9:28 please add after the name david put
down we're and on page 34 on line 16
before mexico please had the word new
that's it thank you can I have a motion
to accept the minutes give with those
Corrections madam chair I move we
approve minutes as amended is there a
second I'll second it
it's been moved and seconded that we
accept the minutes as amended all those
in favor please say aye
aye thank you
postponements we don't have any public
participation this is for anyone in the
audience who wants to speak about
something that is not on the agenda if
you're here for something that's on the
agenda we'd like you to wait until that
item comes up so is there anyone here
has something else they need to speak
about okay seeing none we'll move on to
the consent agenda
Medicare yes mr. Smith may I request we
remove case number one 9z o 0 5 0 0 1 4
7 from the consent adjust agenda for
discussion thank you we don't need a
second for that right we do need a
second is there a second I'll second
it's been moved in second that we
removed case number one 9z o 0 5 0 0 1 4
7 from the consent agenda everybody in
favor please say aye aye in my any
opposed
okay Commissioner Smith could you tell
us a little bit about the discussion
about this area that went on yesterday
at the City Council meeting
thank you madam chair the el paseo
blueprint is one which has come through
the years discussion plan a research a
formal effort to come to a sort of a
position point and those position points
but or come in play with these zoning
changes discussed in the in the case the
discussion about a transportation system
a an adjoining merchants and lifestyle
connection with it and the discussion on
how best use can come to play in helps a
land the university connection to
downtown was terrific it was a wonderful
discussion and deserves to have more
planning but to it that's what was
discussed about yesterday thank you so I
wanted to ask staff in the El Paseo
corridor Bookman it talks a lot about
mix juice and you know housing and
retail and office together in that area
is is that possible under the zoning
that they're asking for madam chair
commissioners based on the case that's
being presented before you tonight these
are properties that are trying to come
into compliance to either be redeveloped
or not so several of them have become
vacant buildings they used to be
restaurants or they used to be offices
and in order for them to redevelop this
will allow them to redevelop so this
will bring their property sizes which
most of them are over an acre in size
into a c3 zoning which will allow them
to redevelop in c3 you can propose
apartments or you can proposed office
and commercial uses so we would move
forward towards those mixed
okay so it would be possible to propose
both a mix of retail or business and
housing on some of these parcels of land
Madame sure that is correct because this
is also an area that's located within
the envelope Ozel z-- as part of our
infill development process thank you
is there anyone here who represents any
of these cases seeing none so we need a
motion and a second to approve I'll make
a motion I make a motion that we approve
case number 1/9 is e0 I'm sorry yeah Oh
rather zero five zero zero one four
seven I second that madam chair it's
been moved and seconded that we accept
this case and we've had a little bit of
discussion any more questions any more
questions or discussion okay Becky can
we have a vote board member Smith I say
yes it does fit the Comprehensive Plan
it does work well with anticipated ideas
coming forth with the el paseo blueprint
and follows staff recommendations board
members Muniz I vote yes
and I feel it will bring some good
changes for that area help it come alive
again what members Sanchez I vote yes
based on staff recommendation and it
works with the El Paseo corridor
community blueprint one member Guerrero
I say yes based on the staff
recommendations and just looking forward
to seeing that area used again
well member Gordon I would like to be
the first one to say that it comes into
compliance with elevate las cruces and
also with staff recommendation and I
vote yes chairperson Tomas I say yes
based on staff
Foundation site visit and the hope that
these properties will become the initial
properties that move us toward the El
Paseo plan okay the next item is oh I'm
sorry
old business we didn't have any old
business so we're moving to new business
I need a motion and a second to help of
case number one 9c s Oh five zero zero
one four six can't tell which arose in
which zeros madam chair I move we
approve case one 9c s zero five zero
zero one four six is there a second okay
it's been moved and seconded that we
approve this case any discussion or
questions well let's start with a recent
eight you have a presentation yes okay
we'll start with that madam chair staff
has a presentation than the applicants
representative will have a presentation
and then we can go to public comment as
far as this case so this case this
evening is an appeal for the decision
made by staff for an alternate summary
subdivision currently the property is
located at 510 and 550 South tell Shore
Boulevard it encompasses three point two
nine acres in size it is zoned c3 which
is commercial high intensity currently
it encompasses one lot which is labeled
as lot 1a from asea Valley Mall Reap lat
number four and then one tract that was
formerly owned by the New Mexico
Department of Transportation
right-of-way currently the property does
not have any access to Lomond Avenue or
to the NMD ot off-ramp in that location
and currently the access has been
privately or it has had access from a
private road known as Mesilla Valley
Mall ring row as part of the Mesilla
Valley Mall property here's an aerial
map of the sub
property essentially the line that is
located in the center of this property
was already vacated the maps have not
been updated per the county department
so as you can see this is currently one
lot which encompasses lot 1a and then
this is the future or the track that is
being designated as a land that was
purchased from an MDOT along here is
where you will see Ring Road which is a
private roadway that is owned by the
mall so through the process staff did do
a review of the alternate summary that
was being proposed the alternate summary
was going to adjust the existing lot
lines of lot 1a and then convert the
existing tracked into lot 3a and a
portion of a lot 1a so essentially
you're moving portions of lot 1
realigning and then creating an
additional lot known as 3/8 based on
staffs review per section 32-36
be to access to all commercial Lots must
be from an improved public right away or
from a 55 or 50 foot load permanent Road
easement or access during the review
staff identified through the resolutions
and the ordinances and which will go in
next to that this requirement was not
being met however the rest of the
standards per the zoning code
subdivision code and design standards
were being met so right now we're just
appealing the decision of whether access
is being provided to lot 3a here's the
proposed plat of the subject property
earlier in the map you could see that
these were the lines of the existing lot
right here that are dashed they are now
being moved over towards the west side
of the property and then you're getting
basically this new lot that's being
created of the additional tract the
applicant is proposing to create a
second access point to Ring Road that is
not currently existing now so if you
were to drive into the property this
used to be one of the old businesses
which was the Empire Buffet you and buy
pecan gorilla you had the one access
points into the property this would
generate a second access point in order
for redevelopment of the property
since Loehmann's access is controlled by
n MDOT they have already provided review
comments that an access easement or a
driveway would not be permitted off of
that access plane because they just
realigned Lohmann her resolution 79 335
there was an agreement between the city
and the mall the agreement conveyed land
from the city to the developer they
vacated portions of right away which
would include don rosa and foothills
they used to run through the property
those were vacated it created Mesilla
Valley Mall Ring Road which is the road
that basically runs around the entire
Mesilla Valley Mall property which was a
private road that would have open access
to the public at all times
and it also determined the
responsibility of construction and
maintenance for any of the various
improvements that would take place to
that road at the current time there are
no legal easements on file with the
county we went through our land
management department to see if anything
has been filed as separate documents or
as a platted document and there has been
none filed but there have been several
agreements that have been filed between
adjacent property owners one of those
agreements is an easement agreement
which allows lot 1a and Mesilla Valley
Mall subdivision replant number four
among other properties access to Ring
Road lot 3a and a portion of lot 1a are
remnants of n MDOT right away which were
not included in the agreement with the
mall and based on the city's position
since we do not own the Ring Road it is
owned by a separate private entity the
city cannot grant an easement off of
that property to gain access to someone
else's property because we do not own it
so we cannot go to someone's property
and say we have to grant access if
somebody doesn't own it so this would be
basically between the mall property and
the developer who is trying to create
the Noori plat to get access for the lot
in order to prove legal access to staff
in order to move the subdivision forward
either a new or amended agreement would
need to be placed with them all
establishment of an access easement from
ring
or any other legal remedies that would
deem necessary whether it be if a civil
suit is filed against property owners
and something has brought forth to staff
to actually clarify that easement has
been granted the notice was sent to all
the public departments as well as any
relevant agencies everybody agreed that
the development or the subdivision met
the requirements except for that there
was a lack of legal access being
provided for staff to approve we did
receive one phone call from an adjacent
property owner inquiring of the meeting
other than that staff did not receive
any additional phone calls the applicant
is here tonight to appeal the decision
based out the agreements and the
resolution on file do convey legal
access to the property and that the
existing and proposed access easements
between Lots in Mesilla Valley Mall reap
lat
four and five do extend legal access for
ring road so tonight I leave you with
your options to vote yes and support the
appeal or vote no and oppose
determination that would conclude my
presentation and we can go to the staff
to the applicants presentation thank you
thank you they might be good
good evening madam chair commissioners I
need to swell you swear you in do you
swear and affirm that the testimony
you're about to give is the truth and
nothing but the truth on a penalty of
law yes state your name any of you madam
chair commission my name is Paul Pompeo
I am the applicants representative for
civil engineering and surveying solder
Millard Associates 3500 sidonians
Parkway Las Cruces madam chair due to
the some legal issues that may be
discussed here at the conclusion of my
presentation the applicants legal
representative miss Katherine Mauro it
will also be given a short presentation
after I conclude mine basically madam
chair and Commission as the staff has
pointed out we are looking at the
property in this hatchet area here close
to the corner of tell shore and Lomond
and we're requesting alternative summary
plat approval to modify the common
boundary line between two parcels once
again creating a 2.05 and at one point
two for trade area tracts basically
shaded here between the two colors shows
the disposition of the two of the
property line between the two properties
as they exist now as staff pointed out
the dashed line in this location shows a
previous lot line that is has been
relocated by a previous replant the
drawing before you now indicates that
the new property line is created over to
the west side of the property it does
create a flag lot situation where the
lot does physically come out and touch
Ring Road and then a joint easement is
created giving access to the two parcels
the by this platen once again a copy of
the subdivision plat as submitted to
staff what's before you here madam chair
is this kind this shows you and
rendering of what the proposed uses are
of the property redevelopment of a
Bubba's restaurant in the air
here were approximate location where the
previous building sat and then some
additional commercial opportunities on
the western side of the of the part of
the lot that was obtained by in him from
an MDOT as stated council the City
Council resolution 79 335 vacated a
portion of Don groesser Drive that
existed through the Mesilla Valley Mall
property and created a common access
known as Mesilla Valley mall Ring Road I
think it's important to note if the
reading of that document on its face
there was a trade of public right-of-way
for the creation of the Ring Road
easement we do concur with staff that
there is no separate standing formal
document that creates that easement but
it was very clear in that resolution
what was being created who it was being
created for and it was open for use by
the public so at the very least there is
a prescriptive right for all users to
use that easement again the language of
the resolution was not restrictive as to
exactly what entities could use that
Road and it can only be construed and
was considered open access to the public
at all times based on the language is
construed that any property that
physically has access to the Mesilla
Valley Mall Ring Road can use it it is
our position that private agreements are
covenants between entities that may
limit the use of the Mesilla Valley Ring
Road does not create a basis by which
the city can deny or approve a
subdivision application so in conclusion
of my presentation madam chair the issue
of access off Mesilla Valley Ring Road
was settled in 1979 for all properties
dealing with and adjacent to the mall
that could have use of it that concludes
my presentation madam chair I would be
happy to answer any questions that the
Commission may have and then I would
like to turn the floor over to miss
Morrel for her comments thank you any
questions or comments yes I do
could you please go back to to two
screens that you presented to us the one
prior to this okay apparently you have
stated that there has now been an
easement created between the two Lots
that thou go to Ring Road
there is an easement that was coint
access agreement between the property
owners which is the same property for
disclosure that was created in this area
here okay but the portion that you're
showing on this diagram the eastern side
of the eat of there apparently looks
like there's two easements here one on
one on the west side one on the east
side and one on the west side that is
correct
okay the one on the west side now
extends down to Ring Road that was not
here before is that correct it was it
was previously created by the owner of
the property is there a legal document
to support them there is okay and and
the applicant is here are the I'm sorry
the owner is here if we want to discuss
that more fully but that was created
prior to the middle of this subdivision
plan and how why does that easement do
you know 27 feet okay well what's this
little portion of space that Ring Road
would probably cut down you see just
below that the red line down the ring
road is that all this a open space that
is here yes who does that belong to that
belongs to the Mesilla Valley Mall
properties are they willing to convey
that for the purpose of settling this
problem I believe there's been an
attempted communication between my
client and the mall but I think that
there was no resolution on that there
was no agreement on that uh-huh okay
then my next question is on this
particular one a lot to weigh is where
they can grill is correct that is
correct okay and the next lot is where
this new proposed restaurant is going to
go that is correct okay I think I see
that there they're grading land right
now there actually have started there
was some earth work on what is the
problem of dislike I remember when when
the Chinese buffet was there where this
new restaurant proposed is going to be
there was always access from there I
think it went actually into Peking Grill
for them to get out onto to Ring Road I
think or was there other access from the
lot that the new restaurant is going to
go on is that also was there also access
there at
time when the original kirino's I
believe is an Italian restaurant was
this prior to the Empire buffet like on
Mesilla Valley Mall replac number four
in this area here between the properties
and the pecan grill property there was a
common driveway easement that was
created by replant number four okay and
and that will now state that is that is
still in existence that what that is in
existence today and it will stay and
exist okay and and what is the problem
of just granting access from 3a into one
a as one a goes into two-way I believe
the issue just is the as a matter of
trap I'm gonna speak from an engineering
perspective just from an issue of
traffic flow this driveway here is close
to this slip ramp that's coming off of
Lomond and it would it would more than
double the traffic that's going in and
out of that that access point there we
believe from a traffic engineering
standpoint and safety that it's better
to have the access in this area here
plus it also creates in our opinion
illegal access because a lot 3a now
physically touches the Ring Road
alignment do you have to know do you
have to know how wide an access exit
Road has an entrance or exit road has to
be I believe in staffs previous slides
they say that every commercial property
has to be accessed off of 50-foot either
right away or a 50-foot public easement
so you would eat another 23 feet that is
correct
is there any problem of getting 23 feet
from lock 1a I believe the issues are
have to do with the number of parking
stalls that are allowed in just the site
design allows more for a driveway than a
50-foot easement okay so if this is if
this is denied then apparently let 3a is
going to stay vacant forever well we
need based on this development plan and
then I'll turn this speaker over to that
to staff this dashed line you hear that
I'm pointed out the cursor is those is
the current property line and so
therefore it does not afford the
opportunity for a large
tract the land based on the size of the
building and the parking space
requirement so that's why this line
needs to move over here so that all of
the parking associated with this new
restaurant is wholly contained on that
property so again my question is if
nothing is done here in this tonight lot
3a will stay vacant then if we cannot
gain this access because we have no
other access point we do not have it
from moment nor from the state right
away controlled ramp coming off the
interstate system if this was denied
based on that then that property would
remain vacant and then we would all get
to look at a vacant lot as we drive up
all right thank you madam chair and
Commissioner Gordon just to confirm they
would not have to make their new access
50 feet wide they just have to come off
of a 50 foot access Ring Road is already
50 feet so they can have their 27 foot
driveway
they don't have to create a new 50 foot
access right here this does not have to
be 50 feet you have to come off of a
designated 50 foot access so they would
meet the requirement of their driveway
they would not need additional space
okay then what is the problem of just
getting this 27 feet down to Ring Road
the concern has been is that Ring Road
is owned by the mall property the
previous agreement that has been filed
only gave a lot 1a and lot to a access
which came with legal descriptions when
you adjust legal descriptions you cannot
give yourself access to a property if
you do not own it so the mall would have
to do an amended agreement allowing
access to a lot 3a because now the
previous agreement that was filed in the
county states that they're only allowing
access for 1a and 2a 3a is not part of
that legal description so it has to
become a new agreement with the mall
essentially it's between the mall and
then the applicants tonight it's so what
is the purpose of this being before us
tonight
in a nutshell and not to be
argumentative but we disagree with
staffs position and that led to the
comment that led to the denial of the
application which is before why were
before you're here tonight we're
appealing that the reason for that
denial so we excuse me then so what
you're saying is that you feel you are
entitled to this 27-foot even easement
with acts with with access to wing Road
well to clarify the 27-foot being
created is by our own plat I believe the
issue it's before you tonight is that a
lot 3a does not have standing to have
access off a Ring Road and we believe
that it does because of the 79
resolution that created the Ring Road
and I don't want to get too far into the
to that issue because I'd like to have
miss Maurel come up and speak to the
legalities of that specification that's
fine with me I just want to make sure I
fully understand is because it's a very
important decision that's going to
affect what happens that piece of land
yes it is thank you very much and I
stand for any further questions or
responses and then I I'd like to turn
the floor over to as well thank you now
there any other questions or is it for
mr. Pompeo yes yeah quick question and I
realize it doesn't fully address the
issue that you have here but what is the
reason that you have not sought to just
amend the agreement so that you could
remedy this that way I'm aware that
there has been attempts at that but I'm
gonna let miss Morris speak to that
specific issue thank you madam chairman
if I may yes mr. Davis Larry Nicholas
Community Development to assist mr.
Gordon with his question on this drawing
that shows that there is an existing
access that has been granted and they're
showing a proposed access I would enable
them to have access to a lot 3a that is
one of the main main issues of the of
the appeal
can you hear me now you have to speak
directly into the microphone and I need
to swear you in
do you swear and affirm that the
testimony you are about to give is the
truth and nothing but the truth under
penalty of law good evening madam
chairwoman and councilmembers my name is
Katherine Brack morrow and it's my
pleasure to be here this evening to
represent PDG prestige Inc the owner and
applicants seeking approval of the
Mesilla Valley subdivision re plat
number five I'm gonna try not to cover
the same ground that mr. Pompeo already
covered this evening out of respect for
everyone's time but there are several
issues that should be considered by this
Commission prior to the decision on the
replac so first it's important to note
what's being requested in this reap lat
application and what currently exists on
this site so up on your screens right
now is the proposed property use and and
as you can see we are requesting to lots
to be formed out of this replac and that
is different than the what the staff
report references on page 1 and that the
request is to subdivide three existing
Lots into four new Lots that's a
misconception of what is being requested
here so there was some discussion and
I'm gonna try and go back a couple
slides so there was a discussion about
what the current characteristic of lot
1a is and whether it's one lot or two
lots and as you'll note in the packet
that was provided to you by staff and
and in their presentation this evening
both of the zoning map and the aerial
map
note that lot 1a is two Lots so it's
been referred to as lot 1a and 1b there
is some confusion as to whether or not a
vacation of that lot line ever actually
went through
it's currently I'll let you know being
taxed as two different Lots we get two
different but our my client gets two
different bills for these these two Lots
so which doesn't make a lot of
difference to the decision before you
this evening but essentially we believe
that this is more akin to a boundary
adjustment where you're essentially
taking two Lots that both have access to
ring road through a 2007 agreement in
addition to the creation of Ring Road
that mr. Pompeo discussed previously so
both of those Lots lot whether we want
to call it lot 1a or a lot 1a and 1b
both of those have historically had
access to Ring Road and so if you look
at this this is the existing property
layout and so then I'm gonna take you to
what the proposed lot layout is and
under this proposed property layout both
of the Lots currently have ax I mean so
both of them are using land that already
has access to Ring Road and so we are
not asking for the creation of multiple
additional Lots and essentially what we
think we're asking for is the creation
of two Lots out of two Lots there's no
question that we are adding some land to
one of those Lots from the NMD ot parcel
transfer but but we end up with two Lots
out of what we think are likely to Lots
already because we're dealing with a
replay of an existing subdivision that
does not increase the total number of
Lots the alternate summary process is
appropriate for this reap lat and the
purpose of the alternate summary process
is intended to streamline the processing
of small subdivisions by allowing them
to be approved administrative Lee
unfortunately this process has been
anything but streamlined instead this
process has taken over 18 months in
large part due to the very issue that
is before you today in the staff
recommendations namely staff has asked
you to deny approval of this replac due
to perceived lack of access to lot 3a as
my argument this evening will
demonstrate lot 3a currently has legal
access so if you'll look at page 2 of
the staff recommendations bottom
paragraph of the project description
staff has taken the position that
proposed lot 3a and a portion of the
reconfigured lot 1a are a remnant of the
NMD OT property and are not included
within the access agreement and this is
incorrect for the reason that I
mentioned just a moment ago lot 3a
contains a portion of the lot that was
already in the access agreement that
we'll be discussing and and lot 1a does
include a portion of the nm do t piece
but both of them contain property that
already had access to Ring Road so mr.
Pompeo discussed the history of this
area and how access has been treated for
lots touching Ring Road in the past I'm
not going to go through all of that
again but I want to reiterate that there
is an memorandum of understanding in
your packet from staff which provided
for the construction of the Mesilla
Valley Ring Road I'm just going to
recall a call that ring road for ease
during my presentation this evening so
that agreement includes that while the
road is a private one quote it shall
remain open to access by the public at
all times so as we have already
discussed the access that is required
for approval of a subdivision is access
to a 50-foot right-of-way the permitted
use of Ring Road for Lots 1a and 1b is
also clear from the declaration of
covenants conditions restrictions and
reciprocal easement agreement
which is also contained in your packet
on page three of the CC NRS in section
one see the owner here PDG because it
owns a lot a lot 1a and whether we want
to call that 1a and 1b or 1a and also
the nm nm do TPS
so here the owner quote shall have the
perpetual right to use ring-road in
common with others for pedestrian and
vehicular including emergency and public
safety vehicles access ingress and
egress to its parcel to and from Tel
Shore Boulevard so P D G as owner of
these Lots
has paid a monthly maintenance payment
to the developer the mall for
maintenance of Ring Road and is in full
compliance with this agreement therefore
pursuant to both the emember anthem of
understanding creating Ring Road as well
as the CC NRS which provide an easement
across Ring Road two PDG PDG has access
for both of the Lots which it is seeking
to modify with this replant the CC NRS
are not a document that has been
approved by the City Council or any
other governing body for the city of Las
Cruces and therefore it's our position
that the compliance with those CC and
ours is a private issue between two
adjoining landowners so to the extent
that there is any dispute between the
two adjoining landowners that is a
private dispute that would need to be
addressed by those two adjoining
landowners and it's our position that
the city would not have standing to
enforce those CC and ours in court so
the planning staff has taken the
position that PDG had to obtain
permission from the mall pursuant to the
CC NRS for access to these Lots the same
number of lots that they actually
already have access to even though this
position we believe is contrary to the
CC and ours which explicit
we provide on page nine and you can look
in reference at section 7 a those CC NRS
explicitly provide that the parcel which
is lot 1a or 1a or 1b
the parcel may be improved used operated
leased sold conveyed transferred
importantly subdivided replanted or
mortgaged and improvements thereon
constructed erected altered expanded you
get my point at any time and so it is
important that even these CC NRS include
language which which permits this parcel
to be replanted and subdivided also
importantly the CC NRS do not require a
contain a requirement for the owner of a
parcel here PDG to submit any
subdivision or replac plans to the
developer for approval
instead the owner is required to submit
preliminary designs for building plans
or modification of structures to the
developer for approval but it does not
contain any requirement for submission
of subdivision or replac plans to the
developer nonetheless in an effort to
work with the city staff and in hopes of
moving this project along PDG did
contact the owner of Mesilla Valley Mall
on multiple occasions to let them know
of the plans to replant this area these
contacts go back to September of 2018
PDG has never heard back from them all
either for or against this replant this
hearing process should serve as the last
and final public notification to them
all of this proposed replac importantly
and as I mentioned a moment ago the CC
NRS are an agreement between private
parties to which the city has no stake
the city would not have standing to
enforce these CC NRS and should not be
permitted to take a position here which
would essentially choose one private
landowners positions or
interests over another's any disputes
between the property owners regarding an
alleged violation of the CC NRS which we
have not had any notification of an
alleged violation of the CC NRS is a
private dispute to which the city would
not be and should not be a party the
development of these properties is in
everyone's interests PD G's the mall as
they're trying to sell the mall
currently they just put it on the market
the other day and the city's the
development of these properties would
provide commercialization to distressed
and underutilized properties which are
currently an eyesore on one of the
busiest intersections in the city
development of these properties would
also provide an increase in tax base for
the city and potential employment and
new jobs PDG has several million dollars
invested in this property dollars which
were not invested without due diligence
on the very issues which are in front of
the Commission tonight the position that
the city has taken in the staff report
would would deprive PDG of any
economically viable use of this property
unless as the staff report notes PDG can
convince them all to respond and provide
an additional access agreement PD G's
ability to use its property should not
be contingent upon the mall when it
already has access to these properties
such cooperation by the mall is not
necessary because legal access to these
parcels already exists denial of this
reap lot would be contrary to law and is
not supported by substantial evidence
rather it's based on an erroneous
understanding of the lots to be created
and upon an inaccurate interpretation of
private agreements to which the city is
not a party I'm happy to answer any
questions that you may have this evening
I'm sure
yes sorry yes go ahead
I have several questions trying to put
things in proper water no nothing I'm
not gonna I'm still looking at the
diagram here with the pink in different
colors that that 27 foot easement is
property that has been borrowed from lot
1 a correct yes sir
okay I'm not an attorney but I think I
do understand that anyone has a right to
grant anyone else an easement is that
correct yes I'm sure there are a few
restrictions to that rule but yes okay
as long as you had access to the
property and ownership of the property
you were granting so when I'm again I'm
like I guess before if this if this 27
foot easement is given this does give a
way out from lot 3:8 yes and that was
specifically created for that reason we
we specifically wanted to include area
within lot 3a that was already subject
to the Ring Road agreement okay it is it
proper at this time is City position
from our attorney madam chair yes go
ahead I'd like to answer my question
first about whether when one party has a
right to give another party an easement
if it's from their party to their from
their property to another person's
joining property as long as don't
violate any kind of prohibitions against
maybe crossing a road or something I
don't know okay so sorry Robert Kibeho
with the City Attorney's Office so I
understand your question here a so do I
need to swear you in are you okay
go ahead for me partners but I'm sure
please for me do you swear and affirm
that the testimony you're about to give
is the truth that nothing but the truth
under penalty of law I do thank you
madam chair Commissioner Gordon uh can
understand your question you're asking
can two parties make agree to the
obviously two parties can make an
agreement for an easement
well pending some restriction about you
know other easements or other things
like that however if you're asking could
you get just a little closer to the
microphone if you're asking could two
parties make an agreement to go into
third persons park property an easement
that's not the case I'm not talking
about that these are adjoining
properties okay two adjoining properties
can't make an agreement but you cannot
make two parties cannot make an
agreement for an easement to go into a
third parties prop but this piece of but
this is this easement here as I see it
is really part of lot 1a it's not
touching the property it's where it's
not going down to Ring Road that bottom
portion that's open here that's not
colored in pink this easement is taken
from property that is from lot 1a no
chair Thomas Commissioner Gordon I
understand that but it is the position
of the city attorney's office that you
cannot just change the legal description
of properties create a lot and then give
an easement to a third parties property
by the these men through two adjoining
properties if I may respond I think that
you raise a great point here in that PDG
owns both of these properties it is able
to provide an easement at some point or
another whether it's now or whether it
sells one of the Lots in the future it
is able to provide that easement and
because that access already exists where
that easement is proposed to be located
that access is already existing to Ring
Road nobody has ever disputed that Lots
1a and 1b in whatever iteration that
they
had over the years have always had
access to Ring Road and so I think that
your your point is well-taken in that
regardless of whether PDG owns both of
them right now and then sells one of
them later it is able to grant an access
easement right there between those two
property lines okay thank you can I
check on you yeah I just a just a quick
question first of all thank you so much
for going over all this I'm not a lawyer
either so appreciate you explaining all
of this to us um so my question is
regarding them all I mean the mall is
not responding you mentioned that this
is basically their final notice what
happens if let's say this gets approve
moves on and then the mall comes back
and is like hey we never gave you guys
permission for this like I'm just
curious what happens at that point so I
mean I think that that is an issue
between them all and PDG pursuant to the
agreement between those two private
parties and and that is an issue that
you know they can approach however they
want to and we can approach that as
private parties moving forward and you
know but but I think that the issue is
is that number one we've tried to
approach them for a year and a half
regarding this issue and and during that
year and a half we've been kind of
stalled in terms of being able to
develop these properties at considerable
cost to my client and that is an issue
that you know certainly we would deal
with the mall on but that the city would
not have to be a party to I'm sorry just
a fencing on just what you just said to
make sure in this case silence is not
consent well so what's interesting in
this circumstance is that we believe
that under the sea' CNRS if we were
proposing we had to submit a building
proposal for example to the mall
have 15 days in which to respond to that
building proposal so what's interesting
under this current circumstance is that
we were not required to ask them or to
propose this subdivision or Reap lat to
them all so there's not a prescribed
time period for them to respond but if
you were to apply the same time period
that they have in order to respond to a
building plans which is 15 days that has
certainly long past all right I'm sorry
to interrupt and then my other question
just that I just wanted to clarify so at
first you had mentioned that so what we
have here the staff report is actually
different than what you guys are
proposing so can you go into a little
more detail about that so I think that
maybe you're referencing the three Lots
into four Lots issue that I raised at
the beginning and so I want I'm going to
go so this actually this screen is the
proposed re-plot that we submitted and
as you can see on the right side of your
screen that's the lot where pecan Grill
currently is and so then we have two
Lots that we are proposing to create
with this reap lat
one is lot 1a which is currently it was
where the Empire buffet was it's been
taken down Johnny Carino's was there and
basically what we're wanting to do is
put another restaurant site there and
we're making that lot as mr. Pompeo
mentioned a little bit bigger because of
the increased parking requirements that
the proposed restaurant wants to have on
that property and so then we would also
have lot 3a
under which there would be additional
commercial development so that's that's
kind of what the proposal is we're
essentially wanting to create two Lots
out of what we already believe is two
Lots perfect thank you so much thank you
Sarah did you want to say something
and I do madam chair I would like to
clarify the representative is correct in
the fact that the request is showing
that is from 4:00 to or from three to
four Lots that is a misinterpretation of
it however in the summary of the request
her replac number four lot 1a became one
lot so in the request when the applicant
submitted if this was going to be two
lots to two Lots then that would be a
replay which is a lot line adjustment in
this case we are taking lot 1a which is
one lot and attractive land and making
two Lots is what we're creating by this
subdivision that's why it's considered
an alternate summary subdivision so
number four for Mesilla Valley Maori
platon number four eliminated the lot
line that runs parallel through this
property as part of the aerial map so
that is confirmed as part of the
applicants subdivision proposal
otherwise the lot line would be showing
through the middle of lot 1a and being
adjusted over so we are going from
basically one lot and one tract to two
Lots that's why we're having to go
through the alternate summary
subdivision and I think should clarify
is the reason staff standpoint is saying
that we're changing the legal
description that was filed saying lot 1a
had a legal description when you adjust
lot when a and separate that by creating
lot 3a and giving them access from a
portion of what was existing off of
ring-road
that description has now changed from
that replant therefore that would need
to be amended thank you
say that last part again it would
therefore be that lessens the agreement
the agreement listed lot 1a and 2a of
Mesilla Valley Mall replac number four
based on that agreement when you create
number five you have now adjusted what
was existing for a lot 1a that's where a
staff standpoint is we've adjusted that
legal description to reflect something
different and so the agreement would now
need to be amended to show those changes
Thank You Commissioner Smith thank you
madam chair
we've heard in discussion the ideas of
two lots becoming three three lots
becoming four and a welcome more
discussion on your part legal and City
legal on your position versus the city
position it seems like there's still a
gap between the two positions and I'd
like to hear it one more time
sure and madam chairwoman Commissioner
Smith I think that there is some
clarification that needs to be had on on
that issue however I don't think that we
have two different ideas of what the
outcome would be with this Reap lat
so as I mentioned a moment ago and I
think that you can look at the aerial
map that was provided to you with the
staff report as well as the zoning map
which shows two separate Lots and like I
said my client has been paying taxes on
two separate Lots so I think that there
is some question as to whether that
vacation of that lot ever actually went
through and I don't know I don't think
that it actually makes a difference in
the outcome of this circumstance whether
we start out with two Lots and
attractive land or one lot an attractive
land what we all agree on I think is
that what we are proposing is that we
end up with two lots
within the subdivision and so at various
points there have been two Lots whether
there are right now or whether that
happened whether that line was vacated
in 2004 or whenever it was at various
points there have been two Lots right
there in the subdivision so we're not
creating anything that is historically
different
what this subdivision has been what we
are doing is adding a bit of land to one
of those Lots and if you look on the
zoning map and the aerial map that
actually makes a lot of sense too
because that one lot is very small you
might be able to tell and so basically
what we're doing is we're restructuring
it so that the Lots are a little bit
more evenly distributed in terms of
acreage and usability and suitability
for the site manager I'd ask for a
compared discussion from mark madam
chair Commissioner Smith it's the city's
position is it really not been able to
give a full description or to the City
Attorney's Office the city cannot nor
can any of its administrative
subdivisions or other administrative
groups nor this commission have
authority to grant an easement to
another person's property in this clue
we're basically saying we keep we cannot
permit this we cannot allow because we
don't have that authority going starting
with the basics with resolution 79 335
there's been some discussion about what
this resolution can somehow was able to
create an easement prescriptively and no
easement can be created through
resolution these men is created through
a proper recording an agreement of a
proper recording of a documentation
that's not a occurred in this case again
we do not believe you can granted
easement and I've said this before and I
think Sarah Casals really perfectly
described you cannot just change the
legal description of properties to
create this 3a and then grant through it
a you know a budding property an
easement to that and then create this
other easement to a third property
that's not owned by the city as far as
another thing if there is an action
between by the mall we this is granted
and though there's
action I don't know if it will be
involved with city or not because
ownership of property obviously you know
part of our mission property is being
able to decide what you want to do with
your property but also it's the ability
to exclude and the city could be named
through an injunction or not I don't
know what the legal strategy would be I
don't obviously represent the mall or
any of those interests so that is
something as far as again it's simply
put the city feed on grant a third party
access to something it does not own
thank you so thanks sorry madam chair
Commissioner Smith if I might have an
opportunity to respond and so we've
spent some time talking about these CC
and ours that we believe do provide
access and and that's what staff is
relying on in terms of we would need to
amend the CC NRS that's not our only
position on access we also believe that
we have access by virtue of ring-road
having a basically public access that is
permitted to the public at all times and
so these properties have historically
had access to Ring Road whether we are
adding a little bit of lint to one of
those Lots I think does not materially
change the use of that easement and it's
a it's an easement that is for basically
provided to the public at all times
so I don't think that we need to solely
rely on the CC NRS and in fact I think
that that is simply a way of of
explaining what our position is as to
how that has been treated historically
and that we have provided you know
payments for maintenance on Ring Road
but I think that the access was granted
by virtue of that being a public
easement
you think that you have a prescriptive
use of those properties access to Ring
Road as your properties have been used
historically as they've been applied and
complied with through the CCS you know
Cece and ours am i hearing you describe
that you're maybe feeling you're losing
privilege losing rights by virtue of the
replant I mean to a certain extent yes
so we my client owns the the piece of
property that he acquired from an MDOT
that is not currently subject to the CC
and ours and by virtue of this reap lat
what we're essentially doing is is
making that subject to those same
covenants and restrictions because even
even if only the the legal description
is applicable to the CC and ours that
now encompasses a portion of lot 3a
and so essentially lot 3a would be I
think by all practical purposes subject
to the CC NRS and that's that's
something that my client has done
voluntarily that is would be basically
providing for consistent use between lot
3a and on the other lots that are
surrounding the mall property and Ring
Road and and essentially that lot would
be subject to the same terms and
conditions that all of the other lots
that are subject to those CC and ours
would be follow-up question to you or
perhaps to mr. Pompeo where you have
tried to improve your position for using
this land where you have a plan and have
invested in an idea there that develops
the area improves the area
are you feeling that staff has come to
enjoy that discussion of improvements
aside from this platy does Sarah like
their plan does it improve the use of
the area have you had anything that says
it's worth in your planning madam
chairwoman and Commissioner Smith
respectfully I don't believe that I or
my client has taken a position as to
whether staff has enjoyed this or not or
or whether staff has a particular
feeling one way or the other about
whether this proposed development
improves the site or not I can defer to
mr. Pompeo for his conversations with
staff but I I don't believe that I would
characterize that one way or the other
frankly mr. Pompeo thank you madam chair
Commission my conversations with staff
have been the staff has a position that
the you know the development planners
property its uses the commercial
buildings restaurant parking lot etc I
believe staff is in concurrence with the
use of that I think that they've never
said that they weren't I think the issue
before us is whether or not lot 3a can
have access to Ring Road it's our
position that by virtue of the 79 335
resolution remembering there was a trade
of public property public right away for
a private easement best summarize it by
saying let's say that we took lot 1a and
made it into five Lots rather than one
lot I believe that staff and the
applicant would have a varying opinion
as to whether
five lots had legal access for its
development for commercial property I
submit to you it doesn't matter how many
Lots we create whether it's one or ten
or five all of the Lots or the one lot
would have access to Ring Road by the
simple virtue of the 79 resolution in my
opinion that's where the analysis and
I'm not an attorney I'm a civil engineer
that's where the analysis of legal
access stops because the city does not
have any position when it comes to
private and CC and ours it would be as
if you did a slight adjustment and the
lot changed from what one ate a lot one
A one and then we would say well you
don't have access because lot one a one
is not defined in any CC and ours once
again I think we have to go back to 1979
we need to look at the creation of Ring
Road we need to look at the intent of
the creation of Ring Road and see that
our property is being developed in a
commercial matter a manner that is
consistent with all the other commercial
areas around it so I believe once again
to go back to the beginning just to
reiterate my position I believe the
staff has no issues whatsoever with the
commercial development of this property
or with the schematic plan that was
presented in my presentation we're just
simply talking about that axis issue
thank you madam chair thank you mr.
Nichols
yes very Niklas Community Development
most of the discussion that has been
brought forward this evening had to do
and to answer your question commissioner
Smith we few properties that are
submitted to us are proposals that are
submitted to us to see if they comply
with the zoning regulations and their
development regulations and then after
that we get into the building
regulations and permitting by the way
the client has found that he needs to
develop this property in a certain
fashion and that included a larger lot
for the proposed development of the
eatery or the restaurant
I think a lot behind that to do with
that was he needed to have a certain
number of parking spaces for the size of
the structure and so those lot lines had
to be adjusted and that would have also
created a need I believe for a second
access it's true what the attorney and
his attorney has presented that those
lines have had access for a long time
had an access not necessarily multiple
accesses and I think that's one of the
reasons that the staff has taken the
position that they have that in order to
substantiate and support this
development those accesses needed to be
provided you've presented testimony
tonight they're saying it's not a matter
of the city to be involved with this at
all but I would submit to you it is and
I guess one last comment I would make is
I think there has been activity on that
site I think there's been some clearing
and grubbing I know there's been some
curb cuts made and all of those
activities should have have a permit
before the activity began and I would
ask the client did you achieve did you
acquire a permit for that woman and mr.
Nichols thank you and respectfully we
had a meeting which you were which you
were present and I was present and my
client was present several staff members
were present in the middle of December
and that very issue was discussed the
only curb that hope that has occurred is
on my clients property and it's my
understanding and I can refer to my
client and check with him on this at
that very meeting we all it was our
understanding that the issues with lot
1a
were I mean lot 1a is one is lot 1a and
in hand or 1b
but but that existing lot was per
permitted and plaited and all you know
already within the subdivision that is
existing it did not need to be a part of
the reap lat
and that whole mint permits could be
pulled for that lot it's my
understanding that they were so my
client is telling me that there was a
demolition permit that was pulled
shortly after the meeting that that we
had in December so I need to square you
in yes ma'am
do you swear and affirm that the
testimony you are about to give is the
truth and nothing but the truth under
penalty of law yes ma'am I do go ahead
state your names my name is Michael
Dixon I'm the president of prestige
Development Group EDG prestige Inc also
the owner and the applicant on in this
scenario I thank you for your time today
I'd like to address a few things we'll
have a moment to discuss this and talk
with you all as far as the demo as far
as not having a permit for improvements
that that is not true we do have a
permit a demolition permit which allows
us to do the work we're doing on the
site mr. sand of all who's also present
this evening in the in this chamber was
the gentleman who I've hired to pull the
permit and I paid him to do so we have a
contract it's binding between the
parties and a permit on record along
with insurance it was notified with this
city with a notice to proceed along with
the Swit permit that we've also been
delivered by by the city as well for a
masquerading operation for the MDOT
tract additionally as part of our
construction operations when we started
this off there's an email between myself
or there's an email between one of my
staff members and mr. Dolan who's
president ton as well from the mall and
their request was to install a secondary
access to help alleviate the traffic
that would be a concern of trucks coming
in and out of the first existing access
between the pecan
Grill and are tracked but along with
that email there was also concern about
road being damage being done to Ring
Road and that they didn't want they
wanted us to make sure that we took care
of that would be responsible for any and
all repairs that went along with that
accordingly we also got a drone video we
flew the meaning of the Ring wall Ring
Road around the mall to make sure we
could survey the damage in the current
status of the road before we started we
have that video as well if it needs to
be submitted to you guys for approval so
we have done everything we've been asked
to we've gone through all the due
diligence we haven't just done this as a
fly-by-night operation we've we've
checked the boxes we've gone above and
beyond trying to get this probe with
this project approved a couple of things
have been asked I'd like to go ahead and
address those who I have the moment to
speak it was asked by a mr. Gordon
Commissioner Gordon what will happen in
this property if this doesn't get
approved this property will remain
vacant just like the Mesilla Valley Mall
is it won't be redeveloped we won't do
anything with it it will sit here for
eternity I believe we have the rights
for this access for this easement that
is created between a property that I own
both properties I'm not encumbering a
third parties property I simply put in a
curb cut there was for construction
activities which is now will be
converted into a permanent access we're
not encumbering the mall's property I
haven't created a third an easement of
third parties property I've created an
easement between two tracts of land that
I illegally owned I also have recorded
an easement between the two tracks with
the county it's a legal document
recorded with the county the the city
staff has failed to recognize that as a
legally binding agreement so what
perplexes me in this whole situation is
that they have the right to to make a
decision on what they will or will not
recognize as binding a document whether
it's a reap lat number four of a lot or
whether it's this agreement I've taken
the steps that check the boxes this is
something that I've done several times
within the city and within this
community and throughout all communities
thank you very much
I'm sure my famiiy yes mr. nickles
we normally the community development
apartment zoning and permitting don't
normally issue permits on parcels of
land that have not had decisions
approved and such as this one I would
like and we would issue that permit to a
licensed contractor I'd like to ask mr.
Santa Paul if he would come to the
podium and verify that he had pulled a
permit for the work that has been done
on the site
it was just warning do you swear and
affirm that the testimony you're about
to give is the truth that nothing but
the truth under penalty of law I do
thank you hello my for the record you
might want to raise the poem a little
bit so you can get closer to the
microphone
my name is Gabriel San of all I'm the
owner of G sound of all construction and
we were contracted with prestigious
development to do the demolition on the
existing building which was at one time
to Empire Empire buffet so yes we did
pull a permit for a demolition and that
is all the work that has been completed
on site so my son of all your your
stating that you well yes the demolition
that took place about two years ago oh
no your everything mother like completed
within months more than months and
you've done no demolition of the curb on
the Ring Road or you've done no permit
for a curb cut or anything of that
nature or is there any site work like
Phil or any of that work being performed
on the remainder of the land right now
it's just really just keeping and
keeping the the dirt watered down and
everything was which was on that one
particular lot that's correct okay thank
you very much
I just finished a garden I just have a
question for counsel this is a suppose
suppose you had been successful in your
contact with Maceo valley wall with the
owners I guess the only result of that
of that if you had come to an agreement
to give them some keep your client
access it would have either been through
this proposed easement right or perhaps
some easement across that piece of
property that is below that curved line
that goes vacant down to a ring road is
that correct that would be the only two
other two ways out of there right I mean
so it's it's our position that we didn't
have to get an agreement I didn't mean I
mean however if we were to get an
agreement with them all it would be for
the use of Ring Road and and basically
the addition of this land to the CCN
ours like I said before I think that we
by all practical means had this land to
the CC and ours because a portion of
this land is included within the legal
description that is subject to the CC
NRS so I think by all practical means
that that would be subject to those
already I'm going to defer to the city
staff for one moment
yes Sarah you wanted to say something a
madam chair I'm the representative for
the mall is actually here so I think we
would like to hear at least what the
mall has to say in response to the
applicants proposal before we keep going
forward with the decision and then just
as a reminder we are here just primarily
for the access point to be granted
between basically the developer and then
the applicant who is requesting that
portion since the city does not own it
thank you yes that was my next question
is there someone here from Mesilla
Valley Mall yes would you come forward
please
oh my need to swear you in do you swear
and affirm the testimony you're about to
give is the truth and nothing but the
truth under penalty of law I do thank
you sweetie please state your name first
off thank you for allowing me to address
you I appreciate that
there's a couple of points I want to
make I did not find out can you state
your name please oh I'm sorry
James Dolan I'm the general manager at
Mesilla Valley Mall and just just a
couple things I did speak with mr. Dixon
back I want to say it was 2018 he we had
had a conference call with my then
supervisor Kelly had our construction vp
myself and several of mr. Dixon's
employees at that time we listened to
what they had to say and he was right
they talked about doing the drone over
the Ring Road and checking the condition
things like that
now I summarized all this information
and I sent it to my corporate office in
Syracuse New York they reviewed the
information and they said that they were
not interested in doing anything at that
time and I think I believe I conveyed
that information to mr. Dixon back in
I'd like to spoke with him on the phone
and I said that you know corporate told
me no and there was nothing I could do
about it and I gave him the phone number
to our corporate office so and I believe
he called up there are several times and
they may not have answered the phone I
don't know but as far as the easement
goes they did go ahead and cut our curb
and I don't believe that that was
covered by the demolition perp permit
that they received if they did receive
one because that that curb was our
property
they already did cut it in and removed
it so I did get a bid on replacing it
but you know pending the decision here
we'll see what happens
also I have a copy of the agreement that
was a the Covenant that talks about the
sex the parcel 1a and there is an
easement agreement on that and
the intent at that time it was a smaller
parcel they they weren't combined that
time I'm not sure I can only go on what
I've read but there is a section that
says that I think it only allows an
8,000 square foot building one building
of 8,000 square feet maximum so that's
designated in here this it also talks
about the $125 a month Ring Road but
that's just for that one parcel it
doesn't cover the other parcels that are
involved and I think that the concern
was as it was mentioned earlier as you
come off the Telstra Drive there's not a
lot of distance so I think the concern
is the amount of traffic if you were to
add three to three additional
restaurants there so and I noticed that
on the on the east meant that they drew
up it does go out to our property and I
don't know whether that includes our
property or not but but we did not agree
to that at all so again I did tell mr.
Dixon back in 2018 that they were not
interested in it so and I don't think
that they've lost any rights because
they do have the right to the one parcel
they do have that easement so I wasn't
real prepared I just found about this
yesterday so I apologize for that and
again thank you for more listening to me
do you have any questions any questions
or comments from my dear mr. Smith madam
chair thank you uh I'm not sure that I
understand what was the answer not
interested in doing anything Oh doing
anything for what or under what
conditions um the Declaration of
Covenant allows them to put one one
building there and I think it may even
say restaurant I'm not sure I don't I
don't recall but I think I heard someone
say that you have a copy of that so it
does allow one building to a maximum of
eight thousand square feet and that's
what the current eastman involves it
wasn't an invitation for you to develop
something or
in the action on your part right I don't
think that ownership is concerned with
with adding one building there you know
if it's within its owning requirements I
mean there's a parking requirement and
it's a matter of fact I think when when
we talked back in 2018
they added they asked that they wanted
to purchase that it's a little sliver of
laying that we have there or did they
did not mention a price and then they
also said that they might want to use
some of our parking lot so that was a
concern with with pedestrians causing
the Ring Road at night after dinner or
what have you the movement of leaves
meant the movement of access cause you
any concern you know that I don't have a
feeling on it but our corporate office
was concerned about it I don't they
didn't convey that information to me I
think in passing they they stipulated
that it was an improved safety that it
moved it further away from the right
ingress when they when we originally
talked about if they talked about using
some of our parking spaces because they
wouldn't have enough for three
restaurants or something like that thank
you so much madam chair thank you so
just to follow up on Commissioner Smith
so there so this was a discussion in the
past about three restaurants is that
your understanding that what they were
talking about yes ma'am and I think I
have I printed that off I still had that
email so and what about what they're
asking now which is a restaurant with
more parking so that they don't have to
use any darking from the mall I have not
seen this information of anybody at my
corporate office has seen it either but
I have the original one that was that
they presented but it doesn't look like
what they're presenting tonight
you know managers not okay so that was a
different discussion that's correct
you have any idea why corporate has not
seen any of this or you haven't seen any
of it
I don't know that the the notification
from the city was sent to the bank in
Dallas and they just let me know about
it today so okay thank you very much
apologize right yes so potentially a few
things but while I have you reserved
first thank you so much I appreciate you
coming and giving us that but what help
you're able to so what I'm gonna share
is more of a comment for the record and
that I hope you can communicate to the
owners of them all but this is
unfortunately very unhelpful on the part
of the mall ownership in this process it
leaves the city in quite a precarious
situation here
given that Mesilla Valley Mall has very
recently lost one of its original anchor
tenants on the same side that this kind
of development would be going on I would
think that the ownership of the mall
would have a serious stake and could
otherwise be more helpful in this so I
just want to state that for the record
but thanks again for for your input
today if I could make a comment on that
you know several I think I think 20
years ago Sears may have had 6,800
stores or something to that effect and
now they're down to about 150 so we've
been anticipating the closing of our
Sears store and we have been actively
seeking to lease it over the past year
and a half and we have two tenants
that'll take the entire building one I
think has already approved in their in
their leasing committee has already
approved the site and the location and
so we're negotiating the terms with them
and that would be a 25,000 square foot
user and then we the second user that we
have on the line is 35,000 square feet
and they went to their primary committee
and I believe it was approved there and
then it's supposed to go to us
Andheri Leadership Committee for like a
rubber-stamp approval and that's
mid-march so we hope to start
construction within the next two months
but yeah I see I understand your point I
appreciate you bringing that up and so
that you know we have actively been
doing that and outside of the Sears
building we're about 80 percent occupied
in the mall so we're not a dying mall
and I think this is a viable community
and I think the mall is doing very well
you know considering we're in a
secondary and some people say a tertiary
market so it was a population of a
hundred thousand I think the malls in
really good shape so yeah I appreciate
that and that's actually good news what
you're saying about that anchor tenant
however my comment still stand the
ownership of the Mesilla Valley Mall
nevertheless remains extremely unhelpful
in this situation but thank you for that
the beyond that I have a question
actually for the legal representation
I'm curious to know if this body were to
deny this today what legal recourse
remains for your client to proceed okay
and so please help me this is for my
understanding of process as well what
does that process look like going
forward as to whether we are able to
appeal straight to district court but I
think that probably we would be
appealing to the City Council okay yes
it's my understanding we've got a City
Council first and then if not resolved
there to district court okay and just
openly so you'll understand my question
it's just that I hope that you can
appreciate the difficulty in this body
having to try to sift through this we're
not lawyers this is a very difficult
touchy issue for us to have to contend
with what I did want to understand what
if any recourse you have going forward
that you can try to pursue this my next
question is going to be for the city
attorney actually
I'm curious in this case if this body
were to actually vote to approve this
what is the potential liability that the
city takes on by doing this madam chair
a quelle source such as a Commissioner
Sanchez sorry again I indicated before
I'm not the attorneys for the wall I
don't know what they would force her
legal strategy if for example they would
file an injunction or some sort of other
lawsuit against there's more OHS clients
and us I really can predict that part of
it for him it's potential yeah and I
might definitely not asking you to
predict it I'm not asking you to
speculate on strategy or anything what I
am asking is from your legal expertise
what can they do they could do those
things okay and I hope you can
appreciate that the reason for my
question here is just making sure that
we understand especially myself exactly
what's at stake here depending on how we
vote or not I have to be quite honest
with you personally I don't see any
issue with doing this I think it's
actually incredibly sad and laborious
and over the scrutinies to have to ask
or go through this kind of process at
the same time I have to be honest I'm
not a lawyer
I can't sift through this I don't I
don't care to speak to the original
intent of the resolution or whether or
not it legally grants you the ability to
do this so I know this may not sound
particularly helpful for anybody this is
not a good position for us to have to be
in to try to make a decision on
something like this thank you very much
miss Morrow this body cannot approve it
cannot do something different than what
staff did unless we have been given some
new information that was not considered
in the earlier process have you given us
any new information that we in the city
did not have before so madam chairwoman
and respectfully yes I do believe that
I've given you additional information so
first off I clarified what we are asking
for and in through this process which is
different than what the staff report
says that we are asking for in this
process we have provided our so can you
can you sorry to interrupt but can you
state what that is what you're saying
you're clarifying that what what is
you're asking for that's different than
what the staff thinks you're asking for
of course so the the staff report as I
as I mentioned earlier states that we
are requesting for lots we are not
requesting for lots we are requesting to
lots and and that's important from a
standpoint of historically there have
been two lots in this situation whether
there are or are not currently that
there have historically been two lots so
that's an important thing the other
important issue is is that both of the
Lots that we are asking for have had
historically access to Ring Road and
that is also an important issue I have
not seen anything that would require
only one specific access point to Ring
Road and in particular the resolution
for creating Ring Road does not specify
a certain number of access points that
are permitted along Ring Road so yes and
respectfully I think that we have
provided significant additional
information this evening both in
argument and
and just by way of clarification so and
to to your question as well and in
response to some some comments made by
mr. Dolan I want to clarify that this
the covenants the CC NRS were created in
2007 the vacation whether it ever went
through or not between lots 1a and 1b
was in 2004 so the reference and the
legal the the legal description that is
referenced in the CC NRS is to the bulk
of the property that is you know 1a or
1a and 1b that's it's the entirety of
that it's not some smaller version of
one of those Lots okay just let me get
that part straight so you you're saying
that the covenants were in 2007 yes
ma'am and the the 2004 was when the
vacation with so what happened at that
in 2000 there was a reap lat
in 2004 I believe sorry
maybe 2001 so in 2004 or 2001 there was
a replant that was taking that lot line
out of lot 1a and 1b can you show me
that on the map
so basically on this one the existing
property layout so that lot line is this
dashed line right here in the middle of
lot 1a yes so it's that dashed line so I
mean like I said we're still paying you
no taxes on two different parcels right
there and as you can see from kind of
the picture the aerial picture that was
taken on this Empire buffet was built or
kirino's was built right in the middle
of that in the middle of where that does
in the middle of where that dashed line
is and all of that area that is in lot
1a that is kind of that peach color all
of that is subject to the 2007 CC NRS
and has access to Ring Road by virtue of
the CC and ours and I wanted to also
take issue with a statement made by mr.
Dolan regarding the number of buildings
on the property there is no limit to the
number of buildings on the property
there is a limit to the number of to the
amount of square footage on the property
and that is on page 10 of the CC and
ours that are already in your packet and
so while there is its its limitation on
aggregate square footage it's not a
limitation to the number of buildings on
the property I also wanted to clarify
that and and this is consistent with the
proposed property use that we have put
in front of the Planning and Zoning
Commission we are proposing one
restaurant on this not three and we have
been in communication with the mall
regarding that proposed use
so yeah so what's the square footage
that that's allowed well so on this one
there is a limit of 8,000 square feet
and however I think that that does not
preclude the the approval of the lot
with the access that we've requested you
explain that a little more well so just
like just like I've said so right now we
have one restaurant that we are wanting
to put on lot 1a and how many square
feet is that according to this I think
about 7,000 I'm Sherman this is sorry
yes it shows on your proposed design
then if you'll bring that one up it
shows the square footage of the on lot
1a and then it shows a second retail
area on 3a of 7,200 so I don't know my
math would tell me it's like fourteen
thousand four hundred and so I think
that the issue there is not the approval
of the subdivision and that is not an
issue that staff has raised a staff
raised the issue of access and that's
what we're here about today so if we
were to move forward with building
additional structures that would even be
an issue for the CCR's that would be an
issue with the mall and we would have to
get into that with the mall and that
would not be something that the city
would be able to enforce so the CCR's
are between this youth this property of
the applicant you represent and the mall
yes and I I used to be a city councilor
and
when people came to me and said oh such
and such as in the covenants and so the
city has to abide by that I was always
told that no the city has no
jurisdiction over any covenants so so
that's what I find confusing here if the
covenants are between you your applicant
in the mall I'm not quite sure why the
city is involved I agree
madam chairwoman and respectfully to
staff I absolutely agree with that
position the city in particular with
these CC NRS cannot enforce them and the
reason for that is there and I think
that there is a difference in some other
CC NRS that the city might be able to
enforce and that difference was
clarified in village of los Ranchos de
Albuquerque versus Shively and in that
situation that was a development which
the CC and ours were required for the
village of los Ranchos of Albuquerque to
approve that development so City
actually required covenants by in in
order to approve a subdivision and
because of that they say the court
essentially decided that that was
additional zoning for that property
basically once it approved a plat and
that was combined with the required
covenants that the city was requiring
that that was essentially additional
zoning over that property that is
absolutely not what these are this was a
private agreement that was entered into
by private parties to which the city has
no dog in this fight so that is that
that's the position that we have taken
all along in order to try to move this
project forward and in order to try to
work with city staff regarding what its
position
were on on these we've tried to work
with them all in order to keep this
project moving but unfortunately and I
think as mr. Dolan confirmed we have not
gotten anything back from them all and
we can't just stall on this property use
because of another private landowner who
refuses to engage with us thank you for
that information let's eat I'd like to
ask mr. kabylia to come in on the CCR's
in the role of the city sure Thomas
certainly as far as the CCR yes it is
the private agreement however they're
asking for us for us to permit access
again I've stated this before the City
Attorney's position is that we cannot
permit access to property we don't have
control over it I can't quite hear you
can you pull them microphone okay we
cannot access provided I'm sorry
so yeah again the City Attorney's
position is that we cannot provide
permit access to property we don't own
or control we don't agree with mr.
Morrow's position I understand it is a
private agreement however the way you
look at the disagreement there's just no
access for this other property that was
created through a change in the
description thank you
sarah said you want to add something
Madame chair and I also want to include
that I think there is some confusion as
far as this going from two Lots that had
access into what's being proposed as
these three Lots as you can see on the
screen that's provided before you wear
lot 1a is is where the lot line was
vacated so there is no discrepancy that
the Planning Department or city staff
disagrees that lot to a and let me show
that map when you as you're talking
about it right here on the current
screen lot 2a and lot wedding do have
access per the agreement in 2007 it says
these two Lots have access what the
applicant came forward with is now
creating an additional lot off of lot 1a
so we're not saying that these two Lots
don't have access we're saying that
creation of a third lot is not part of
lot 1a or lot to AIDS legal description
so by changing those legal descriptions
that agreement is no longer valid so
then it's to go back to the C or to the
covenants --is that are placed on the
property so either that legal the legal
agreement that was done in when this
reap lot was done in 2001 because we do
know it's filed because it's part of the
applicants representation of their new
plat so we do know that the file has
been documented with lot one changing in
just adjusting lot lines it's not saying
that these two existing laws had access
they didn't lot three was just purchased
just created and then included into the
subdivision so the two Lots who
originally had access is lot when a and
lot to a not lot three a so by
encompassing lot three the line was just
moved over to allow lot three eight
access but that changed that legal
boundary for Mesilla Valley Mall reap
Latin number for how that legal
description not been in there I don't
think that staffs point would have been
whether or not the access was being
provided from an adjacent lot or
something that had access then it would
go definitely to the covenants
because a legal description gave us lot
1a and lot to eight it did not describe
lot 3a because that was not part of this
development at the time that's where the
discrepancy comes in thank you and then
could I ask some small you keep saying
that it goes that it's two lots to two
lots can you explain that argument again
well madam chairwoman is is part of the
issue of whether that vacation actually
was ever finalized and so like I said my
clients paying taxes on two lots the
aerial map and the zoning map included
in your packet show this as continuing
to be two lots and so that's where my
two lots to two lots comes from I think
that historically these have been to
lots and we are asking them to continue
to be to lots and so whether they are
right now or whether they were you know
at some point in the in the relatively
recent past we were wanting to lots
that's what we're asking the Commission
for today and just to clarify so on the
proposed property use so lot 3a actually
includes and like I said before some of
the the property that was already
included within lot 1a and so I just
wanted to clarify that a little bit and
and that was done in order to make sure
that it was subject to the covenants and
restrictions to mr. Gordon is there any
prohibition just to put a cut between
three am 1a so no I think that the issue
there is traffic pattern and I think
that the issue there is also whether
cross access between the Lots would be
sufficient for approval one of the
things that we were told through this
process was by staff was that simply
creating kind of cross access was not
going to be sufficient
we we did we created that cross access
and that is on file with the county but
but that we were told was not sufficient
Sarah is a true we that they can they
prohibited madam chair Commissioner
Gordon that is correct because currently
what's on file is a legal agreement
that's filed with the county giving
access from the mall property to lot 1a
and lot to 8 in that legal description
it does not include lot 3a so you're
asking someone to basically adjust the
easement agreement that was already
filed with private parties and add an
additional lot so you cannot take land
from someone else and give that to
yourself as an easement so essentially
from lot 1 am not to a they did file the
agreement because we did receive it
which was from lot 1:8 to 3a
in that process though there is nothing
from the mall saying we are now giving
lot 3a access and that's where the
original access was created and if Miami
have an opportunity to respond madam
chairwoman Commissioner Gordon I was
actually referring to a different access
agreement we filed an access agreement
providing access from one lot to bound
by my client to another a lot owned by
my client in order to achieve exactly
that just making sure that there was
access between the two Lots frankly
right now that's not a problem
he owns both Lots and so you know right
now that's not an issue at some point
he's going to want to sell one lot or
the other that may happen at different
times and we would want to make sure to
reserve an easement between the two Lots
so that's the access easement that I was
referring to that I said was on file
with the county thank you Sarah humo has
more to say madam chair and Commissioner
Gordon that is the access agreement that
I am referring to basically because that
access agreement is given to property to
property but it was not confirmed with
the original property owner who provided
the additional access in the first place
so essentially the original access came
from the mall property to lots one a
into a 1 a which is the agreement that
was filed after was given from 1/8 to 3
which is what the applicants referring
to as far as giving themselves access
you can give yourself access to
properties you own if you have legal
access to something however in this case
they received a legal access by the mall
property for only lot 1a and to 8 there
was never a legal description changing
it to saying we give you access to an
additional lot that is what we're
referring to you're not able to give
yourself land or access to land through
someone else's easements agreement and
so madam chairwoman and Commissioner
Gordon there again we come back to the
city's position regarding the covenants
and restrictions and and that goes back
to all of the arguments that I've been
making this evening any more comments or
questions yes did you want to say
something state your name again Michael
Dixon
yes go ahead response to a few the
comments that mr. Dolan made he's in an
effort to correct the issues that we had
with parking and pedestrians crossing
over Ring Road it was this that was the
reason why we increased this parcel to
the size it is now to allow for enough
parking to house the people for this
building additionally by creating this
parcel as it sits now puts it in
compliance with the CC NRS and the
city's current code for parking
enforcement as the way the building sits
now and as it set previously to when we
purchased it the building did not send
in compliance with either the local code
nor the CCN ours so adding the
additional space inherently had to
happen to make this property come into
compliance with the local code and in
committing plants with the CCR's the
parking code for their local code it's
for basically four and a half per
thousand for this use I believe and it
may be incorrect sir can correct me and
I'd know that the CC and ours are six
point six two parks per thousand square
feet for this type of use so that's why
we had to bring this property
formance the size of the building is
actually smaller than the actual size of
the empire buffet by 306 square feet
when we did when we demolished that
that's including the patio because I had
a very large patio on the east side of
the property which was dim oh when you
take the overall footprint of the
building we have shrunk the footprint of
the building and we have increased the
parking therefore solving the problem of
public safety additionally by moving the
access down further off tell short
we've also alleviated a lot of the
congestion that is on this current
access place access to the to the
properties as we're all aware in the
evenings if we try to pull into this
property when both of these restaurants
were operating it was a nightmare to get
in and out the entrance isn't wide
enough so on and so forth and it the way
that I believe that the road curves
versus the way that the access easement
curves the driveway curves creates a
problem for vehicle air traffic to get
in and out of the site additionally it
is also my understanding that with the
current CC and ours and the current at
under Section seven letter A it
specifically gives me the exclusive
right to replant subdivide expand or
reduce these properties with no further
without any question or without any
approval from the mall at all it
specifically laid out in Section seven
of agreement by because of that section
was the reason why I put this project
together because understanding the CC
NRS I never knew I would have this
problem understanding the CC NARS I had
the exclusive right to move these lot
lines around without having to get
approval from the mall the mall does
have the approval and denial rights over
my buildings or what I put on the
buildings like I can't put up a bingo
hall I can't put up you know the trashy
magazine store or something like that
further I can't put up something that's
also gonna be obnoxiously loud such as a
nightclub which I haven't done here
we're putting up a 7,500 square foot
building and a 7,200 square foot retail
building and that's it that is the only
denial process that they have if we're
reflecting back to the CC NRS what we're
asking for is that one of two things
really happen
either the Commission approves the slot
line adjustment with our new proposed
access or the Commission approves our
lot line adjustment and recognizes the
existing cross access and parking
agreement we have between the two
properties that I currently owned I
think that those I think all this other
stuff has made is got kind of there's
been a bunch of other stuffs we've
discussed tonight because it's a
complicated issue there's a lot of
moving pieces here but I believe that
those are the two items that we that
those are the two things that we have to
consider today I have a legally recorded
document that on two properties that I
owned that have already recorded that
are filed with the county they give
access to these two documents I've done
this on other properties in the city I
did I did on Valley Vista Plaza on
Avenida de Mesilla Valley I did it at
the 4301 east lomond boulevard for the
new outpatient clinic for Mountain View
Hospital I did on rank on our North rise
when I developed the urgent care of the
Verizon we're about to just break ground
on another property I have it's the same
agreement that I've used the three other
times in this city and I've never had a
problem with it and I own all of it so
the reason that it becomes an issue now
I have a hard time understanding it's a
new it's a new set of rules and this has
been ongoing since 2010 I started Valley
Vista Plaza in 2010 it's the exact same
agreement I used I got it from the city
as a matter of fact in 2010 and I've
used that same agreement three other
times and it's never ever been a problem
until this time we don't have to start
you go ahead but we don't have a cc in
our document
you have I'm talking about the access
and the cross access and parking
agreement no yeah we worked with Robert
Kyle to develop the future but I mean we
don't have it in our packet we have it
I'm sorry
I have that agreement on my computer
right now but I don't have it printed
out is there a way that I can show that
is like with the use of the elmo or
something
does it give us an opportunity to look
at it and at length and read it and try
to to figure out what it says you know
you're asking us to take on faith and
it's very difficult there's so many
things that that are complicated here
that to make a decision and here's the
thing I think that while that exists
that exists as a product of my clients
good faith in trying to work with this
process I do not believe that that is
required for the approval of what's
before you this evening but you're
presenting it at an argument as to why
we should oppose what this is what this
department uh is trying to tell you that
you can't do it I mean I'm very I feel
very badly about this in the sense that
I don't want to see this property vacant
I think that this would be a very good
project for the city I think we need it
I suppose if if the if the if the
Mesilla Valley Mall suddenly had wound
up but with Costco walking in here and
saying okay we're going to take over
that space you would have a heck of a
lot of traffic you wouldn't be too upset
about that so but yet you're staying
here and you say well we're concerned
about the traffic that this is going to
provide they're gonna have just as much
coming in off a tell Shore and it's
going to be a problem I don't know
what's coming in there now who you're
making an agreement with but it may give
us that problem and I just think that
this is a very simple solution I think
that I can't believe that Mesilla Valley
Bowl had long and said this is fine I
mean it's to their benefit it brings
people into the mall I just think that
the well I think Mesilla Valley Mall was
being very selfish in this in this
respect I don't particularly like them
not responding to the petitioner I think
they made more than ample efforts to try
to get this resolved and at some point
you just can't sit there forever and not
do anything I mean I can understand
their plight
and it puts a terrible moment it's on us
to have to make this decision I mean
there are certain legal ramifications
that we have to look at and certainly
there are a lot of moral things that we
have to think about and that that poses
a problem especially for me madam chair
and Commissioner Gordon in reference to
the agreements that mr. Dixon is
referring to a lot of times what we do
tend to see is you will get cross access
agreements from your property owners
unfortunately in this case there is a
third party that's an or a second party
that's involved and the properties that
are on
Rinconada these are coming in as part of
our platter Eve use because they are
owned all by one property as opposed to
in this case Ring Road is from a private
entity not the city I don't think in the
case if the city were to say that this
was our property we would have an issue
with providing that access but because
we have a second party and it is a
private road we do not have the rights
to guarantee an access point off of
there I think that's what the concern
has become if there wasn't a file legal
document we would be referring back to
the covenants that are on file and that
still would turn back into a private and
developer responsibility to move forward
so I think it's moving this case forward
in order to get to the next steps in
order for them to continue moving on is
where staffs position is but cirith
that's the case why did the city even
take this position they should have just
told him that that we don't want to get
involved madam chair Commissioner Gordon
we actually did work with mr. Dixon on
September 2nd of 2015 when he originally
was looking at purchasing this property
from N MDOT he came into a
pre-application meeting with staff
planning staff did at that time
alakay that there was no legal access
provided if you were to purchase that
property there were several planning
members within that meeting and I and
identified that when the case came back
in it was a different surveyor in 2018
there was a different application that
came in at that point in time and that's
where we actually identified again that
the property did not have legal access
and that they would need to show us
legal access in order for us to take in
the application of process it we then
received our next application for the
summer Erie plat in 2019 towards the
middle of the year as well so this has
been to staff's attention and we were
working with the applicant in the actual
legal access process so we're at a point
here where we could table this and say
we want those documents and more
information or we could agree with staff
and say it's denied or we could say we
think we've received additional
information tonight that says that that
there are existing documents that maybe
should be paid attention to and take the
risk that the mall might come after us
though as far as I can see the
discussions with the mall seems to be
something about some earlier project so
it's hard to know what the indicate what
would be the indications from the this
current project so that doesn't seem to
be any comment on that one Commissioner
Smith are you going to add something no
I think I agree with you madam chair
we're at a point where we either take a
position with what we've heard with new
information or we have a motion that
changes it um we don't have to have a
motion to change it doing there if we
table this issue how long will it take
to get this back to us with additional
information that they want to provide
Holy's paperwork that they keep
referring to the CC and ours and things
like
to begin and agreements that we don't
have I don't know what's happening here
sorry madam madam chairwoman and
commissioners I'm gonna step back to
allow staff to to talk but I do believe
that the the bulk of the documents that
have been discussed this evening are in
front of you in the packet and and we've
been referencing those repeatedly
throughout so I appreciate all of your
time this evening and I would
respectfully request that you approve
the the replac that has been requested
thank you and madam chair and
commissioners I would agree with the
representation by the legal department
as far as the CCR's are not within
regulations of the planning staff to
regulate as part of the documents you
were provided it was a file document in
2007 as well as what has been provided
from the resolution from 79 those are
the two document documents we are able
to regulate as far as us being reviewing
Parties earlier Commissioner Thomas had
mentioned how we do not regulate
covenants --is because that is not due
to the city-- those are private entities
and private parties that have to have
those discussions so the documents you
did have in front of you were the
documents in order to make the decision
this evening you would not have to make
a motion to approve or deny the motion
has already been to approve so if you
choose to let me go back to our
presentation if you choose to vote yes
please just provide the findings and
that would support the access being
provided to the mall property if you if
you vote no that is going to say that
you're recommending staff's decision of
saying legal access has not been
provided so if we vote no we're agreeing
with staff and if we vote yes we're
approving what the applicant wants to do
madam chair that is correct
miss morrow what could you come back up
here yes madam chairwoman
what would you say that you've presented
tonight that's new that would allow this
body to vote yes I think consistent with
my earlier answer madam chairwoman I
have provided clarification regarding
what we are asking and that is different
from what the staffs report states I've
also provided clarification regarding
what the the kind of the makeup of and I
would point you to the maps that we're
out of that one now so regarding the
makeup of the two lots that we are
requesting because in staffs report
there is reference to thank you
so in staffs report there is reference
to not only four Lots being created but
also that lot 3a was was just being
entirely created out of the NMD ot track
that is not the case and the the lot 3a
does have additional property that was
already contained within the CC and ours
I have provided statement to you that is
talking about the fact that we are
intending for lot 3a to be subject to
the CC in ours that's information that
you did not previously have as my
understanding and is not included within
the staff report say that part again
that three lot 381 lot 3a we are
intending to be subject to the CC NRS so
that that is consistent throughout kind
of the mall Ring Road area development
area so you can do that on your own make
it subject to the CC NRS so by including
some of the land that is already within
the legal description of the CC and ours
that land is subject to the CC NRS and
so because that land is going to be a
portion
of lot 3a for all practical purposes
that that lot 3a is essentially subject
to those CC NRS and you know we get back
to the legal description argument made
by staff but but that is what we have
presented this evening
I've also presented information to you
regarding the council's and city's
ability to enforce private CC and ours
that is not a position that was taken by
your staff and that is supported by the
New Mexico Court of Appeals decision in
village of los Ranchos de Albuquerque
versus Shively because these CCN ours
are very different from those considered
in that case because these were not
approved by council as part of a
development plat they were not required
by the city for any improvement of a
plat they were simply an agreement
between two private parties and in
addition to that we have discussed the
creation of the Mesilla Valley Ring Road
that was not a position that was taken
by staff in the staffs project
description on page 2 of the staffs
report they discussed that this is a
private road however it's also very
important to note and as I noted before
that while the road is a private one it
quote shall remain open to access by the
public at all times
the CC NRS under-the-sea CNRS the owner
has the perpetual right to use Ring Road
the owner is the owner of lot 1a and/or
lot 1a and
one b and has the perpetual right to use
ring-road like I said the planning staff
took the position that we were required
to seek permission for this replant and
subdivision from the mall that is not
consistent with the C CNRS and and that
even though we were not required to do
so we did and that was confirmed by mr.
Dolan and that that contact was made so
that is additional information provided
by not only mr. Pompeo but myself mr.
Dixon and then confirmed by mr. Dolan
okay thank you very much thank you madam
chairwoman okay
discussion or questions at all mr. Dolan
talk time I have I apologize just a
couple points I want to make as well you
know the when when the mall ownership
representative told him no back in 2018
it was a different site plan we haven't
seen this site plan I office here in Las
Cruces I live here I didn't see it he
could have sent it to me and I would
have forwarded it he asked my email he's
called me before so I'm available
anytime this number one number two and I
apologized about to slip earlier about
the building buildings I don't have my
glasses I was looking at the Conan I
didn't see it was buildings instead of
building but the reason that they
mentioned the 8,000 square feet in there
is because there's a ratio of cars per
square footage and we there is they only
granted the one entrance for the two
parcels they're 1a and 2a so that's the
reason why I think at the time that's
one of the main reasons they said no to
anything else that last thing you said
one entrance to the Covenant agreement
that I've seen says the one entrance for
the the to the to the pecan grill and
what was the Empire buffet and
additionally if there's a restaurant
inside the mall it typically adds about
or to a shopping experience but the
restaurants around the mall do not bring
any traffic into the mall we're
surrounded by you know Buffalo Wild
Wings and McCallister's and two chicken
places and and when people tend to stop
at those places they don't come to the
mall so that doesn't really help us
restaurants outside the mall thank you
thank you okay
discussion our questions up here okay
Joe we won't okay Becky we remember
Smith let's restate this that if you
vote yes you're saying they can move
forward with this project if you vote no
you're agreeing with staff and saying
that they cannot on the floor madam
chair I have come to appreciate this
administrative solution in a way that is
expedient and meaningful and I think
it's proper information I think the new
information I've heard here is that the
prescriptive use is within the CC in
ours for what is described as two lots I
see that P D and G is describing that
they've been in compliance with the CC
and ours and plan to extend that I like
the initiatives that they have in the
development of that corridor and I think
it fits well for the city and for the
community that is surrounding the mall
property
I vote YES for mmmm weenies this is a
hard one I haven't said made any
comments but I have been listening I'm
voting to deny I'm voting no because the
developer has interpreted some of the
agreements to how he feels the city's
interpreted agreements how they feel I
think that the mall the developer in the
city they need to get together and come
back to us they've asked us to make a
very hard decision with legalities and I
don't I I'm denying it because I feel
that they got little legalities were in
agreements weren't fully explained to me
board members Sanchez so regrettably
this evening I believe I've been asked
to make a decision in which I would have
to employ a legal expertise that I do
not have and so I'm not prepared to do
that this evening
I say regretful because I do believe sir
that city government has done a
disservice here it is not provided
through whatever course of history what
you need to be able to proceed with the
business plans that you have and I think
that also does a disservice to the
business community in Las Cruces I also
believe that the apparent silence on the
part of the Mesilla Valley Mall
ownership has also done a disservice to
the business community in Las Cruces
however as unfortunate as those things
are I still have to vote no based on and
I realize that you all have cited other
legal documents today but based on what
the city is telling me my decision can
only be based on the documents that are
provided in the packet that I have
and these documents do not allow for me
to provide any reasoning by which I can
vote yes for this so I'm going to vote
no but I strongly encourage you to
continue on in this process I believe
and I genuinely hope that this can be
remedied by people in positions higher
than mine then I'm sorry for that but I
do vote no well remember good oh all
right so this is a really hard choice to
make kind of for the same reason that
some of my colleagues have said so
typically I would just follow staff
recommendations but I vote YES tonight
just for the reason that I feel like the
applicant has presented enough evidence
as well as you know just kind of back to
a comment the Commissioner Sanchez made
as well about them all I feel like
that's a totally different issue that
the city should not beginning though
that's between the the mall and the
applicant but I will say that it is
disappointing just because I know that
I'm pretty sure Mesilla Valley Mall is
just one of the many malls if this
person owns and this just kind of shows
like hey we don't care type thing
because the applicant has tried to reach
out but just in summary I will vote yes
I feel like you know from a public
safety stand from bringing more business
bringing more jobs I feel like that is
beneficial like so typically I would
just follow what the city suggests but I
feel like you know this time the the
applicant and and Miss Morrow have made
a very very good case so I vote yes
remember Gordon
based on our discussion this evening
which has gone on for well over two
hours and the presentation by both
parties I think certainly number one
that this definitely indicates our new
elevate las cruces it certainly is in
conformance with our new comprehensive
plan and we just recently approved the
representative from Mesilla Valley Mall
said that there was an intent on a part
of the owners to sell them all perhaps
if the new owners come in and they might
be very happy with what the petitioner
wants to do I think also that there is a
lot of economic value here there will be
jobs there'll be some revenue generated
through tax I don't want to see a vacant
lot there forever it's bad enough we
have to we have to see it now and I
certainly think that if PD and she is
willing to run the risk of perhaps in
the future having to deal with Mesilla
Valley Mall is some kind of a conflict I
think that they will be I think they
will prevail in which case I am voting
YES chairperson Thomas this has been a
long discussion and it's been very
difficult it's a lot of information to
try to understand at this point though I
feel that I have a different
understanding of what the applicant is
asking for I have my past experience
says to me that cities the city doesn't
use to get involved with CC in ours I
think that it would have been helpful to
have the CC in ours but I
I've I tend to give more more credence
to the CCR's and I think that we this
just this going forward this is a
decision that's going to have to involve
both the applicant and Mesilla Valley
Mall
I don't think Mesilla Valley Mall has
like many people have said really
haven't stepped up so I've liked to see
this project go ahead and I think you're
going to encounter some other issues but
I think it's time for the city to step
out of it so I vote yes so it the
application the applicants proposal
passes for two - can we take a
ten-minute break and come back for the
last item
motion to approve in a second I make a
motion that we approve case number one
9v zero zero five zero zero one four
three second okay it's been moved in
section that we approve this case and
we'll turn to Sarah for presentation so
before you is a proposed variance
request 450 401 Longview lane currently
the property is located at 50 401
Longview it is a single family residence
that encompasses 10 acres in size it is
owned Arwen AC which is single-family
medium density conditional the condition
that's on the property is just to place
utilities underground the property was
annexed and zoned in 2007 here's a
zoning map of the subject property as
you can see it's kind of hatched that's
how we designate our conditional
properties the surrounding area is
primarily residential there's a few
commercial properties located to the
north and then we do have our a2
properties that are located to the west
here's a blown-up aerial map I'm
actually showing just the subject
property at hand and showing you how the
single-family residence is located on
the 10-acre property and then where
they're going to be proposing to put the
additional home so as stated the
applicant is your question to put in a
second single-family residence on the 10
acre parcel due to the property the
applicant has stated that they do have a
fixed income so this will help as far as
their income goes and then they're also
closer to their son and their
grandchildren in order to help out with
watching the children as they are
growing up and then going to school
here's a site plan of the subject
property so as you can see you have the
existing home on the property which is
located here towards the south side this
would be on the west side is basically
where your property line is and then
this would be the new home that is
constructed on the property through
review staff did not find any health
safety or welfare issues identified
however there was a comment or a concern
based on the fire
Harmons request of an additional home
being on the subject property because
there is not a hydrant close enough to
provide fire protection for the second
home going in notice was sent out to all
the surrounding property owners and we
did receive one phone inquiry basically
supporting the proposed variance if it
were to move forward due to the
circumstances of the property owner
however with that staff is recommending
denial we do have strict criteria in
which staff can recommend approval for
variances the property is 10 acres in
size and is owned Darwin a which
currently already has a single-family
residence which is what is allowed by
code right now with that it's also
adding an additional one dwelling unit
does not propose any variance criteria
as far as it does not bring economic
value to the city it does not show any
topography constraints within the
property so when we look at our variance
criteria as far as staff recommending
approval we're limited to what code is
provided very short and with that the
applicant is recommending denial so
therefore if you choose to approve the
request you would have to provide new
facts of finding not found within your
staff report if you vote to deny that
would be basically the staffs
recommendation you can vote yes with
conditions or go to table the applicants
are here as well if you have any
questions or any presentation that you
would like to hear from them let me
share my family I think I thank you
Larry Nichols community moment I think I
heard you just say the applicant is
recommending denial no the applicant is
present yes I think did I miss the staff
is recommending denial thank you because
of the variance proposal based on code
criteria questions or comments from
commissioners okay the applicant would
like to state oh the applicant would
like to speak okay thank you do you
swear and affirm the testimony you're
about to give is the truth and nothing
but the truth under penalty of law I do
would you state your name my name is
Dennis Smith I have to say I'm almost
embarrassed to be up here after the last
issues were dealt with but here we go I
am the owner of my wife and our the
owner of this piece of land which is 10
acres we have owned it for about 43
years and paid taxes on it for all those
years have gained nothing from it and
we're at the point now where we would
like to to be able to to live on it we a
few years back a couple of years back
our son was having some issues and we
helped him out by putting a house on the
corner of it for him and his current
wife to to live in and they're doing
much better as a result of that so we
understand that there are rules and
based on those rules that planning has
has said that they did not approve of
this and I believe in rules but I think
there should be exceptions to some rules
under certain cases the rule is as Sarah
stated one house per lot this is not a
typical lot it's 10 acres and I can
understand that rule if you were trying
to put multiple houses on a quarter acre
lot or something like that
but we're asking for one more house on
10 acres it would be a nice house all
the neighbors are encouraging us to to
move out there and and be their neighbor
and we would really like to do that and
need to do it where as Sarah stated
getting up there in years we would like
to
to the point in our lives where we could
be comfortable with our our sons who
live in the proximity of that and depend
on them for help as we age there there
was an objection from fire from a
standpoint of the hydrant is over 600
feet from where we would like to put our
house two things I would like to say
about that is one there are other homes
further from where we from the site we
would like to build on and they are
there also we have received permission
from moon gate water to install a
hydrant right on our property line so
that issue goes away completely the
other issue that fire pointed out is the
road is not paved to the property and
again that's that's true again there are
other homes in existence which live
beyond off of the the same dirt road and
they have fire coverage we it's it's
interesting to me that if we moved our
building site onto the adjoining piece
of property a few feet literally then
there would not be an issue because it
would be one house on each of the two
pieces of land the problem comes in two
houses on one piece of land when in
reality it would be closer for the fire
department to come to it would be easier
to deal with than going 50 feet further
or whatever to be on a separate piece of
property just because the rules call for
one for per piece and that that is why
we would really appreciate your
consideration of this and and give us
the help and approval that we're asking
for and that's all I have
thank you very much thank you ma'am I
have a couple questions for Sara so
they're on the second page of this
packet under criteria for decisions
it says hardships are not considered
personal or monetary but on the next on
the next page it talks about a physical
hardship relative to the property the
potential for spurring economic
development okay wait what's it what's
going on outside and then it says
monetary considerations not as a whole
but relative to options available to
meet the applicants stated objectives
when such options cause considerable
monetary hardship under strict
application of code provisions so does
that to me those two things are in
conflict one says not monetary and the
other one says monetary madam chair and
commissioners and that is why a lot of
the times when we use the monetary
standpoint it's based on interpretation
and so that usually will come from our
administrators as far as is this a
monetary hardship monetary hardships
could come into place whenever you're
seeing developments you know a property
owner has invested into something didn't
know regulations didn't know that these
were the cases worked with someone else
they didn't divulge that information
kind of how when we bring our carports
forward and we indicate okay they've
worked with a contractor didn't know
they need a permit it's in the wrong
place they've put in that monetary
constraint but it's still limited as to
what they can use as far as monetary
hardship when we look at variances it's
based on a case-by-case basis so in this
case is there a monetary hardship to
basically place this home on this
property or could it be placed on a
different property
it doesn't classify how you interpret it
or how you regulate monetary standpoint
from anybody standpoint any variance
comes forward is always a monetary
hardship but our code doesn't say that
it's a monetary hardship to development
or to anything being proposed so we
usually rely on the fact that we have
topography constraints for variance and
it's going to produce economic hardship
or you're going to provide economic
expansion within the city monetary is
not defined in our code well enough to
say that it's is a monetary hardship to
someone's building something or being
proposed because they choose not to put
it on a different property or because
they choose to place it on something
they don't have and so the variance
criteria for monetary is very hard to
regulate so I have another question then
so probably these dismissed purchased
this property when it was part of the
county and then it got annexed into the
city okay and said I'm sure that's
correct yes so they would not have known
when they were in the county that this
was going to be an issue madam chair
also in speaking with the property
owners there could have been a time also
when you were located in the county and
they could have possibly subdivided this
property had no road improvements the
variance process allows them to go
through the process to see if they can
get a second home on the property
without having to go through a
subdivision process because I would also
lead to additional cost and maybe that
would come in to where you would see
that monetary hardship because they
could separate the property and put a
home on each one but then we're limited
also to the road improvements that have
to take place by that property owner
sewing through the county process in the
etz you were able to subdivide not do
road improvements and so some of those
roads are that way or there would have
been more possibilities I believe and so
so they're not a variance doesn't
require road improvements but there's
something about installing utilities
underground if they if they were granted
the variance would they have to install
utilities underground madam chair and
Commissioner that is correct but that's
with any new development now back in
2007 and prior to that any of the
ordinances that went through City
Council always had those as a condition
that was to alleviate all of the
electrical lines that are going up and
the power poles because that started to
limit people on basically the
development of their property so that
was just a general comment that was
always added to any zone changes I came
in so in 2007 the property was annexed
and then limited to that condition of
that time we no longer place those
conditions because that's normal
practice now okay
do you think that the Smiths if they
were given the time to do it could put
together an explanation of why this is a
monetary hardship that we would be able
to accept I would have to address
additional staff to see if that was
something we would be able to look at
when staff reviewed this as a whole we
looked at it from the three stand points
and could not find that it met with Ina
any of the criteria that's why we said
it did not meet any of those if we would
have found one that it would have met we
would have identified that so all three
were discussed we did not find that any
one of the three would have been
supported by staff so the fact that they
bought this when it was in the county
and didn't expect these kinds of
restrictions or this kind of cost
doesn't count as a monetary
consideration madam chair I'm not sure
what the county zoning designation was
at the time either so did the county
zoning designation also say that only
one single-family home unless subdivided
was a possibility I'm quite sure that
having worked on the county plan and
knowing what the zoning was like before
we passed the county plan I can
that they would have not had any
problems right and being when the city
would have annexed them in in 2007 the
zoning would have been available and
that zoning has not changed and the code
has not changed since that time frame so
it would have been available to see that
there was only one home permitted within
that lot from 2007 on yeah but they
don't it for some time before that
mm-hmm
so comments from other people um yes mr.
Gordon firstly I don't think this is a
financial hardship because they're gonna
be building another house that has the
cost X number of dollars so I don't know
whether or not it becomes a financial it
may be I don't know how big a house
they're planning on building but I think
there's mr. Smith a question if you
don't mind
yes sir I don't I really don't like to
be I really don't like to be personal in
this but I'm also looking for another
way for me to get you this variance okay
and you say that you want to move on to
this property to be closer to your son
and his family is that to provide some
type of is there a reason that you're
going to do that a specific reason I
don't have to know what it is but there
has to be some reason for you to where
are you living now we live south of town
south of the University uh-huh and this
is north east north no I know where it
is okay all right so did you perhaps
even consider perhaps just putting on an
addition even though it would be part of
the house separate no we do not at this
point feel like we want to be moved into
the same house as our son we have
another son on a short distance
different piece of property who has
three sons young and they depend heavily
on my wife and myself to help with their
kids so it's it's to help a hardship
they have and also to help us in the
future as we get older and need help and
we have a financial hardship in the fact
that there's no way we can meet the
requirements to subdivide pave roads and
so forth that is way beyond any means we
will ever have well there is also the
avenue of getting a waiver but that's
that's another another task that you
have to go through and if I might add
sir when we bought this land you could
split land you know into two pieces and
we can't that has changed we steinborn
and company were going to buy the land
from us some years back and develop it
that's when the annexation occurred and
we became part of the city and the rules
all changed and then they bailed out and
did not buy the land
so that's what put us in the situation
that we're in now so I would assume it
where you own the house that you live in
now yes we do so you would sell that yes
sir and then just go build another one
yes sir mm-hmm I would thank you very
much you're welcome can I show Smith
[Music]
madam chair thank you of Sarah and madam
chair maybe I refer refer this question
to to fire the topic of safety
thank you good evening I'm Mark Duggan
with Las Cruces Fire Department I need
to swear you in do you swear and affirm
that the tempis testimony you're about
to give is the truth and nothing but the
truth under penalty of law yes thank you
state your name again Mark Duggan thank
you for coming today in brief it was
discussed that fire was concerned about
distance does the moongate solution
apply it would there's basically there's
two issues the the first one is the
water supply there isn't a hydrant
anywhere near the property I believe
it's over a thousand feet away so if
they installed one of the property line
then yes that would meet the fire flow
requirements the other the other issue
is the distance from pavement the
nearest paved road is many hundreds of
feet away the house itself set back over
a hundred and fifty feet from the road
itself so adds a greater distance we
have some responses in those areas where
the trucks or the ambulances mainly for
medical response have to carry people
500 feet sometimes to get to the
ambulance we were not really equipped to
respond in foil vehicles so we we have
to deal with whatever conditions we find
when we respond so the fire code has a
requirement to be able to get within 150
feet of those structures there are other
structures out there that we can can't
get within 150 feet of we want to
minimize those as much as we can the
solution to that would be pavement only
or pavement or alternatives the code is
strict regarding an all-weather surface
is how it's defined in the code Sarah
are there alternatives
commissioner Smith there are
alternatives if they were to go forward
through DRC through this process the
applicant is not required to improve
that right-of-way they would be required
to improve that right away if they were
doing a subdivision and that's when the
alternative options could be available
that's where we have Pam Liu of a
smaller distance as far as fire code
based on the variances is the second
home going to be permitted on the
property since there's already an
existing home on the site now the
current conditions are there so this
would still be a fire code regulation as
opposed to the variance request that's
at hand so these are options as far as
moving forward how would the property be
able to accommodate is there going to be
a concern if a hazard does happen there
and they don't have the access then you
have to get really close to it
apparently so not that close I would add
that the that as it was pointed out if
the applicant were to build his house on
his lot next door then he would not be
required to make those improvements
because a person is allowed to build a
single home on on a single lot
so anything that would mitigate those
circumstances would help certainly the
hydrant would help mr. Smith did you
want to add something I just wanted to
reiterate that there are other homes
further down the road than we would be
and they are given fire protection as
needed I assume or they wouldn't have
been approved but there as far off the
road as you are your way at the back of
the lot oh the picture is deceiving if
he could bring it back up
also sir could you just tell us where
Longview Road is is it this long
stretcher this short one so it's only
330 feet we're talking about is there
any estimate of what the road waiver
would be look what the road course would
be I'm sorry oh okay
Longview lane is an extension of
settlers pass so settlers passes paved
where it ends I believe it becomes
Longview lane we can never pay for
pavement that far but again if you were
just a few feet further north on a
separate piece of property we would not
have this issue it's that the problem is
trying to put two houses on one piece of
property
do you own the other lot yes yes ma'am
we do and we are not building on it
because we hope that someday in our
lifetime or our children's lifetime a
developer will come along and have the
resources to develop it which would be a
big boost for the city because it would
be many houses on one 20 acre lot we
cannot do anything when we bought this
land it was dirt cheap and dirt was a
lot cheaper back then than it is now so
there's a lot of development around you
we're a south and east and some coming
in north a great deal coming and so it
seems to me at some point greater
development might occur there it's not
possible for you to it wouldn't help any
even if you just paved the part that was
in front of your property I mean it's a
huge long road that needs to be paved
yes and we have some subdivisions on the
East Mesa that don't want their roads
paved who've come to the city and asked
us to work with them so that will not
happen so
there are quite a few houses on this
stretch that's not paved if at some
point everybody on that road agreed they
wanted to pave the city would work with
you all to do that and we've done that a
couple times but I don't I don't see any
sense in asking you to pave the roads
installing utilities underground is that
a problem you have to get really close
to activate the Mike hello okay
it's we can afford to do that
the only thing the main issue would be
the electricity running underground
it's magnifica 'no mount to the building
situation but it's doable as opposed to
the road which is not doable okay madam
Sheriff yes if I may follow mr. Smith to
to fire while he's nearby and he can
snuggle up to the microphone yes
counselor okay you're doing great do you
find in practice that it would be
reasonable and acceptable that it's
paved well in front of a house should
there be some issue for delivery of your
service rather than dirt or is it
required or practical only that all of
its paved it would be that it was that
it was all paved I mean I would agree
with chairman Thomas to the paving a
section of it would not would not help I
think feasibly the the hydrant would add
a lot more benefit to the public safety
of the area then then a section of road
mm-hmm Thank You Sara did you want to
add something Madame chair and
commissioners I did confirm with our
legal counsel how monetary is basically
established and how its regulated is if
there are no other options for that
property owner who is requesting the
variance in this case we do have an
option which is why staff recommend a
denial for that option just to clarify
so what other options what were you
saying that other could have been to
place a single family home on the
northern property because they do own
another property and would not require
variance or any of the improvements so
from the standpoint from our standpoint
as staff we would say that that would
lead to you have another option as
opposed to this would be your only
option on a site I see thank you how far
away is this other piece of property
that they would perhaps put a house on
in terms of being close to their
children it's not miles huh the property
is just north of the subject property
could you point it out with your cursor
there so it's basically right next door
is it another 10 acre piece of property
madam chair I believe that is larger
it's a 20 acre attractive land oh it's a
20 acre tract and also can only have one
house on 20 acres madam chair that is
correct as acre in zone it only allows
for one home and so if one house were
built there then it would not be
attractive to a developer because they
would have already built one house right
madam sure that could be a possibility
correct
mr. Smith for me my thoughts but I think
I've heard from the applicant the sort
of a sequence of thinking over the years
and in their current planning that
they're trying to be efficient with use
of land but I also see and hear through
staff that there are alternatives not
yet being observed or sought those are
just thoughts
I don't have a conclusion from it and I
think I have the same thoughts there
might be another option though I can see
from their thinking that not not
spoiling that other twenty acres for a
potential developer which is a pretty
wise decision madam chairman if I may
yes mr. Nichols
so mine is on only I can speak mine
works just fine
[Laughter]
all our recorder is absent so laughter
wait till they come back you're okay
yeah okay Larry Nichols community
development members of the Commission
you know every once in a while we give a
project like this you know middle like
this where they have purchased land the
number of years ago they were in a
different jurisdiction at the time and
and now they find themselves in a
jurisdiction that has other regulations
and rules we've discussed this project
quite quite a bit we know that we have
to follow our regulations and making
recommendations to to the Commission we
have no options there but we do have a
vehicle that the variance possibility
and I think the variances is a item that
addresses projects such as this and I
think that the Commission could consider
this project with with conditions and
and maybe see what could be done that
way
every one it can have mine madam chair I
find myself I find myself veering
towards this idea of with conditions so
the moon gave water a hydrant set near
property and some attention to road
grade feels right to me
it's a corrective action that give
safety it's due attention and I think
that there is a facilitation to their
plan their long-term plan for their
lifestyle that could be made available
chair thomas commissioner smith i think
the fire department concur with the with
the variance i think we could support a
variance to that effect rather than
build a brother than build a house on
the twenty acres next door to have the
second home with the fire support here
IAM from this side okay yeah the las
cruces fire department could support the
variance of the hydrant in the road in
lieu of road improvements so that we
don't have a house on that twenty acres
next door with a single home in lieu of
yes road road improvements so the
hydrant proximity serves your needs i
think it's a good compromise it would
improve the overall safety of the area
to have that hydrant so you're saying
the hydrant would be quite important and
other kinds of measures not so much
[Music]
yes mr. nichols would you explain what
you were talking about before what I was
suggesting was that for this particular
project the option that is available for
projects of this nature is a variance
consideration and some of the things
that mr. Deveaux just mentioned from the
fire department would be a condition the
applicant has said that he could
consider the possibility of underground
electric I think there's probably a an
electric service to the existing
property and so it could be taken from
that that transformer back to where he
would locate your property and that
portion could be on
would that be correct there's actually a
transformer closer than that to that we
would come off of I've already spoken to
the electric company can you now okay
there's actually a pole with a
transformer on it closer to where we
would be building than the existing one
where our son's house is so yes the
power is there so so do we have to say
that we vote yes based on monetary
issues and with certain conditions madam
chair and commissioners if you were to
vote YES you can state using any type of
our comprehensive plan you can state
monetary you can state any reason as to
why you would approve it that was not
provided in your staff report because it
was recommendation of a denial because
we're bound by code so you would just
state since it's already on the table
for approved a motion would need to be
made saying we approved with conditions
the conditions laid out seconded and
then you would make a vote we need a
motion to do that too because we only
have a motion right now to approve we
need a new motion to approve with
conditions if conditions were placed on
the property okay so I'm understanding
the conditions to be installing a
hydrant
we receiving electricity off of the
existing electricity that's available
nearby the next door service is nearby
is there another one okay just somebody
want to make that you want that it and
someone you want to make that motion
madam chair I can make that motion
that we hope to approve with conditions
and those conditions is include moon
gate hydrant at the property line and
electrical access from the available
stub out is there a second I'll second
the motion
thank you good night
now you may vote chair now you can vote
on them okay Becky can you call madam
chair I vote yes with conditions based
on the idea that it meets master plan
community development and hardship
renews
can you hear me yeah I vote yes with
conditions for member Sun shines the
fire hydrant and the electrical
underground electrical that board member
Sanchez please so vote YES based on the
monetary hardship and the additional
costs they would incur to do something
other than this I will vote yes with
conditions I was going to vote no but I
will vote yes and conditions you know
best of luck
remember Gordon based on our discussion
here receiving the conditions that were
put on the petition or for a fire
hydrant and bringing electric power from
a source yes and chairperson I vote yes
given the conditions that we're putting
on the proposal so that they could go
ahead and not not suffer from a hardship
no madam chairman if I could I guess
make one one correction on the
electrical service and that was to vote
that the electrical service that's
existing from that point would be
underground to the new to the new
property but they could utilize the
existing one above them yeah I see does
everybody agree yeah I think everybody
understood yeah okay
yes all right all right now Sarah you
agreeable you know are we okay now we
have to go back to the original motion
madam chair based on the motion that was
already presented you had already
brought the case forward with approval
when we redid the motion to approve with
conditions and everybody did their vote
we have now basically voted this motion
as approved it has passed seven and with
that underground notion as far as the
electrical power that's already part of
the zoning so we can't deviate from a
zoning requirement so it's glad I'm glad
we added as a condition but it's a it's
a condition that's already placed on the
property as it exists so motion would be
approved with condition that the fire
hydrant be installed at the beginning of
the property and then all utilities are
basically underground
as per what the zoning requires already
but they can do the underground from the
existing yes there's no there's no
designation as to what power source you
come from it's just if you try to
install any overhead lines that's
usually the city's concern yeah okay and
we don't need to go back to the other no
we've already voted and then everybody
has already provided their finding as to
what they have approved okay mr. and
mrs. Smith good luck all right last is a
commission commentary anybody have
anything to add tonight this particular
last case only brings back to mind the
problems that we have had especially
since I've been on a commission in the
last six years where a property that
originally was located in the county is
now located within the city and people
are basically trapped now by laws that
they did not anticipate when they bought
the original property like in this case
here you had it for 43 years so I think
that when the community development
starts its next project which is redoing
the zoning laws that's somehow someway
some consideration has to be made either
grandfather these people in or make some
way that they can afford to do things
that they anticipated they wanted to do
when they originally bought the property
and I think that this just as a reminder
we've talked about this from many many
times and I know that mr. Nichols has
has told me that the next project that
community development is going to do
will be disowning so let's hope that
somehow or other these problems will
reoccur Commissioner keigher I just a
kind of side comment I just wanted to
thank you guys for waiting it is 914
right now and you guys have been here 6
o'clock
unfortunate guys have to sit through the
first case just to get hurt but thank
you so much for being patient
anymore for comment yes Commissioner
Smith madam chair in concert with
Commissioner Gordon's ideas I think I
would also emphasize it's reassuring to
know that staff is consistent with their
recommendations are consistent with
their procedure and consistent with how
they present what is in front of them
you know in a very fair way that's my
point
thank you mr. Sanchez just one more
thing real quick thanks again to city
staff for all your hard work this you
anyone else any staff announcements
madam chairman and commissioners just
one staff on an announcement in some I
guess this is Bo repeat but I want to
thank each and one of you for your
participation on the CPAC committee and
also on helping to get the elevate las
cruces comprehensive plan approved and
we'll be putting that into effect right
away
the second item that would be is we will
be undertaking the zoning code update
and review so that it is an in concert
with the elevate las cruces I think
that's something that hasn't been
revisited since 2001 I believe so it's
time for that review and update on that
thank you madam chairman that's all
anyone else can I have a motion to
adjourn
since my mic works motion to adjourn
I'll second we've been second to join
all those in favor say aye
okay we're adjourned it's it's nine
almost 9:20