NOD Findings & Conditions Unsupported by Evidence

“This is a request for conditional use approval to allow a church and incidental facilities.”

At the July 1 hearing, County staff stated that the proposed school and classroom component had “rose beyond what would be an incidental use” and “would be kind of a conditional use on its own.” Staff explained that the school use would require separate conditional-use consideration unless it was removed from the proposal. (Exhibit 11, TR-82–83.)

The Applicant’s representative then testified that the Albuquerque Islamic Center Board had decided to “remove the school entirely from the project,” stating: “There is no school. There is no preschool classes. There is no elementary school. There is no middle school. There is no high school.” (Exhibit 11, TR-85–86.)

The CPC thereafter imposed Condition 1: “School not allowed.”

The appeal does not dispute that the school was verbally withdrawn at the hearing or that the CPC imposed a condition prohibiting a school use. The remaining issue is whether the approved project scope was sufficiently definite and consistently incorporated into the documents on which the County acted.

The Applicant’s July 1 Written Statement in the County record still refers to “educational programs, daycare, social events.” The site-plan materials identified in the appeal include rooms labeled “Daycare,” and the parking calculation includes a school component: “School: 3 spaces per classroom × 16 = 48 spaces.” The appeal identifies an unresolved discrepancy between the verbal withdrawal and the written/site-plan materials, contending that no amended, stamped architectural drawings clearly and consistently removed the school/daycare uses from the project documents considered by the CPC.

“The site for the proposed use is adequate in size and shape to accommodate the use, as the property is 3.9 acres in area and provides sufficient area to accommodate site features required by ordinance. No variances were required for the request.”

3.9 acres and no variances are facts, but they do not establish adequate access, traffic capacity, drainage, fire access, parking, and operational capacity for the complete project. The updated material showed an approximately 43,000-square-foot ground-floor footprint with parking and landscaping, but staff described CUP-level plans as “pretty conceptual,” and staff and commissioners sought additional program and floor-area clarity before deciding. The Applicant’s attendance figures also shifted throughout testimony, creating unreconciled variation in the foundational number the parking calculation depends on.

“The site provides sufficient ingress and egress for vehicular access and can be developed in such a manner that undue traffic congestion or hazards will not be created. Off-street parking and access improvements by the applicant are expected to occur as well as approval from Bernalillo County Public Works through the County’s building permit process.”

“The site provides ingress and egress for vehicular access, but the development may require traffic improvements through conditions of approval. Off-street parking and access improvements by the applicant are expected to occur as well as approval from Bernalillo County Public Works through the County’s building permit process.” — The CPC NOD did not repeat the ZA’s express “no undue traffic congestion or hazards” language. Instead, it made a narrower ingress/egress statement and deferred the project-specific TIA and possible mitigation to building permit.

This is the principal defect. The County made this finding without a completed Traffic Impact Study or identified traffic-capacity analysis, while expressly deferring the study and potential improvements to later building-permit review. County traffic engineer Julie Luna testified that the ITE Manual is “essentially the gold standard,” that Public Works “requires a traffic study for this development,” and that no project-specific traffic data was available when the CPC acted. Luna also testified that Alameda “absolutely does have a congestion issue” and that a deferred TIA “isn’t mitigating the regional issues.”

The filed appeal argues that the Applicant’s stated attendance and vehicle figures warranted project-specific traffic analysis. The July 1 transcript confirms that Public Works required a TIA for this development, that the TIA would quantify site-generated trips, and that no project-specific TIA was available when the CPC acted. Luna also testified that Alameda “absolutely does have a congestion issue” and that a deferred TIA “isn’t mitigating the regional issues.”

The site plan shows only one main entrance gate and one main exit gate serving a facility with a stated capacity of 350-400 worshippers and up to 600 on peak days. No fire marshal review, emergency access plan, or turning-radius analysis appears anywhere in the record.

The County inverted the burden Section 24 assigns. The ordinance places the burden on the Applicant to prove no undue traffic hazards before approval — not on the Appeal Coalition to disprove them after. The County required no TIA from the Applicant, approved the CUP without one, and then forced the Appeal Coalition to search the public record for the only existing corridor study (the 2020 Murphy Express study, Exhibit 19) and enter it into the record himself. The the Appeal Coalition should never have been put in that position. The Murphy study is not in the record because the County did its job; it is there because the County did not.

The burden was printed on the front page of the Applicant’s own CUP application form. The application required the Applicant to prove that undue traffic congestion or hazards would not be created and to provide a written justification addressing that criterion. The Applicant responded “See attached,” but the attached narrative provided general statements rather than project-specific traffic evidence. Any one of the following would have satisfied the burden — a traffic scoping report, a TIA, a trip-generation calculation, a traffic count, a capacity analysis, a traffic-engineer report, or a comparable analysis demonstrating that the required traffic criterion was met. The Applicant provided none of these — not even one. The Applicant also wrote in the same application: “the expected traffic will be significant.”

The Bernalillo County Public Works Traffic Analysis Chapter requires a traffic review for “non-residential development abutting and/or accessing a County or state-maintained road,” “change in land use to a higher trip generation,” and “development that requires a change in access to an arterial or collector road.” This project meets all three criteria: it is a non-residential facility accessing 2nd Street (County-maintained) and Alameda Boulevard (NMDOT), it changes from vacant land to a regional religious facility, and the access points are on arterials. The traffic review begins with a traffic scoping report — a preliminary screening the Applicant can complete themselves — but even that was not done.

The appeal argues that a future TIA is not evidence that traffic impacts were quantified at the time of the CPC decision. The County responds through Public Works testimony that a completed TIA, mitigation agreement, and required improvements are prerequisites to building permit and opening. The precise appeal question is not whether a future TIA was required, but whether the CPC had the traffic evidence Section 24 requires at the time it made the CUP finding.

“Adjacent properties are of comparable uses, and the proposed use will have no adverse effect on the neighborhood or seriously conflict with the character of the area.”

“The area has a mix of uses and the proposed use will add to that mix.”

The NOD gives a conclusion but does not reconcile the scale of the proposal, nearby homes, rural setting, traffic, drainage, lighting, noise, and North Valley Area Plan concerns raised in the appeal. Finding 14 of the same CPC NOD admits the site is in the “Rural Area of the Comprehensive Plan.” The Rank I Comprehensive Plan’s Rural Area policy expressly favors “alternatives to urbanization” (Packet Pg. 508). The 1993 North Valley Area Plan directs the County to “limit access to Second Street, Alameda Boulevard, and Montaño Road” and retain residential zoning along these arterials. The Applicant testified the site was chosen to serve the greater Albuquerque metro and west-of-river community — a regional draw, not a local-serving use.

The appeal argues that the CPC did not make a policy-specific analysis of compatibility with the ABC Plan’s Rural Area policies and the North Valley Area Plan. The Rural Area location itself is not disputed; the dispute is whether a policy-by-policy compatibility analysis was completed.

“The applicant intends to provide off-street parking, landscaping, buffer landscaping and fencing in compliance with the requirements of the Comprehensive Zoning Ordinance of Bernalillo County... There will be a six-foot-tall wall along the north side.”

The NOD relies on what the Applicant “intends” to provide. The Applicant described six-foot walls and buffer function, and staff accepted updated plan material. However, the finding uses future-tense “intends to provide” rather than confirming actual compliance, and final program/floor-area questions remained. The appeal argues that an intention is not proof of completed compliance or a substitute for enforceable mitigation.

“The applicant also stated that times of the main Friday service could be moved to accommodate traffic patterns.”

This was an applicant statement, not a binding condition. The approval imposed no required service time, peak-hour limit, attendance limit, vehicle limit, or mechanism to enforce the claimed mitigation. The Applicant’s testimony about moving Friday service was offered as evidence that traffic impacts would be manageable — but nothing in the conditions makes it enforceable.

“Staff from public works stated that a Traffic Impact Study would be required at the building permit phase of the project. Road improvements to offset any impacts from the project could be required.”

County traffic engineer Julie Luna testified that Public Works has a building-permit traffic process: “Bernalillo County Public Works requires a traffic study for this development, and we require it upon building permit… We would not allow the building permit to be issued without a completed traffic impact assessment… We will not issue a building permit until the traffic study is approved and the applicant has agreed to those mitigations. We wouldn’t allow the building to open until all the mitigated constructed improvements, et cetera, were completed” (Exhibit 11, TR-204–205). Director Hamm acknowledged: “there’s some subjectivity built in here, though, because we don’t at this point in time have the traffic impact analysis” (Exhibit 11, TR-209).

The County does have a later enforcement mechanism. But that mechanism operates at the building-permit stage — after CUP approval. The precise appeal question is not whether a future TIA was required, but whether the CPC had the traffic evidence Section 24 requires at the time it made the CUP finding. Luna’s testimony confirms the County has a future process; Hamm’s testimony confirms that process had not yet produced any analysis at the time of the CUP decision. A future TIA cannot retroactively supply the substantial evidence Section 24 requires at the CUP decision point.

“Conditions of approval are necessary to ensure orderly development of the site, as well as the protection of the public health, safety, and general welfare in conformity with the intended purpose of the Zoning Ordinance.”

At the time this finding was adopted, the record contained no grading and drainage plan, no hydrology report, no noise-mitigation plan (other than no outdoor speakers), no fire safety or emergency access plan, and no stormwater pollution prevention plan. The the Appeal Coalition calculated that a 1-inch rain event generates approximately 70,000-85,000 gallons of runoff (corrected per Amendment and Errata), with no detention plan anywhere in the record. Every one of these safety analyses was deferred to the building-permit stage — a non-public process that cannot supply the substantial evidence Section 24 requires at the CUP decision point.

The same defect applies to traffic safety. Condition 9 defers the Traffic Impact Study to the building-permit stage — the same future-promise problem the brief identifies for drainage. The Board could not find that conditions protect public welfare when the single most consequential safety analysis — whether a 350-600 worshipper facility on a documented failing corridor generates undue traffic hazards — had not been conducted. A deferred TIA is an admission that traffic safety was not established at the time of approval, not evidence that it was.

The ZA’s NOD imposed THREE conditions (construction permits + building footprint, impervious surface coordination, and no outdoor amplified sound). The CPC carried forward all three and expanded to 15 conditions, but most of the additions merely restate existing code requirements (parking per Section 21, landscaping per Section 19, lighting per Light Pollution Ordinance, signage per Section 12, noise per Noise Ordinance). The conditions did not require a completed grading/drainage plan or project-specific traffic analysis before the CPC decision.

“The site is within the Rural Area of the Comprehensive Plan.”

This finding is factually correct — the site IS in the Rural Area. But the Commission used it as a neutral descriptor rather than applying the Rural Area policy. The Rank I Comprehensive Plan’s Rural Area policy favors “alternatives to urbanization” (Packet Pg. 508). A 60,000-SF high-volume regional draw facility is the definition of urban-scale encroachment into a designated rural area. The Commission identified the rural designation without analyzing whether a complex of this scale is compatible with it.

“This is an approval of a Church and incidental uses. A school is not allowed on the subject site.”

The Applicant’s representative testified on the record: “remove the school entirely from the project… There is no school. There is no preschool classes. There is no elementary school. There is no middle school. There is no high school” (Exhibit 11, TR-84). Staff confirmed the school “rose beyond what would be an incidental use” and treated it as removed (Exhibit 11, TR-81). The CPC then imposed this condition prohibiting the school.

The remaining issue is whether the revised scope was sufficiently definite and incorporated into the approval. The revised site plan (Exhibit 6, Sheet S-100, Packet Pg. 1121) still shows three rooms labeled “Daycare” and the parking table still calculates “School: 3 spaces per classroom x 16 = 48 spaces.” The Applicant’s Written Statement (Packet Pg. 1798) still describes “educational programs, daycare.” The filed appeal identifies no amended, stamped drawings that clearly remove every school/daycare feature; the revised Sheet S-100 and written materials remained the subject of the appeal’s scope-and-plan-consistency argument. The ZA’s NOD acknowledged that “future plans for the site may include a school” — the CPC then prohibited it by condition, but no stamped drawings reflect the removal.

“The size of the building shall be limited to a maximum of 60,000 square foot floor area, and a building footprint of 43,000.”

The hearing record supports an approximately 43,000-square-foot ground-floor footprint. The transcript shows Commissioner Nelson deriving the 60,000-square-foot figure by adding 17,000 square feet to the 43,000 footprint during deliberations, with Chair Gould confirming the distinction between building footprint and gross square footage. However, the transcript does not independently establish the 60,000-square-foot cap or show a traffic analysis or other study determining that this was the appropriate maximum size. Staff and commissioners still sought floor-area clarity during the hearing. The revised site plan (Exhibit 6, Sheet S-100, Packet Pg. 1121) does not independently confirm the 60,000-square-foot cap.

“The building shall meet all setback, separation, height, and area requirements of the A-1 zone... Height is limited to 26 feet without exception.”

The 26-foot A-1 zone height limit was stated on the record in multiple places. The staff report (Exhibit 4, Packet Pg. 922) states: “Building Height: The A-1 zone allows a building of up 26 feet in height.” The Applicant’s representative testified: “the building, I put at 26, but this will be smaller than 26, but 26 is the highest allowable by the zoning” (Exhibit 11, TR-90). Ms. Gould confirmed: “Height in the A-1 zone is limited to 26 feet” (Exhibit 11, TR-218). The CPC NOD (Exhibit 2, Condition 6) states: “Height is limited to 26 feet without exception.”

The 26-foot zoning limit itself is supported as an A-1 standard. The remaining issue is that no stamped architectural elevation drawings exist in the record to verify the proposed building’s actual height. The Applicant’s agent testified the first floor is 43,000 SF and the second floor is 15,000–17,000 SF, but no elevation drawings were submitted. The final architectural design had not been resolved at the CUP hearing stage.

“A Traffic Impact Study will be required at the building permit phase of the project. Road improvements may be required to offset any impacts from the project.”

Luna testified that Public Works requires a TIA before issuing a building permit: “We would not allow the building permit to be issued without a completed traffic impact assessment… We will not issue a building permit until the traffic study is approved and the applicant has agreed to those mitigations. We wouldn’t allow the building to open until all the mitigated constructed improvements, et cetera, were completed” (Exhibit 11, TR-204–205). The condition is a valid future building-permit safeguard.

However, the condition is appealable as insufficient support for the earlier CUP traffic finding. Hamm acknowledged “there’s some subjectivity built in here, though, because we don’t at this point in time have the traffic impact analysis” (Exhibit 11, TR-209). The appeal argues that a future TIA cannot retroactively supply the substantial evidence Section 24 requires at the CUP decision point. The County responds through Public Works testimony that a completed TIA, mitigation agreement, and required improvements are prerequisites to building permit and opening.