BEFORE THE LUHO APPEAL OF THE ZONING BOARD OF APPEALS DECISION Appeal Nos.: 18BOA-2007 & 18BOA-2008 (Project : 17-ZHE: & 80249)

Size: px

Start display at page:

Download "BEFORE THE LUHO APPEAL OF THE ZONING BOARD OF APPEALS DECISION Appeal Nos.: 18BOA-2007 & 18BOA-2008 (Project : 17-ZHE: & 80249)"

Jasmin Nelson
5 years ago
Views:

1 BEFORE THE LUHO APPEAL OF THE ZONING BOARD OF APPEALS DECISION Appeal Nos.: 18BOA-2007 & 18BOA-2008 (Project : 17-ZHE: & 80249) THANK YOU MR. CHAVEZ FOR THE OPPORTUNITY TO ADDRESS YOU. FIRST, THE TRANSCRIPT IS MISSING MOST OF OUR 15 MINUTE TESTIMONY BEFORE THE BOARD OF APPEALS. FOR PURPOSES OF YOUR REVIEW - IN TESTIFYING BEFORE THE BOA - WE OUR PRESENTATION DOCUMENT CLOSELY - WHICH ALSO INCLUDES OUR CHALLENGES TO THE ZHE'S FINDINGS. (Record Pg. 3A-8A) FOR US THE CRUX OF THESE APPEALS IS WHETHER OR NOT THE BOA MET THE STANDARDS FOR REVIEW ON APPEAL - WHETHER THE CONDITIONS SET FORTH IN THE ZONING CODE: : (C) (2) HAVE ALL BEEN MET. WE ALSO QUESTION THE STANDARD OF PROOF REQUIRED FOR GRANTING THESE VARIANCES - WHETHER THE APPLICANT HAS PROVEN BY SUBSTANTIAL EVIDENCE THAT HIS PROPERTY IS EXCEPTIONAL FROM ALL OTHERS AND; WHETHER AN ADMINISTRATIVE AGENCY HAS ACTED IN AN ARBITRARY AND CAPRICIOUS MANNER RESULTING IN AN ABUSE OF DISCRETION REQUIRING REVIEW OF THE WHOLE RECORD TO ASCERTAIN WHETHER THERE HAS BEEN UNREASONED ACTION WITHOUT PROPER CONSIDERATION OR DISREGARD OF THE FACTS AND CIRCUMSTANCES. WE UNDERSTAND THAT AN AGENCY'S DECISION WILL NOT BE DISTURBED UNLESS IT IS FOUND TO BE ARBITRARY OR CAPRICIOUS OR AN ABUSE OF DISCRETION, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR OTHERWISE NOT IN ACCORD WITH THE LAW AND; HOW THE PUBLIC INTEREST AND SUBSTANTIAL JUSTICE ARE DETERMINED. BASIS FOR APPEAL: THE ZONING BOARD OF APPEALS (BOA) IS THE APPELLATE COMMITTEE RESPONSIBLE FOR HEARING APPEALS OF ZONING HEARING EXAMINER DECISIONS ON SPECIAL EXCEPTIONS TO THE ZONING ORDINANCE. THE BOARD MAY ONLY CONSIDER EVIDENCE IN THE RECORD OF HEARING OF THE ZONING HEARING EXAMINER APPEAL. (B) APPLICATION. (4): "...APPELLANTS SHALL SPECIFICALLY CITE AND EXPLAIN ONE OR MORE ALLEGED ERRORS: (A) IN APPLYING ADOPTED CITY PLANS, POLICIES, AND ORDINANCES IN ARRIVING AT THE DECISION; (B) IN THE APPEALED ACTION OR DECISION, INCLUDING ITS STATED FACTS; (C) IN ACTING ARBITRARILY OR CAPRICIOUSLY OR MANIFESTLY ABUSIVE OF DISCRETION. 1. THE BOA FAILED TO EXAMINE THE WHOLE RECORD AND SIMPLY ACCEPTED THE ZHE s FINDINGS REGARDING APPLICABLE POLICIES AS FOLLOWS: 1

2 A. ZHE: THE SIGN PLAN HELPS ACHIEVE THE COORS CORRIDOR PLAN SIGNAGE POLICY 1 RATIONALE OF PROVIDING ADDED SAFETY AND LESS DISTRACTION AND CONFUSION FOR THE MOTORIST. " THE RECORD DOES NOT CONTAIN EVIDENCE THAT THE APPLICANT'S INTENTIONS REGARDING SIGNAGE (PRESUMABLY THE "SIGN PLAN") WOULD RESULT IN ADDED SAFETY AND LESS CONFUSION AND DISTRACTION FOR THE MOTORIST. THE RATIONALE OF CCP SIGNAGE POLICY 1 (CCP, P. 112) IS THAT ADDITIONAL SIGNAGE CONTROLS, MEANING THOSE IN THE CCP, WILL PROVIDE ADDED SAFETY AND LESS DISTRACTION FOR THE MOTORIST, AND IS BASED ON ADHEREING TO THE REGULATIONS RATHER THAN DEPARTING FROM THEM, THROUGH THE VARIANCE PROCESS. B. THE ZHE FINDINGS REFERS TO THE ALBUQUERQUE/BERNALILLO COUNTY COMPREHENSIVE PLAN POLICY 2.0 INTENTION THAT SIGNS SHALL BE DESIGNED FOR MINIMAL DISTRACTION [AND BE] NON-DISTRACTING TO MOTORISTS. BOA/ZHE ERROR: THERE IS NO POLICY 2.0 IN THE COMPREHENSIVE PLAN. 2. THE BOA FAILED TO APPLY THE STRICT LITERAL INTERPRETATION OF THE PROVISIONS IN THE ZONING ORDINANCE IN REVIEW OF THE ZHE'S DECISION. THE RECORD SHOWS THAT VICE-CHAIR WOLFLEY HAD TO REMIND COMMISSIONERS ROBERT RAYNER AND TIM WATERS AS TO THE VARIANCE TEST REQUIRED. COMMISSIONER WOLFLEY: (Record: P. 35) ["THERE ARE FOUR TESTS THAT A VARIANCE MUST MEET, AND I FEEL VERY CLEARLY THAT THE TEST RELATED TO SPECIAL SHAPE TOPOGRAPHY, SPECIAL CIRCUMSTANCES DOES NOT APPLY, AND DOESN'T USUALLY APPLY TO HOW SOMETHING IS PLATTED. AND I THINK THE FACT THAT IT'S PLATTED INTO 9 LOTS IS A SELF-IMPOSED CONDITION...WOULDN'T BE A GOOD BASIS FOR APPROVING A VARIANCE BECAUSE THAT'S ONE OF THE CRITERIA'S THAT THE CONDITION CANNOT BE SELF IMPOSED. FORTUNATELY OR NOT THERE ARE SECTOR DEVELOPMENT PLANS AND AREA PLANS LIKE THE COORS CORRIDOR PLAN THAT DO APPLY TO THIS PARCEL AND THAT WE HAVE TO ENTERTAIN IN REGARD TO THE VARIANCE, NOT JUST LOOKING AT WHAT'S ALONG THE CORRIDOR AND COMPARING IT. BUT THERE WERE CERTAIN REGULATIONS PUT IN PLACE IN THIS GEOGRAPHIC AREA THAT THE PROPERTY OWNERS ARE REQUIRED TO CONFORM WITH. THERE'S NOTHING IN OUR TEST THAT ASKS US TO LOOK AT SIGN CONSOLIDATION OR SAFETY. WHEN I TALK ABOUT PRECEDENT IT RELATES TO HOW THE BOARD APPLIES THE TEST FOR VARIANCE, AND I HAVEN'T HEARD FROM WHAT YOU SAID THAT YOU'RE FOLLOWING THE TEST." ] WSCONA CONCURS FULLY WITH VICE-CHAIR WOLFLEY'S POSITION. THE TWO OTHER BOARD MEMBERS DID NOT ADDRESS WHETHER ALL OF THE REQUIRED FOUR CONDITIONS FOR GRANTING A VARIANCE WERE MET. INSTEAD, COMMISSIONERS RAYNER AND WATERS ATTEMPTED TO MAKE THE ERRONEOUS CASE FOR EXCEPTIONALITY, SIGN CLUTTER, SAFETY AND SPECIAL CIRCUMSTANCE. 2

3 COMMISSIONER WATERS: (Record P. 34) [ "I THINK I SEE LOOKING AT THAT SITE PLAN I SEE THAT THE SITE IS UNIQUE I SEE THAT IT'S 21 ACRES. I'M NOT REAL FAMILIAR WITH THE WEST SIDE, BUT I CAN SEE THAT THERE'S FOUR SHOPPING CENTERS OR DEVELOPMENTS IN THAT AREA FROM MAYBE MONTANO ALL THE WAY TO THE FREEWAY THAT ARE THAT SIZE. AND I SEE, I DON'T KNOW WHAT THE SHOPPING CENTER IS AT THE FREEWAY AND COORS THERE WITH THE HOME DEPOT BUT I SEE BIG HUGE FLASHING SIGNS WHEN I DRIVE BY THERE. I THINK, SO I FEEL THE SITE IS UNIQUE. YOU NEED A PRESENCE, I THINK ELIMINATING THE SIGNS TO THREE SIGNS IN MY MIND I THINK THAT'S SAFER " ] WE DON'T ACCEPT THE COMMISSIONER'S LOGIC THAT A 21-ACRE LOT IS UNIQUE AND HOW THREE SIGNS ARE SAFER. ADDITIONALLY, THE SIGNS NEAR COORS AND I-40 DO NOT HAVE THE SAME SECTOR OR AREA PLAN RESTRICTIONS. ONE OF THE SIGNS HE REFERS TO IS ACTUALLY CONSTRUCTED AS A WALL SIGN AND NOT FREE-STANDING. COMMISSIONER RAYNER: (Record: P ) [ "I WANTED TO JUST HAVE A LITTLE BIT OF SAY THAT I WANTED TO THANK BOTH PARTIES FOR PROBABLY THE BEST PUT TOGETHER DOCUMENTS THAT WE'VE HAD IN A LONG TIME. THE SUMMARIES WERE VERY EASY TO GET, AND TO COMPARE THE DISCUSSIONS THAT YOU HAD. AND IT SORT OF CAME DOWN TO THE HARD FAST NUMBER, VERSUS SOMETHING MORE THAN KEEPING THE INTENT BUT I'M TRYING TO LOOK FOR (inaudible) AT SAFETY ON THE CORRIDOR. SO WHEN I WEIGHED THOSE TWO TOGETHER THAT'S WHY I FELT I COULD SECOND THE MOTION...I WOULD SAY THAT THIS SITE IS DIFFICULT OR DIFFERENT IN THAT IT IS A LARGE AND DEEP SITE" ] WSCONA DOESN'T ACCEPT THAT THE SITE IS EXCEPTIONAL SIMPLY BECAUSE IT IS "LARGE AND DEEP." : (C) (2): A VARIANCE APPLICATION SHALL BE APPROVED BY THE ZONING HEARING EXAMINER, IF AND ONLY IF, THE ZONING HEARING EXAMINER FINDS ALL OF THE FOLLOWING: CONDITION (A) THE APPLICATION IS NOT CONTRARY TO THE PUBLIC INTEREST OR INJURIOUS TO THE COMMUNITY. (Rec: Pg 5A Finding 3-6A-7A Finding 9,10,15,17,20,22) WE CHALLENGED FINDINGS RELATED TO CONDITION (A). (Record Pg. 3A-8A) IN FINDINGS 13 & 14 THE ZHE STIPULATES, "THE APPLICATION CAUSED SUBSTANTIAL OPPOSITION; THAT THE FOCUS OF THAT OPPOSITION IS ON A DESIRE TO PROTECT, AND HAVE APPLICANT COMPLY WITH, THE ZONING CODE, THE UNIVERSITY OF ALBUQUERQUE SECTOR DEVELOPMENT PLAN AND THE COORS CORRIDOR PLAN." YET THE ZHE IN FINDING # 15 IGNORED THE PUBLIC INTEREST AND SUBSTANTIAL JUSTICE OF THE APPELLANT COMMUNITY FINDING, "IN A CAREFUL REVIEW OF ALL MATERIALS SUBMITTED AND TESTIMONY 3

4 AT THE HEARING, THERE IS NO EVIDENCE THAT THE REQUESTED VARIANCE WOULD CAUSE ANY INJURY OR BE CONTRARY TO ANY PARTICULAR PUBLIC INTEREST, INDEPENDENT OF ITS NONCOMPLIANCE WITH THE CODE AND PLANS." OUR AIM IS TO DEFEND PLANS AND POLICIES INTENDED TO PROTECT COORS FROM BECOMING YET ANOTHER SIGNAGE CLUTTERED THOROUGHFARE. UNDERMINING APPLICABLE PLANS AND POLICIES - THAT IDENTIFY THE NEEDS, GOALS AND INTERESTS OF THE COMMUNITY IS INJURIOUS TO THE GREATER COMMUNITY - IN THIS CASE BY SIGNIFICANT EXCEEDENCES ABOVE EXISTING SIGNAGE RESTRICTIONS. CHANGING PROVISIONS OF SECTOR DEVELOPMENT AND AREA PLANS SHOULD REQUIRE ABSOLUTE CONFORMANCE WITH ALL FOUR CONDITIONS IN : (C) (2). A VARIANCE SHOULDN'T BE AVAILABLE MERELY FOR THE ASKING! FURTHER, THE SURROUNDING COMMUNITY ATTENDED 2 FACILITATED MEETINGS, 3 ZHE HEARINGS AND 1 BOA HEARING WHERE THE WEST SIDE COMMUNITY EXPRESSED SIGNIFICANT OPPOSITION TO THE VARIANCES. IT IS ARBITRARY, CAPRICIOUS AND A MANIFEST ABUSE OF DISCRETION TO DISMISS THIS AS "NOT BEING CONTRARY TO ANY PARTICULAR PUBLIC INTEREST." ZHE S FINDING THAT SIGNS FOR EACH LOT WOULD PRESENT A TRAFFIC HAZARD AS MOTORISTS BECOME DISTRACTED LOOKING FOR DISPERSED SIGNAGE, BASED ON THE APPLICANT S CLAIM THAT REDUCED SIGN CLUTTER WOULD BE SAFER FOR MOTORISTS THIS FINDING - BASED ONLY ON THE APPLICANT'S CLAIM - IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD - AND THEREFORE IS ARBITRARY. CONDITION (B): THERE ARE SPECIAL CIRCUMSTANCES APPLICABLE TO THE SUBJECT PROPERTY WHICH DO NOT APPLY GENERALLY TO OTHER PROPERTY IN THE SAME ZONE AND VICINITY SUCH AS SIZE, SHAPE, TOPOGRAPHY, LOCATION, SURROUNDINGS, OR PHYSICAL CHARACTERISTICS CREATED BY NATURAL FORCES OR GOVERNMENT ACTION FOR WHICH NO COMPENSATION WAS PAID; (Rec: Pg 6A Finding 6 - Pg 7A Finding 23,24). WSCONA ASSERTS THAT THE ZHE ERRED IN HIS DETERMINATION THAT SPECIAL CIRCUMSTANCES APPLY TO THE SUBJECT PROPERTY THAT DO NOT APPLY GENERALLY TO OTHER PROPERTY IN THE SAME ZONE AND VICINITY, AS REQUIRED BY (C)(2)(B). THE SUBJECT PROPERTY S LOCATION BETWEEN A CHURCH AND A SCHOOL IS A COMMON OCCURRENCE FOR PROPERTIES, COMMERCIALLY ZONED OR OTHERWISE, BECAUSE CHURCHES AND SCHOOLS ARE WIDELY-DISTRIBUTED LAND USES. THE VACANT PROPERTIES IN THE VICINITY, NORTH AND SOUTH OF THE SUBJECT PROPERTY, ARE ALSO NEAR A CHURCH AND SCHOOL. 4

5 WSCONA ALSO ASSERTS THAT THE SHAPE OF THE SUBJECT PROPERTY DOES NOT CONSTITUTE A SPECIAL CIRCUMSTANCE, AS REQUIRED BY (C)(2)(C). MANY COMMERCIALLY ZONED PROPERTIES DEVELOPED AS SHOPPING CENTERS ARE SUBDIVIDED TO BE EITHER SQUARE OR RECTANGULAR IN SHAPE; THE SUBJECT PROPERTY IS NO EXCEPTION TO THIS PRACTICE. WSCONA FURTHER ASSERTS THAT THE FLAT TOPOGRAPHY AND OTHER PHYSICAL CHARACTERISTICS OF THE SUBJECT PROPERTY ARE SIMILAR TO THOSE OF THE VACANT TRACT OF LAND ON THE SOUTHERN SIDE OF ST. JOSEPH S DR. NW (Record, p. 180). CONDITION (C) SUCH SPECIAL CIRCUMSTANCES WERE NOT SELF-IMPOSED AND CREATE AN UNNECESSARY HARDSHIP IN THE FORM OF A SUBSTANTIAL AND UNJUSTIFIED LIMITATION ON THE REASONABLE USE OR RETURN ON THE PROPERTY THAT NEED NOT BE ENDURED TO ACHIEVE THE INTENT AND PURPOSE OF THE ZONING CODE ( ) AND THE APPLICABLE ZONING DISTRICT; AS REQUIRED BY SECTION (C)(2)(C)." (Pg 7A-8A Finding 25,26,27,28,29,30,31) WSCONA: THE ALLEGED SPECIAL CIRCUMSTANCES REGARDING THE SHAPE OF THE PROPERTY, WHICH RESULTS IN NINE LOTS, WERE SELF-IMPOSED. THE APPLICANT DECIDED HOW TO SUBDIVIDE THE SUBJECT PROPERTY, INCLUDING LOT SIZES, LOT LOCATIONS, AND OVERALL CONFIGURATION (RECORD, P. 97). THIS WAS THE APPLICANT S CHOICE AND WAS NOT IMPOSED UPON HIM, CREATED BY NATURAL FORCES, OR GOVERNMENT ACTION FOR WHICH NO COMPENSATION WAS PAID. AS TO FINDING 26, "ANOTHER ASPECT OF THE LOCATION OF THE LOTS, THAT IS, THE RELATIONSHIP OF THE NINE LOTS AS THEY ARE LAID OUT, IS SUCH THAT NOT ALL STOREFRONTS IN THE SHOPPING PLAZA WILL BE VISIBLE TO MOTORISTS, WHETHER FROM COORS BLVD. OR ST. JOSEPHS DRIVE NW." WSCONA: THIS IS NOT A SPECIAL CIRCUMSTANCE IMPOSED BY ANYONE ELSE OTHER THAN THE APPLICANT. THIS FINDING DOES NOT PROVE EXCEPTIONALITY OR A SPECIAL CIRCUMSTANCE. THERE EXIST A NUMBER OF SHOPPING CENTERS ON COORS WITH BACK-SET BUILDINGS THAT DO NOT ENJOY UNLIMITED VISIBILITY. FOR EXAMPLE: WEST BLUFF, MONTANO, RIVERSIDE, ANDALUCIA AND OTHER SHOPPING CENTERS. THE ZHE ERRED AND THE BOA GAVE THE ZHE A PASS. ZHE: "IN ADDITION TO BEING SUBSTANTIALLY MORE VISUALLY INTRUSIVE, AND GIVING THE COMMUNITY NO GUARANTEE THAT THE SIGNS WILL BE ATTRACTIVELY DESIGNED, THIS WOULD CREATE A HARDSHIP FOR THE 5

6 INTERIOR LOT TENANTS WHOSE BUSINESSES COULD NOT BE EASILY SEEN FROM THE STREET...THE ALTERNATIVE WOULD ALSO PRESENT A TRAFFIC HAZARD AS MOTORISTS BECOME DISTRACTED LOOKING FOR DISPERSED SIGNAGE." REPEAT: THIS AGAIN IS NOT A SPECIAL CIRCUMSTANCE IMPOSED BY ANYONE ELSE OTHER THAN THE APPLICANT. THIS FINDING DOES NOT PROVE EXCEPTIONALITY OR A SPECIAL CIRCUMSTANCE. THERE EXIST A NUMBER OF SHOPPING CENTERS ON COORS WITH BACK-SET BUILDINGS THAT ENJOY UNLIMITED VISIBILITY. FOR EXAMPLE: WEST BLUFF, MONTANO, RIVERSIDE, ANDALUCIA AND OTHER SHOPPING CENTERS. THERE HAS BEEN NO SUBSTANTIAL EVIDENCE INTRODUCED INTO THE RECORD TO SUPPORT THIS FINDING OR THE ASSERTION OF PRESENTING A TRAFFIC HAZARD. THE ZHE AND THE BOA ERRED. CONDITION (D) SUBSTANTIAL JUSTICE IS DONE. (Pg 7A Finding 32) "THE ZHE FINDS THAT SUBSTANTIAL JUSTICE WILL BE DONE IF THIS APPLICATION IS APPROVED, AS REQUIRED PURSUANT TO SECTION (C)(2)(D)." SUBSTANTIAL JUSTICE WOULD GIVE THE APPLELLANT COMMUNITY EQUITABLE CONSIDERATION UNDER THE LAW AND IMPARTIAL APPLICATION OF PLANS AND POLICIES. SUBSTANTIAL JUSTICE ENSURES A FAIR TRIAL ON THE MERITS. HOWEVER. THE ZHE AWARDED A HIGH DEGREE OF DEFERENCE TO THE APPLICANT WHILE FAILING TO CONSIDER EQUAL JUSTICE FOR THE APPELLANTS: THE BOA FAILED TO ADDRESS THIS CONDITION - ONE OF FOUR CONDITIONS - REQUIRED FOR GRANTING A VARIANCE. (Rec: Pg 5A Bullet Point 6 - Pg 7A Finding 22 - Pg 8A Finding 32) THERE IS NO DEFINITION OF SUBSTANTIAL JUSTICE IN THE ZONING CODE AND SO WE TURN TO THE LEGAL DEFINITION: JUSTICE OF A SUFFICIENT DEGREE ESPECIALLY TO SATISFY A STANDARD OF FAIRNESS; SUBSTANTIAL JUSTICE MEANS JUSTICE ADMINISTERED ACCORDING TO RULES OF SUBSTANTIVE LAW IN A FAIR MANNER... 6

7 THE CONCEPT OF SUBSTANTIAL JUSTICE RAISES ISSUES OF FAIRNESS FOR NEIGHBORS AND THE COMMUNITY. THIS CONCEPT ECHOES THE REQUIREMENT THAT HARDSHIP MUST BE PECULIAR TO THE PROPERTY - NOT SHARED BY THE COMMUNITY. IF EVERYONE BEARS THIS HARDSHIP, THEN ONE 'LUCKY' APPLICANT SHOULD NOT BE RELIEVED THROUGH VARIANCE. THE HARDSHIP HAS TO BE MORE THAN INCONVENIENCE TO ONE. WE BELIEVE THE LAND USE HEARING OFFICER WILL FIND UPON THE WHOLE RECORD REVIEW THAT THE BOA AND THE ZHE TOOK UNREASONED ACTION WITHOUT CONSIDERATION, OR DISREGARD OF THE FACTS AND CIRCUMSTANCES. AND THAT THEY FAILED TO APPLY THE TEST FOR SUBSTANTIAL JUSTICE B. THE CITY OF ALBUQUERQUE ZONING CODE OF ORDINANCES SECTION (C)(1)(2) (SPECIAL EXCEPTIONS VARIANCE) (C) CRITERIA FOR DECISION: THE CITY SHALL APPROVE A SPECIAL EXCEPTION IF THE EVIDENCE PRESENTED TO THE RECORD SHOWS THAT THE FOLLOWING CRITERIA ARE MET. IT IS THE BURDEN OF THE APPLICANT TO ENSURE THERE IS SUCH EVIDENCE IN THE RECORD. THE ZHE/BOA FAILED TO PLACE THE REQUISITE BURDEN OF PROOF ON THE APPLICANT. THE RECORD WILL SHOW A GLARING LACK OF EVIDENCE TO SUPPORT THE ZHE'S DECISION AND, THE BOA FAILED TO EXAMINE THE EXTENT OF STATEMENTS MADE BY THE APPLICANT THAT WERE UNSUPORTED BY EVIDENCE. (Rec: Pg 6A Finding 12-7A Finding 21,) C. THE BOA/ZHE ERRED BY NOT APPLYING ADOPTED CITY PLANS, POLICIES, AND ORDINANCES IN ARRIVING AT ITS DECISION - AND THE BOA DID NOT EXAMINE IT. THE ZHE'S DECISION VIOLATES CLEAR RESTRICTIONS MANDATED BY THESE PLANS AND CONDITIONS. THE SITE IN QUESTION IS CONTROLLED BY THE COORS CORRIDOR PLAN, UNIVERSITY OF ALBUQUERQUE SECTOR DEVELOPMENT PLAN, THE DRB CONDITIONS OF FINAL APPROVAL, THE WEST SIDE STRATEGIC PLAN, AND ALBUQUERQUE-BERNALILLO COMPREHENSIVE PLAN. (Rec: Pg 5A Bullet Points Pg 6A Finding 13,14) THE ZHE STIPULATED TO THIS IN FINDING #S: 6 & 7: THE UNIVERSITY OF ALBUQUERQUE SECTOR DEVELOPMENT PLAN, HOWEVER, LIMITS SIZE TO 24 SQUARE FEET PER SIDE...THE COORS CORRIDOR PLAN LIMITS SIZE TO 75 SQUARE FEET (PG. 113). 7

8 IN FINDING 16, "APPLICANT ACKNOWLEDGES THAT THE PROPOSAL DOES NOT COMPLY WITH THE CODE OR PLANS. THAT NONCOMPLIANCE ITSELF IS THE VERY REASON FOR THE VARIANCE REQUESTS." THE ZHE DECISION IS ALSO CONTRARY TO THE DRB'S FINAL SIGHT PLAN FOR SUBDIVISION CONDITION OF APPROVAL REGARDING SIGNAGE RESTRICTIONS. "UPON FINAL APPROVAL [SITE PLAN FOR SUBDIVISION], THE DRB IN SEC. X: SIGNAGE THAT THE PAVILION CENTER (1) "SHALL CONFORM TO UNIVERSITY OF ALBUQUERQUE SIGNING AND GRAPHICS CRITERIA CONTAINED WITHIN THE DEVELOPMENT GUIDELINES;" (2) "ALL SIGNAGE SHALL CONFORM THE REQUIREMENTS OF THE DESIGN REGULATIONS OF THE COORS CORRIDOR PLAN;" (3) "ALL ON SITE SIGNAGE SHALL COMPLY WITH SECTION : GENERAL SIGN REGULATIONS OF THE CITY OF ALBUQUERQUE COMPREHENSIVE ZONING CODE..." THE TWO BOA MEMBERS VOTING TO DENY THE APPEAL(S) FAILED TO CONSIDER APPLICABLE PLANS-POLICIES- REGULATIONS GOVERNING THE SITE IN QUESTION. WE BELIEVE THE LAND USE HEARING OFFICER WILL FIND UPON THE WHOLE RECORD REVIEW THAT THE BOA AND THE ZHE TOOK UNREASONED ACTION WITHOUT CONSIDERATION, OR DISREGARD OF THE FACTS AND CIRCUMSTANCES. AND THAT THEY FAILED TO APPLY THE TEST FOR SUBSTANTIAL JUSTICE WSCONA CONCLUDES THAT THE TESTS FOUND IN ZONING CODE (C)(2)(b) AND (c) WERE NOT MET. PURSUANT TO ZONING CODE (C)(2), ALL TESTS (A,B, C AND D) MUST BE MET FOR A VARIANCE TO BE APPROVED. THEREFORE, THE VARIANCE CANNOT BE APPROVED. FOR THESE AND OTHER REASONS, THE WEEST SIDE COALITION OF NEIGHBORHOOD ASSOCIATIONS STRONGLY ENCOURAGES THE LAND USE HEARING OFFICER AND THE CITY COUNCIL TO UPHOLD WSCONA'S APPEAL. THANK YOU! Respectfully submitted, Dr. Joe L. Valles: Executive Committee Member WSCONA Jerry Worrall: President, WSCONA 8

* * * * * * * * * * * * * * * * FINDINGS OF FACT AND CONCLUSIONS OF LAW

* * * * * * * * * * * * * * * * FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RE: PETITION FOR VARIANCE * BEFORE THE SW side of Deereco Road at W side of Padonia Road intersection * DEPUTY ZONING 8 th Election District 3 rd Councilmanic District * COMMISSIONER (9615 Deereco Road)