Is the Zoning on Your Listing about to Expire???

Posted on Jan 23rd, 2012

Written for GAAR by: Lauren Austin (The Ingles/Company Realtors)

The Planning Department of Albuquerque recently announced that on March 27, 2012  "grandfathering" for an estimated 6,000 properties will expire and become immediately illegal.  Any property zoned for a single family residence that has a casita, in-law apartment, or multi-units that contain a "cooking apparatus" will no longer be allowed to be occupied and the owners can be fined and the unit must be vacated.

Prior to 1959 Albuquerque did not have a Zoning Code and at that time 53 years were granted to allow owners to correct the non-compliant situations.  Zoning Enforcement has now stated that they will begin to enforce the code unless the owner of the property can show proof that the unit was occupied prior to 1959 and apply for a "Status Established" hearing ($148) or a "Zoning Certification" ($200)  which will require an application, proof of non-compliant use historically, and a visit from a Zoning Enforcement Officer either of which must be accomplished prior to March 27,2012. 

This situation is further confused by the fact that there are 47 Sector Plans in Albuquerque and each of these may or may not address the issue of multiple units (e.i. house with an in-law apt. or casita) and if the Sector Plan does address the issue the 53 years may or may not begin when the Sector Plan was first implemented or it may start on the last amendment.  So, for example, the Huning Highland Sector Plan does address the issue in 1977 and the plan was modified in 1988 so properties in this area may have 18 years left or 24 years left before the properties become illegal.  

As Realtors this is an issue that will greatly impact our industry.  Imagine selling a property (or representing a buyer) that has a multi-rental unit (house w/casita for example) in a single family zone  and finding out later that it will soon become illegal.  Imagine trying to find financing for these units. 

 Over the last few months every question regarding "Status Established" has been met with multiple interpretations that can change week to week.  Planning and Zoning can only enforce the laws as they understand them. The City Council is the only body that can address this issue legally.

In speaking with Juanita Garcia of Planning and Zoning (924-3823) on this last Friday she said that she has been asked to suggest several solutions to the Council.  One idea was to give a one year deferment to enforcement so that the information could be given to the general public.  This has been tried before and didn’t work. It is a stop-gap measure at best and does not deal with the issue that there are potentially 48 different dates (Zoning Code plus the 47 Sector Plans) that will be the enforcement deadline.  Perhaps one solution is to suggest one date in the near future that is enforceable for all.

Please call your City Councilor and inform him/her of your concern regarding the "Status Established" issue and encourage them come up with a concrete solution to this issue before March 27,2012.

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Comments (14)

"These kinds of properties are exactly what my investor clients are looking for. Talk about making it difficult to move income properties. Owning income producing homes is part of the american dream, what's happening? Now I have to face my clients and explain an issue in which there is no current solution...?? I'm rolling with the answer of it being a corporate move from UNM and its affiliates so they can push their new housing complex at Johnson Field. Duplexes, 4plexes here we come......."

"If you want to be effective, contact your City Councilor or go to the next City Council meeting Feb 6 at 5pm. sign up for public comment and ask the City Council what they plan to do about it and how this will hurt the people if it's not changed. I did contact my City Councilor and he will bring it up at the Q & A portion of the meeting, but it is more affective when the public comes out and addresses the issue during the public comment portion of the meeting. The more people, the better. so go out to the Next Council Meeting Feb 6 at 5pm. Get involved and help make a change. "

"Spoke to a City Councilor. He will be bringing it up at the next Council meeting during the question answer portion of the meeting. "

"What is the purpose and where is the harm? Also, how in the world does zoning pretend to be able to enforce 600+ properties? They are already backlogged. How will they decide? By lottery? Short straws? Kiss and tell? I have a property right now I've been trying to close since Nov. because of a casita question. Zoning's right hand doesn't know what the left is doing, no one will make a decision or put their signature on anything. It is very frustrating for both sides of the transaction plus it leaves everyone unprotected. Stop kicking the can. Grandfather everything in. Reboot and carry on. "

"It's no longer just about removing a stove for a sale - it's about the whole issue of having two semi-autonomous quarters on one lot - even if existing for many years and separately metered. If the property owner has not already established a "conforming-nonconforming" status, the ability to do so will be eliminated. It's also about making a conscious decision (or not) to decode HOW TO GROW in Albuquerque. Do we want more and more apartments in areas like UNM/Nob Hill? Or would re-establishing an ethic that embraces family compounds and small scale accessory units be more in keeping with Albuquerque history and character?"

"I think Karen has it right. If a change is wanted, make it on future buildings. This rule could have a huge affect on many parts of ABQ, but especially in the areas surrounding UNM. From looking at the massive amount of new housing being built around UNM lately, it seems to me that this rule change is likely due to (corporate) pressure from the owners/operators of these additional units. Kill the competition by making them illegal? The burden of "proving" that is was occupied prior to 1959 is on the owner?? Who comes up with this nonsense? I argue that these 'casitas' are part of the character of the neighborhood and any that were safely and legally built should be grandfathered in."

"P&Z in Albuq.-Bern. Cnty-Valencia Cnty. and I am sure every part of the country seems to have a very hard time keeping up with themselves. I know of 2 "Casitas" that were legally (with permits) built withing the last few years. Now they are not "LEGAL".... We need to let P&Z know in a LOUD voice that they must allow existing "additional living" quarters to stay and not allow any additional ones to be built."

"Once again it appears that we are changing a perfectly good policy for no good reason. Who does it hurt to extend the grandfathering?"

"The removal of the stove was the common "wisdom" of the past but in a meeting with Matthew Conrad of Planning and Zoning this issue was raised with the question of microwaves and crockpots and the answer was "Can they cook something?" hence the phrase "cooking apparatus" instead of "stove." I also raised the issue of outdoor kitchens but was laughed at. Oh, well. "

"My understanding is if the stove/range is removed, so is the problem......but I've been wrong before."

"I have two of these kinds of properties which are bank-owned and will be coming on the market shortly. This situation is a real mess and hard to grasp. What are my liabilities as the Listing Agent? Selling these could be a legal nightmare and it doesn't appear that the City has any solution to our dilemma."

"Is there a place where we may oppose this ruling? How ridiculous that the space can not be used by an elderly parent, or family member in time of need. "

"assuming the "cooking apparatus" is removed (IE; stove, range, oven etc..) would that make it within compliance? "

"This is a huge problem in Downtown and North Valley"

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