It is the burden of the applicant to prove that it:
- Will not, under the conditions imposed, be injurious to the adjacent property, the neighborhood or the community,
- Will not be significantly damaged by surrounding structures or activities.
The Comprehensive City Zoning Code defines VARIANCE as a “Variation from the strict, literal application of this article; however, the allowable use of premises may never be changed via a variance.”
It is the burden of the applicant to ensure that there is such evidence in the record. The city can approve a variance only if the evidence presented to the record shows that the following criteria are met:
(a) The property is exceptional:
- The parcel is exceptional as compared with other land in the vicinity subject to the same regulations by reason of the physical characteristics of the land, which physical characteristics existed at the time of the adoption of the regulation or were created by natural forces or by governmental action for which no compensation was paid.
- The parcel is exceptional as compared with other land in the vicinity subject to the same regulations by reason of the conditions or use of the parcel or other land in the vicinity which condition or use existed at the time of adoption of the regulations; or
- The parcel is irregular, unusually narrow or shallow in shape, and the conditions existed at the time of the adoption of the regulation or were created by natural forces or governmental action for which no compensation was paid; and
(b) As a result of the exceptional aspect of the property, the regulations produce unnecessary hardship; an unnecessary hardship is one that either:
- Creates an exceptional, substantial, and unjustified limitation of the property owner's reasonable use of his property; or
- Deprives the owner of a reasonable return on the property under any use permitted by its existing zone.
(c) A particular variance is appropriate to prevent the unnecessary hardship. The decision on whether to grant a particular variance depends upon a comparison of the special circumstances shown by the applicant (i.e., as per divisions (a) and (b) above) and the public interest. To be justified, a variance must permit only development which meets the following criteria:
- It differs from development which would be permitted under existing regular zoning regulations no more than is necessary to overcome the unnecessary hardship;
- The variance will not significantly interfere with the enjoyment of other land in the vicinity; and
- It is consistent with the spirit of this Zoning Code, substantial justice, and the general public interest.
(d) Financial gain or loss shall not be the sole determining factor in deciding a variance.
Voiding of Special Exceptions
(1) An approved special exception shall be void one year after the date approval vested if the rights and privileges granted thereby have not been utilized.
(2) An approved special exception shall be void if it is utilized in a way materially in violation of the terms of approval for a continuous period of one year or more. Such voidance is in addition to and not instead of other remedies available to the city at any time for violation of this Zoning Code.
(3) An approved conditional use shall be void if, after the use has begun, it ceases on the approved site for a continuous period of one year or more.
Responsibility of Property Owner
A person who acquires a property interest in a site which was previously granted a special exception has the responsibility to learn the terms of such approval. The existence of an activity or structure which is not in compliance with regular zoning provisions constitutes constructive notice that there may be a special exception, the terms of which must be met.
Expansion of a Nonconforming Use and/or Nonconforming Structure
It is the burden of the applicant to prove that:
- The expanded use will not significantly interfere with the enjoyment of other land in the vicinity;
- The expanded use will not be significantly damaged by surrounding structures or activities;
- The expanded use is consistent with the spirit of this Zoning Code, substantial justice and the general public interest;
- The owner will experience unnecessary hardship and in addition will be denied a continued reasonable use of the property if the expansion is not approved;
- The expansion does not exceed 25% of the floor or ground area in nonconforming uses on the site at the time it became nonconforming; and
- The owner covenants that the use of the entire premises will be ceased or made conforming at the time specified by this Zoning Code for termination of the original nonconforming use on the premises.
Board of Appeals
Appeal is to the Board of Appeals within 15 days of the decision. A filing fee of $105 shall accompany each appeal application, as well as a written explanation outlining the reason for appeal and a copy of the ZHE decision. Appeals are taken at 600 2nd St NW, Plaza Del Sol Building, Ground Level, Planning Application Counter located on the west side of the lobby. When an application is withdrawn, the fee shall not be refunded.
An appeal shall be heard by the Board of Appeals within 45 days of the appeal period and concluded within 75 days of the appeal period. The Planning Division shall give written notice of an appeal, together with a notice of the date, time and place of the hearing to the applicant, a representative of the opponents, if any are unknown, and the appellant.
Please note that pursuant to Section 220.127.116.11.(B). of the City of Albuquerque Comprehensive Zoning Code, you must demonstrate that you have legal standing to file an appeal as defined.
You will receive notice if any other person files an appeal. If there is no appeal, you can receive building permits any time after the appeal deadline quoted above, provided all conditions imposed at the time of approval have been met. However, the Zoning Hearing Examiner may allow issuance of building permits if the public hearing produces no objection of any kind to the approval of an application. To receive this approval, the applicant agrees in writing to return the building permit or occupation tax number.
Information Concerning Public Hearings Conducted Before the Zoning Hearing Examiner
- The applicant(s) has the burden of showing why a Special Exception to the Zoning Ordinance should be granted.
- The applicant(s) will be asked to offer testimony under oath.
- Any witness(es) who wishes to testify in support of an application will be given an opportunity to do so and that testimony will also be taken under oath.
- Any opponent(s) to the application will also be given an opportunity to testify and that testimony is also under oath.
- Finally, the applicant(s) will be given a brief opportunity to respond to the concerns raised by the opposition in the form of rebuttal.
- The Zoning Hearing Examiner will make a determination either on the day of the hearing or within fifteen (15) days of the closing of the public record.
- A representative of the Zoning Hearing Examiner's Office will do a site visitation prior to the public hearing.
- The site visitation will not be an opportunity for anyone to provide testimony. This is done solely so that the Zoning Hearing Examiner will have the benefit of photos and other information provided to him before making his determination.
- A decision of the Zoning Hearing Examiner must be appealed within the fifteen (15) days of the decision. Appeals are heard by the Board of Appeals (BOA).
- Interested person(s) who wish to receive a copy of the determination, but have not spoken at the hearing or presented materials to the file, must sign in on a roster which will be made available at the public hearing. An interested person(s) is one who has spoken at the hearing, signed in on a roster, and/or submitted a letter or materials for the file.
- The BOA has adopted a rule which requires that appeals of the Zoning Hearing Examiner's determinations will be heard based solely on the record that has been presented at the Zoning Hearing Examiner's level. Therefore, it is urgent that you present your entire position to the Zoning Hearing Examiner at the time of the public hearing.
- If there are any questions about these procedures prior to the hearing, please contact the ZHE office at 505-768-4503. The Zoning Hearing Examiner is prohibited from discussing the merits of any case with any party prior to the public hearing, or in its appellant stages.
- If there are any questions after the public hearing and the public record is closed, those questions may be raised with the ZHE staff at 505-768-4503.
- The ZHE Office hears special exceptions pertaining to a conditional use, variance or expansion of non-conforming uses. The criteria considered in approving these special exceptions is outlined in the Zoning Code, Section 18.104.22.168.(C). It is suggested that applicants familiarize themselves with this section of the Zoning Code prior to the hearing.
Questions regarding the Zoning Hearing Examiner should be directed to Vanessa F. King at 505-768-4503.