A 'Zoned' Zoning Application

A zoning variance is an administrative exception to the land use regulations for a municipality. A property owner can obtain permission to "break" a zoning law if applying the existing law either renders his property unbuildable or otherwise causes hardship to the landowner. It is the burden of the applicant to justify the hardship claim.

Last June, Attorney Eliu Romero submitted an application to the Taos County, New Mexico Planning Commission seeking permission to erect sixty-five industrial wind turbines, each exceeding the maximum height permitted for structures in the county. At the public hearing on the application, the Planning Commission voted 6-1 to postpone its decision in order to receive more technical information on the proposal.

Indeed! The responses Mr. Romero entered on the variance application suggest he has no knowledge of law pertaining to variance requests. Or worse. He blew off the planning process and ignored the minimum criteria required to protect the health, safety, and welfare of those affected by relaxing the laws.

Below are several responses in Mr. Romero's variance application (underlined):

Explain how the variance requested is not substantial: (left blank)

State how the failure of the Commission to grant the variance would result in such practical difficulties as to make it unreasonable to apply the strict letter of the regulations to the property which is the subject of the variance application: Denial of the variance would kill the project.

State how the granting of the variance will not create a danger to the public health, safety, or welfare: This is a true statement.

State how the granting of the variance will not cause extraordinary public expense, create a nuisance or cause a significant detriment to nearby properties: This is a true statement.

Mr. Romero's application was not only inadequate, it was inaccurate. He cited the turbine height as 284-feet rather than 384-feet, an inexcusable oversight considering he was seeking relief from the County's height ordinance.

Perhaps sometimes concepts behind zoning variances may be confusing, even to lawyers like Mr. Romero. However, Windaction.org was very surprised to learn that the County Planning Commission agreed to accept the grossly deficient application, deeming Mr. Romero's sloppy work sufficient to hold a public hearing.

Unfortunately, this is not a unique situation. Windaction.org has corresponded with many people across the U.S., Canada, and in Europe where similar "misunderstandings" have been allowed in the name of wind energy development. Planning Commission members do not seem to understand that by considering such variance requests, the Commissioners threaten the surrounding property owners and abuse the public's trust.

In September, the Taos Planning Commission voted again, deciding to continue the hearing until December 9 citing "a lack of technical information and time to digest it". A more appropriate action would have been to deny the application immediately, and respectfully ask that Mr. Romero not waste the public's time or resources.