By Roger Lanse

Gilbert Helton, Grant County's Emergency Management Officer, came before the town council at its Tuesday, Jan. 12, 2021, meeting seeking to obtain a variance denied previously by the town for a carport he constructed on June 4, 2020, on his driveway at 1307 North Loop that violated the town's 20-foot front setback ordinance. Helton claimed he visited or sent letters to 46 of his neighboring property owners after the construction was completed and received 'overwhelming' support. In fact, many, Helton said, 'were very surprised' to know a 20-foot setback was required.

Helton admitted he had not obtained either a town or state permit before constructing the carport. He blamed the COVID pandemic for causing confusion and making it impossible to determine just what he needed to do to rectify the situation after he was told by Silver City Community Development Department Director Jamie Embick and Code Enforcement Officer Manny Jaure that he needed to take the carport down.

Helton stated the current land use code requires a written and signed complaint from a citizen, objecting to a perceived nuisance, to assure the complaint is genuine in determining whether to approve or deny a variance – not just word of mouth.

Embick stated that because she lives right across the street and saw the carport being constructed, she has a duty under the 2010 Town of Silver City Land Use Code to act to enforce it.

Helton suggested that Embick, who has authority in cases such as this, and lives across the street from the carport in question, should recuse herself from this issue, as he believes "her personal ideas have influenced her determination of not allowing me to have a variance, when a very similar one was approved in the same meeting (Planning and Zoning Commission) that mine was disapproved."

Helton also pointed out that many carports in town were built closer than 20-feet to the sidewalk and questioned why he should he be treated differently from those property owners. He stated a recent construction at another address, referring to the above paragraph, that impinged on the 20-foot setback, was given a variance while his carport was not.

Embick stated that structures built before the current land use code are exempt from the new rules, explaining why some uses don't meet existing code. She said not all parts of town have a 20-foot setback as some have less and some actually have no setback, depending on the land use code current at the time of construction.

In answer to a question by District 4 Councilor Guadalupe Cano, Embick stated one reason for granting a variance to one and not to another was whether the application for a variance was due to the action of the applicant or not, suggesting if the application for a variance was due to something outside the applicant's control, the town would be more apt to grant a variance. In the case of Helton's application, Embick said, the variance requested was due to the action of the applicant.

Helton complained that driveways are not subject to the town's 20-foot setback rule so why should a carport built on a driveway be any different.

In answer to a question from District 1 Councilor Cynthia Bettison, Embick said that driveways are not subject to the 20-foot setback rule as they are not considered 'structures,' just as mailboxes and fences are not considered structures.

In answer to a similar question from District 2 Councilor Lynda Aiman-Smith, Embick further explained that driveways are not subject to the setback because one has to use the driveway to get to the street.

Embick told council that one neighbor, who objected to the carport, was concerned about walls to the structure being built at a future date, which would block her view when backing out of her driveway. Helton stated he did not plan to 'ever' build walls to the carport. Another respondent by letter supported Helton being able to keep his carport, Embick said.

Helton responded to a question by Bettison saying he ordered the carport last year before the pandemic hit, had it constructed in June 2020, and did not apply for a variance until September 2020.

When the dust settled, council, 3-2, voted to approve the variance for Helton's carport within the 20-foot setback with Districts 1 and 2 Councilors, Cynthia Bettison and Lynda Aiman-Smith voting nay, Districts 3 and 4 Councilors, Jose Ray, Jr. and Guadalupe Cano voting aye, and Mayor Ken Ladner breaking the tie by voting aye.

Ladner nominated Glenda Troutman-Rivera to the Planning and Zoning Commission, however Ray Jr. and Cano objected to the nomination. Troutman-Rivera secured the appointment by a split vote with Ladner providing the tie-breaker

Council disapproved a bid by DeMent Electric of Silver City for Visitor Center Pedestrian and Trailhead Improvements. Town Manager Alex Brown told council this was the third time the project has gone out to bid and this bidder would have been approved had they completed the proper paperwork for the federally funded project and been on a state prequalified contractor's list. Brown stated that he has considered giving help to local contractors during pre-bid meetings as a "ton of paperwork is required for these federally funded projects and our smaller contractors have a hard time with that." He said he will get together with the Southwest New Mexico Council of Governments to see if training sessions can be held to help the local smaller contractors prepare proper bids.