Ms. Martinez.

Hearing Officer Hopp, my understanding is that the original case manager, Kimberly Serrano, that that part of the presentation, and that may have been a statement that she may have taken or thought was from the applicant. So I don't think we have any clarification on that, but we would be more than happy to make a clarification.

I mean, that's fine. At the end of the day, my guess is, Mr. Wright, you're going to say that under oath and offer that. clarification to the extent the record does conflict with that information, I'm fine with that. I don't think we need to get the staff's position necessarily. As long as you do make that part of the record, we can go with that. So thank you, Ms. Martinez. So with that, would you, let me get you under oath and I'll let you make the presentation that you want. Can you please raise your right hand? Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury?

I do.

All right, thank you, sir.

Please go ahead with your presentation. So in 2008, we purchased the property with Mr., Brian and with an agreement that there would be a flat created that would split the 35 acres into two 17.5 acre lots and a survey company came out and they did a survey and I presented that document to Mr. Brian and he acknowledged it. It was never stamped by the county as a legal document. And that's the document that I'm using as the plat that shows the property from that date. So much later, after we purchased the property, a gentleman approached us, can I use some of this material? And trucks of the material would be taken out of there. And about a year into that, a gentleman approached, not me, but somebody on the job site, and said, hey, that's our material. You can't move that. And a letter was sent from a from a law firm in Albuquerque telling us to cease and desist. And this was the first time that we were aware that somebody else thought that they owned that. So obviously I said, can you prove you own it? And we went into legal negotiation and we settled with each party getting a percentage. And that's the... revenue sharing agreement that Mesa Cisneros has. So for us, my wife and I, we're not legal people, we're not businessmen, we're artists, and we live in Madrid for that very reason. And so we don't want in the future to have a problem if we go to try and sell that property that someone says, hey, this There's this revenue sharing agreement attached to this. I'm not going to buy this. And if we give the land to our daughter as well, we don't want this situation to have to be resolved through the courts, et cetera. So that's the idea, is to separate that upper half. There's a natural border. So if you'll just imagine this property, it's the lower lot is where the old rail yard was for the mine. And the trains would come in and turn around on a turnstile and go back out. And then the upper half of the mountain, there's a road that goes up, and the upper half is where they discarded the refuse. And there's several piles, and the largest one is on our property. And so my proposal is to create a line at the top of the hill so that the lower part, which is a 3.5 buildable lot, is separated from the upper lot, which is currently not usable. The material is not usable because there's a moratorium on mining and moving material in Santa Fe County. And we've approached the land use department about this. And it's a very long and tedious process without much support. So at this point, I just want to separate that pile into its own lot. And so then, because we have a residence down below, and we're granted the right to build another accessory dwelling down below, and everything was done legally. You know, the power, the septic system, the construction of the building, everything has its legal permits that Mrs. Martinez described that I need to update those. So this is my request, and that's the hardship that I'm having, and my request for the Variance Committee to accept this.

All right, so my first question, and you've heard me ask others this question today, if the variance is granted, will you agree to abide by the conditions that have been imposed by, or that the county staff are recommending?

The conditions that the county staff?

Yeah, so it's in the staff report. Okay. And Ms. Martinez read them into the record earlier.

What number is it, sir?

It's the second to last page of the staff report.

Okay, second to last, number three. Okay. Okay. Yes, okay. Those are all the inquiries. Yes, I was paying attention when she said that. Yes, I agreed to those conditions.

You will own both of the parcels if they're split, correct? Correct. Can you explain a little bit how the revenue sharing agreement that you described limits your ability to sell the property?

Because not everybody wants to be in an agreement, a legal agreement about, you know, some mining material slag pile that they don't know what the value is. It's very complicated. The revenue sharing agreement, if you read it, it's 30 pages and it's by no means a completed deal because it's... That revenue sharing agreement was created with another entity, the Huber Heirs. There's nine of them, and I think there's more now. So it's a large group of people. And their father, their grandfather, was Oscar Huber, who owned the mine. And so they have a dispute about the mining rights. So if anyone were to do due diligence and look into that, they would find some difficulty with it. That's what I'm saying.

Okay, understood. Okay, those are the only questions I have for you at this time. I'm gonna see if we have any public comment, but I will give you the last word if anyone does have any comment on this. Is there, by show of hands, is anyone here to make public comment on this application? No hands have been raised. Oh, yes, one hand has been raised. Come on up, sir. Let me go ahead and get you under oath. Can you raise your right hand? Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, under penalty of perjury? I do. Thank you. Can you please state and spell your name for the record, and then please provide us with an address as well? Make sure that you adjust the mic so that you're speaking into it.

Mark Starvis, S-T-A-R-V-I-S, 2801 Highway 14. Rios, 87010. Thank you, sir. Please proceed. I'm just here in support. Okay.

Anything in particular?

It gets granted what he's asking for. I'm a neighbor. I live up above, and I oversee the mound of...

Yeah. Okay. Does the division of the property that's being proposed here, would that impact you in any way as the neighbor?

Just kind of like an eyesore. He should be able to do with, in my opinion, do with what he wants with the property. And from what I get, his hands are tied. And it would greatly help him and

i'm in support for it and then they can do something with it maybe okay the property all right that good great yeah thank you sir appreciate it okay uh dominic do we have anyone online hearing officer hobb um there's nobody indicating online that they wish to speak on this matter okay very good staff anything else that we need to address with respect to this matter

No, there are no other items on this.

Mr. Wright, I assume because his comments were in support, you have nothing else to add? Okay, thank you. Okay, with that, then I will take this matter under advisement. Within 15 business days, I will render a written recommendation to the Planning Commission that will include my findings of fact and conclusions of law. Thank you, everyone who presented, and thank you for your time today.

So with that, let's move on to the final matter.

Let's see. That is case number 26-5180, a variance request by Jeff and Laurie Gose. Mr. Ruiz, hello. Can you please raise your right hand? Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth?

I do.

Please proceed.

Before I start, we did receive a letter of opposition this morning. I'm going to...

Yes, please. Thank you. All right. Mr. Ruiz, just for the record, can you summarize what this document is?

Yes.

Your Honor, I can. Before I start, though, there was a little typo on the report on the dates of noticing. Okay. I want to make sure the corrections are on the record.

Yes. I have the report up. What are we correcting?

So during on the administrative history, on the postings for the newspaper,

Yes.

It reads March 26, 2025. It is supposed to read August 26, 2026.

OK, thank you. The record will reflect that. Mr. Ruiz, so this letter, September 9, 2026, from High Summit, specifically John Pringle, president of High Summit HOA, is that right?

That's correct. OK, thank you.

So I will treat this as an exhibit

this hearing and specifically to this matter and that my recommended order will reflect that thank you here's an officer so um issue joff and lori goes applicants through their agent gabriel brown requested variants of section 7.17.9.2.3 of the sustainable land code ordinance 2016-9, hereafter SLDC, to allow a residence to be constructed on a natural slope of 30% or greater, a variance of SLDC section 717-926 to allow the residence finished floor elevation to exceed five feet above the natural grade at any point, and a variance of SLDC section 717-1011 to allow the residence to be constructed such that more than 50% of the structure may be located on the slope that is between 20 and 30%. The property, which is 0.71 acres and in the residential community zoning district, is located at 2754 Spencer Snow within 17 North, Range 17 East, Section 17, Commission District 3, SDA 2, Parcel ID 990-001728. In the matter of the variances, building and development services staff has determined that this application is incomplete compliance with the SLDC, but it is in line with the criteria necessary for granting a variance. Due to the topography of the lot, The applicant is unable to construct a home on the lot without variances. The applicant has met the variance criteria where due to extraordinary and exceptional situation or conditions of the property, the strict application of the code will result in peculiar and exceptional practical difficulties or exceptional and undue hardship on the owner. To construct any residence on the property, a variance request is necessary. This causes peculiar and exceptional practices, practical difficulties or exceptional and undue hardship on the applicant owner. Based on this proposal, minimizing the amount of disturbance of terrain to construct a residence will allow the applicant's proposal to meet the spirit of the SLDC. Staff recommends approval to allow a variance of chapter 717.923 to allow a residence to be constructed on a natural slope of 30% or greater, a variance of chapter 717.926 to allow the residence to exceed five feet above any natural grade, and a variance of chapter 7, 17, 10, 1, 1 to allow the residence to be constructed on average slopes of 20% where the SLDC only allows that only 50% of the structure may be located on slope that is between 20 and 30% with the following conditions imposed. Condition one, substantial construction of the buildings or structure authorized by the variance shall occur within one year of the date of approval or the variances shall expire as per section 4975 of the SLDC. The proposed resident number two, the proposed residents shall follow all other pertinent requirements of chapter seven of the SLDC. Number three, the applicant shall follow the conditions of approval set by the Santa Fe County Fire Department Number four, the area shall be fenced prior to commencement of construction to prevent damage to all areas that are not designated as the disturbance area on the lot. Number five, the applicant shall install wattle around the perimeter of the construction to control erosion as approved per staff. Number six, no development shall occur without a development permit.

Thank you, Mr. Ruiz. Those conditions are written into the record, or shall be treated as part of the record. I have no questions for you at this time. Who's here on behalf of the applicant? Sir, come on up quickly. What's your name, sir?

My name is Gabriel Brown. I'm the agent.

Okay, Mr. Brown, I assume you don't have any cross-examination for the staff, seeing as they're in support of the variance request? No, sir. Okay, very good. So at this time, Mr. Ruiz, I formally excuse you. Thank you for your presentation. Mr. Brown, let's go ahead and get you under oath. Raise your right hand. Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, under penalty of perjury? I do. Thank you. Please state and spell your name for the record, and please provide us with an address.

My name is Gabriel Brown, G-A-B-R-I-E-L-B-R-O-W-N-E. My address is 7604 Old Santa Fe Trail, Santa Fe, New Mexico, 87505.

Okay, please proceed.

I think I can make my presentation very brief. I think staff's report is thorough and correct. A few statistics, 90% of the lot is on terrain of 20% or more. Only 9% has slopes of less than 20%. Without these variances, we've looked at several design solutions for this. Without these variances, it's really not possible to build within the setbacks that were otherwise restricted to by the homeowners association. I think I'll let it rest at that unless you have any questions.

I do have a couple questions. So first of all, there were the six conditions that are listed in the staff report that the staff read here today. Would the applicant agree to abide by those conditions if the variance is granted?

Yes, they would. Okay.

So I'm looking at the application that you submitted on behalf of the applicants, and on page one, a few paragraphs in, it states, we've asked for a variance of the HOA setback requirements and have been refused. Can you tell me a little bit about that request and Just generally what all that entailed and what communications you had with the HOA with respect to that request?

It's fairly simple. The lot is long and thin as it exists. Santa Fe County ordinances require a five foot setback on the sides and five feet in the front. The homeowners association by covenant requires 20-foot setbacks on the side and the front, although they, of course, have the right to vary from those rules on where they deem it appropriate. We applied for a variance to them, and they essentially refused it and said no.

Okay. How much does it cost to apply for a variance with this HOA?

I don't. We're billed on an hourly basis for the time of a consultant to review the application, but I don't think there's any application cost.

Okay. Have you seen this letter that the High Summit HOA submitted?

Yes, I saw it this morning. Okay.

Do you have a response to the claim on the first page that says, and I'll just read this, I quote, High Summit has been kept intentionally blocked by the owner's architect and the owner themselves from seeing any plans of their potential home or submittals for a variance request, close quote?

Yeah.

No intent to keep the Homeowners Association in the dark. When I saw that this morning, I responded with an email and copies of the drawings that we submitted to the county.

All of our design processes by understanding homeowners requirements, Santa Fe County requirements, other

Hearing officer, there are only four people online, and I do not see the applicants online at this time.

All right. Well, if we learn that they're here, I'll give them an opportunity to say a word. With that, let's move on to public comment. Is there anyone here to comment on this matter?

We have a few people.

So let's go ahead and we'll start with the gentleman in this row, and then we'll get to you after them. So come on up, sir. And please raise your right hand. Do you solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury? I do. Can you please state and spell your name for the record, and please provide an address? Yes.

Stan Yates, S-T-A-N-Y-E-A-T-E-S, last name. I'm at 1149 South Summit Ridge, Santa Fe, New Mexico, 87501.

Thank you, Mr. Yates. Please go ahead.

In the interest of keeping these comments concise, please allow me to speak from the notes. Sure. One of the reasons that I chose and my wife chose to purchase property in High Summit was the community's commitment to maintaining high architectural and construction standards. Those standards protect the character of High Summit, its natural landscape, and ultimately the property values of everyone who owns a home there. Those design standards are grounded in the High Summit Homeowners Association's amended and restated declarations of restrictive covenants adopted March 28th of 2015. The issue before you today concerns a requested variance from Santa Fe County SLDC Section 7.17.9.2.6. Provision states... Finished floor elevation of any structure built on a natural slope between 15% and 30% shall not exceed five feet above the natural grade at any point. That requirement appears within the county standards covering steep slope and ridgetop development. I want to explain why this county standard is particularly important to High Summit and why the High Summit HOA objects to a variance allowing this proposed structure to exceed that five-foot limitation. There are three provisions of High Summit's covenants, conditions, and restrictions, CC&Rs, that are especially relevant. First, section 6.1.23 expressly connects construction within High Summit to Santa Fe County's terrain management requirements. It states, all applicants for a building permit must conform to the land use code, the applicable governing body regarding terrain management. Of course, the applicable governing body is, in this instance, Santa Fe County. That provision is significant because SLDC section 7.17.9.2.6 is precisely the type of terrain and slope development standards contemplated by the High Summit Covenants. High Summit's architectural standards were not written in isolation from the county's terrain management requirements. They were expressly designed to function alongside of those. Second, section 6.2 establishes an independent high summit design review process. It provides that each development plan must be first approved in writing by the design review committee. It further provides no construction of any improvement or structure whatsoever shall commence without prior written approval of the design review committee. This distinction is important. County approval and high summit approval are separate requirements. A county permit or a county variance does not substitute for approval by the high summit design review committee. Third, section 6.3.1 expressly gives the high summit design review committee discretion when an owner requests a variance from the HOA's architectural requirements. The provision says that the committee may allow reasonable exceptions or variances, but only upon showing of good cause in the absence of materially unreasonable impact upon other owners, and when the variance remains consistent with the architectural standards established in Section 6.1. The words may allow do matter. The CC&Rs do not say that the Design Review Committee must grant a variance because Santa Fe County grants one. In fact, Section 6.3.2 reinforces that distinction. The drafters of the High Summit CC&Rs expressly considered situations which an HOA requirement might conflict with governmental building requirements. They identified the circumstances under which the HOA must grant an appropriate variance. Those circumstances are very limited. A variance becomes necessary when enforcement of the HOA requirement would prevent construction of a dwelling on the lot or render the lot inaccessible to a roadway or otherwise render that lot unusable by the owner. None of these circumstances exist here. Adherence to the five-foot standard does not make this lot unbuildable. It does not prevent the construction of a residence. It does not make the property inaccessible. And it does not render the lot unusable. A requested departure from the five-foot limitation therefore appears to be a matter of accommodating this particular architectural design rather than something necessary to permit reasonable use of the property. I believe this distinction is important. High Summits CC&R contain broad terrain-sensitive architectural requirements. They call for maintaining an environmental in harmony with natural landscape and require site drainage and grading to be accomplished with minimal disruption to the natural condition of the lot. Allowing the building design to rise substantially beyond the county's established five-foot finished floor limitation is therefore not a trivial matter for the High Summit community. It directly implicates the terrain-sensitive design principles upon which both the county regulation and the High Summit architectural standards are based. For those reasons, High Summit has a substantial and legitimate interest in preserving the five-foot finished floor standard in this case. Hence the HOA objection to granting a variance that would allow the proposed structure to exceed five feet above natural grade at any point. If Santa Fe County grants a variance from SLDC Section 7.17.9.2.6, that decision would establish what the county is willing to permit. It would not require the High Summit design review to approve the design, nor would it require High Summit to grant a corresponding variance under its own covenants and architectural standards. In closing, I respectfully ask the Commission to deny the requested variance and preserve the terrain management standards established in the referenced SLDC section. Thank you. Thank you, sir. Who's next?

Good afternoon. Please raise your right hand. You solemnly swear and affirm that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury. I do. Thank you. Please make sure you speak into the microphone, adjust it as necessary. Feel free to do that. And please state and spell your name for the record and provide your address, please.

My name is Peter Venema, spelled P-E-T-E-R. He is in Victor, E-N-N-E-M-A, Venema. I live at 1176 South Summit Drive, Santa Fe, 87501. And this is in the high summit subdivision that we're discussing today.

Understood. Please proceed, sir.

Would like to state my objection particularly to the The middle variance that's been requested seven point one seven point nine point two point six allowing a finished floor height of five feet Please make a note on the record that I do object to this there are 43 houses in this subdivision on a wide variety of mountainous terrain and To my knowledge, none of those requested this variant, and I think it is unnecessary. Thank you. Thank you.

Sir, I believe you as well.

Hi.

James Milt Shapiro.

Thank you, James. One moment. Please raise your right hand. Do you solemnly swear and affirm the testimony you're about to give will be the truth, the whole truth, and nothing but the truth under penalty of perjury? I do. Thank you, sir. You've already stated your name. If you don't mind spelling it.

J-A-M-E-S-M-I-L-T-S-H-A-P-I-R-O, 1136 South Summit Ridge.

Thank you. Please proceed.

I'm requesting a determination whether a proper notice was given for the hearing. I understand the notice requirement is intended to notify property owners so they have a time for a meaningful response and I reside very close to the subject property. And if you look at the applicant's exhibit F, they have sent a mail notice to the physical address of one of my lots, but not to my mailing address, which is clearly available with the county. And I have a copy of the county's record. So I'm requesting that we re-notice and re-hear this after we have some time because I'm just coming up to speed on this and I'm also a layman here. It takes me a while to understand the plans and what's being proposed.

I'm going to deny that request.

Okay. So you're denying the request and can I also ask You make a determination whether I was properly notified as required by SLDC 4.6.3.2.

Based on the information in the record, I will find that you were properly notified.

Based on the information, I'd like to enter into the record my mailing address and physical address. And I also would have you refer to exhibit F and the picture of the envelope that was mailed to me.

It was mailed a property that you reside on and you are here today. I'm going to find that you were noticed.

I would not contest that. However, I would say that the notice did not give me time to properly prepare. I do have some objections, and I'll ask for your forgiveness, because they're not well organized, because I haven't had time to look at this. I just learned of this hearing the other day.

All right. Please proceed with your objections.

I would say that the requested variance of 7.17.9.2.6 is not in the public interest. And that has not been demonstrated. The applicant purchased the property after the 2016 Board of County Commissioner adopted Ordinance 216-9 on SLDC. So they should have been aware of what's required here. Indeed, the objections of Mr. Yates and Mr. Venema are evidence that the variance is contrary to the public interest. And then I'd like to speak to the extraordinary conditions And the train is definitely difficult to build in. I don't believe that this variance is necessary, though. Sorry. I said I'm not very organized. First off, I would suggest that the applicant has provided no evidence that the EHOA has refused a variance regarding the setbacks. Nor have they provided any evidence that the excavation required is extraordinary or an undue hardship. Perhaps more expensive, however, that is part of the deal in building up there. And I have a question for staff or for you. I'd like to know what The applicant stated that construction would require excessive excavation. How is that verified? And what is the standard for the amount of excavation that results in an undue hardship? And I ask that because there are some 40 other homes that have been built. A lot of them have required excavation. Those owners have gone to considerable time and expense to perform that excavation to build their properties. So what is the standard?

Mr. Reeves, do you want to address that?

Hearing officer, could we have the question repeated, please?

Yes. Sure. Sorry. The applicant stated that construction would require excessive excavation that was set in support of the criteria that the variance was required because of exception of particular difficulties, practical difficulties.

for this purpose is a question of law, which I will take into consideration. And that the view of this property

by allowing that variance in height is going to disturb the natural view from the Dale Wall Trail and from Pileway Forest to Wimby 5 and from the hiking trails there. Okay. Thanks. Thank you.

It also minimizes the need for grading, which can add to erosion. Because what usually happens is when we have these finished floors that are high above the ground, you end up having to put in tiered planters. You're actually extending into the land rather than creating less grading. there's more grading required. So these are the reasons that the DRC is concerned about this five-foot rule. The other thing that I noticed in the conditions is I didn't see any kind of condition on the limit to the five-foot. If you're saying that you would allow the finished floor to be above five feet, there's no limitation on that. So anyway, those are the things I came to say if you have any questions.

I believe the applicant has stated that The variance is requested such that the elevations can be up to 7 foot 6. I would not recommend it be granted higher than what they're asking for. So that limitation would be put in place if I were to grant this variance.

I think we still have a concern about 7 foot 6 for the reasons that I mentioned. But anyway.

OK. All right.

Thank you.

Thank you. Dominic, can I take it away, people online?

Hearing off the top, we have nobody online indicating that they wish to speak on this matter.

OK, very good. Mr. Brown, do you want to respond on behalf of applicant to the comments that have been made?

Thank you for the opportunity.

And you understand you're still under oath, correct?

I understand I'm still under oath.

Very good.

My clients were not able to figure out the technology to get online, but they've sent me this statement, which I'll share. It's very simple. Although we exceed portions of the five-foot limitation, The design respects the terrain management height restrictions, which are a second set of restrictions, and therefore minimizes grading, preserves natural landforms, reduces visual impacts compared to alternative approaches. Allowing the floor to rise a bit more than the five foot rule keeps us from cutting further on the uphill side of the house. In this case, we're cutting, it's a very long, narrow, Property as I've described we're set back to set back With the all of the designs that we looked at can only fit on the property by filling setback to setback We're also limited by 30 foot slopes on them on the extent and for that reason we're we're at HLA required 20 foot setback setback to setback we're we're seven and a half feet out of the ground and the extreme on on the Fill side and we're 14 feet into the ground on the other side So if we were to reduce it, we would be at 16 feet of cut. That's certainly possible But but it seems extraordinary it gets to the point where the windows are not we're at the height restriction of both the homeowners association and Santa Fe County so they're There can't be any windows. If you look at our proposed design, there are no windows on that, let's call it, east-facing element of the building because we're so far dug into the building. I want to say simply that we're talking about three variances here. We need a variance from the 20%. No more than 50% of the property can be on 20% slopes or greater. There doesn't seem to be any argument about that. That is absolutely necessary to build any structure on this property period. We've asked for a small variance, a very limited variance from the 30% rule. There are little islands with 30% slopes. There doesn't seem to be any discussion about whether or not that should be an issue. So we come down to the five-foot rule. And essentially, we did look at a number of designs. I'm a professional in this community. I've been doing this for 35 years in this community. I find this site extraordinary and the challenges here. especially with the additional narrowness required by the homeowners association to be extraordinary. And I think our application and I think staff rightly finds that those circumstances have been met. It feels to me like in some ways, the county is being brought into the middle of a discussion about the CC&Rs, and I apologize. That doesn't seem appropriate in this venue. We understand that the CC&Rs apply to this project. We have every intention of complying with those. The CCRs make no mention of anything like a five-foot rule or finished floor elevations relative to natural grade. the CCRs make no mention of looming massing. Again, that's not our intent. Certainly, we'll be proposing designs in front of the DRC and the Homeowners Association, and they'll have every opportunity to give us their feedback and to make sure that we're within their restraints. Thank you.

Thank you, and I appreciate you making that comment about being dragged into a private dispute. And I guess the key takeaway is the point that you don't see this process to somehow circumventing the HOA's requirements. Very good. Staff, anything else we have to address on this matter?

Hearing Officer Hoppe, no. There are no other items on this matter.

Okay, so with that, I'm going to take this matter under advisement. Within 15 business days, I will make a recommended order in writing to the Planning Commission that will include my proposed findings of fact and conclusions of law. Thank you, everyone, for being here today. I understand. that property is a very intense thing and people feel very strongly about it. I do not want anyone to think that I don't take that seriously. So I do appreciate your time and your passion for being here today and for participating in this process. We are four minutes past five. Thank you very much for your patience.

And with that, Officer, a couple housekeeping items and then a clarification for the supplemental letter that was submitted for the first case, the Sarah West variants dated the 1st of September 2026. Is it okay if I identify that as Exhibit 1A?

Yes, let's do that.

And for the supplemental letter dated September 9, 2026 from the High Summit for this last case for the ghost variants, is it OK if I identify that as Exhibit 2A?

Yes, that is fine.

And one other just clarification statement I do want to make regarding the first case, Mr. Kurtz, who made a statement misinforming perhaps the public and yourself that Santa Fe County Building and Development Services and Code Enforcement uses drones to review property or inspect properties for violations. That in fact is not a fact. um this that certain case was brought to us by a third-party software that identifies um uncompl non-compliant short-term rentals um and so that's how that property was found in violation and we only use aerials flyovers from drones and aerials for reference we don't actually own or operate any aerials within our department or division thank you mr cisneros that's

understood thank you all right um that concludes all the business that we have on the agenda the next sustainable land development code hearing officer meeting will take place on october 8th 2026. so with that we are adjourned thank you everyone for your time get home safely