{"MatterId":14674,"MatterGuid":"D9F753F9-0BD7-4A87-A6D2-9B84D69C8442","MatterLastModifiedUtc":"2026-05-21T13:40:34.173","MatterRowVersion":"AAAAAADLo80=","MatterFile":"AC-26-02","MatterName":null,"MatterTitle":"Dalila Solis (\"Applicant\") appeals the Zoning Hearing Examiner's decision to DENY a variance of 3 feet to install a 6-foot perimeter steel fence in the front yard for the property located at 237 Wyoming Blvd NE, zoned MX-M - VA-2025-00162","MatterTypeId":2,"MatterTypeName":"Appeal","MatterStatusId":9,"MatterStatusName":"Withdrawn","MatterBodyId":1,"MatterBodyName":"City Council","MatterIntroDate":"2026-02-02T00:00:00","MatterAgendaDate":null,"MatterPassedDate":"2026-04-20T00:00:00","MatterEnactmentDate":null,"MatterEnactmentNumber":null,"MatterRequester":null,"MatterNotes":null,"MatterVersion":"1","MatterCost":null,"MatterText1":null,"MatterText2":null,"MatterText3":null,"MatterText4":null,"MatterText5":null,"MatterDate1":null,"MatterDate2":null,"MatterEXText1":"CC 4/20/26 (vh)\r\n[see full write-up in the 4/20/26 memo]\r\n\r\n{FULL HEARING}\r\n\r\nApplicant\tDalila Solis\r\nRequest Being Appealed Variance of 3 feet to install a 6-foot tall perimeter steel fence \r\nSite 237 Wyoming Blvd NE, Albuquerque, NM 87123, zoned MX-M (Council District 6)\r\nAppellants Dalila Solis\r\nZHE Decision Deny variance\r\nLUHO Recommendation Uphold the ZHE’s findings and decision to deny the variance;\r\nDeny the appeal\r\n\r\nI. INTRODUCTION: \r\n\r\nA. This appeal concerns a proposed variance of 3 feet to allow a 6-feet tall perimeter steel fence at the property located at 237 Wyoming Blvd NE, Albuquerque, NM 87123, zoned MX-M. The issue in this appeal is whether the ZHE’s denial of the variance should be upheld.\r\n\r\nB. The ZHE denied the variance, finding that: (1) there are no special circumstances applicable to the Subject Property that are not self-imposed and that do not apply generally to other property in the same zone and vicinity such as size, shape, topography, location, surroundings, or physical characteristics created by natural forces or government action for which no compensation was paid; and (2) because all prongs of the variance test needed to satisfied and there were no special circumstances present, the variance test fails without needing to examine the other prongs of the variance test. \r\n\r\nC. The Applicant, Dalila Solis, appealed the ZHE’s denial of the variance. The Appellant argued generally that the property has had to endure “increasing acts of vandalism” that resulted in lost business. The Applicant emphasized that a 6-foot fence would be necessary to protect building infrastructure and to ensure that the business would be able to continue without future disruption. \r\n\r\nD. The Council referred this appeal to its Land Use Hearing Officer (“LUHO”). The LUHO recommended that the City Council deny the appeal and uphold the ZHE’s decision to deny the variance because the ZHE’s findings that Applicant/Appellant failed to satisfy IDO, §6-6(O)(3)(a) were supported by substantial factual evidence in the record. The LUHO further concluded that the Applicant/ Appellant had not met their burden to show that the ZHE erred in application of the IDO to the facts. In fact, the Appellant failed to rebut or show that the ZHE erred not only in her request for appeal, but also by failing to appear for the hearing before the LUHO despite evidence of notice of the hearing on the record.\r\n\r\nE. At the City Council meeting on April 6, 2026, the City Council voted 7-2 to reject the LUHO recommendation and findings and hold a full hearing on this matter. See sections IV, V, and VI below for the standard of review, hearing procedure, and Council options.\r\n\r\nII. BACKGROUND: \r\n\r\nA. The site of the variance request is zoned MX-M (mixed-use medium intensity). \r\n\r\nIDO Zone Atlas\r\n \r\n[R. 012].\r\n\r\nThe subject property houses a restaurant, El Viva Mexico Restaurant, operated by Appellant. Appellant alleged that this property has had to endure increasing acts of vandalism that have grown in severity. [R. 007]. The Appellant stated in her application and in her request for an appeal that the restaurant has experienced two break-ins and suffered damage to their AC units. Id., and see [R.021]. \r\n\r\nTo prevent future intrusions onto their property, Appellant applied for a 3-foot variance for a 6-foot fence at the front of the property. [R.011]. Under the IDO, the maximum front yard wall height is limited to 3 feet in any mixed use zone, including the MX-M zone district. See IDO, Table 5-7-1. However, if the front yard fence is set back 10 feet from the lot line, the front yard fence can be constructed to a height of 5 feet without a variance. IDO, § 5-7(D)(3)(c). \r\n\r\nB. On December 16, 2025, the ZHE held a public quasi-judicial hearing on Appellants’ application. [R.047 – 050]. At the ZHE hearing, the Appellant rejected the possibility of setting the fence 10 feet back and constructing either a 5 foot fence or applying for a variance for one foot to make the 10 foot set-back fence 6 feet tall. [R.049]. Instead, Appellant pursued a the current contemplated variance. Id.\r\n\r\nOn December 31, 2025, the ZHE issued his decision denying the application, noting that the Applicant had failed to meet their evidentiary burden of proof for the variance under IDO, §6-6(O)(3)(a)(1). [R.004-006].\r\n\r\nC. On appeal (in her appeal application), Appellant simply repeated the same facts that gave rise to her application, noting the “increasing acts of vandalism,” loss of business, and the presence of other fences along Wyoming Blvd. NE. [R.007]. Appellant noted that they do not hope to set a precedence. Id.\r\n\r\nD. On March 11, 2026, the LUHO held a hearing on this matter. Appellant did not attend. The LUHO delayed the hearing for fifteen minutes to allow Council Staff opportunity to reach out to the Appellant. After fifteen minutes, with no response or attendance by Appellant, the appeal hearing was held in absentia. \r\n\r\nIII. LUHO FINDINGS & RECOMMENDATION: \r\n\r\nA. The LUHO found that the ZHE’s decision was supported by substantial evidence on the record and that the Appellant failed to rebut or show that the ZHE erred either in the facts or in application of the IDO. The LUHO further found that the Appellant, by failing to appear to the LUHO hearing, had submitted no new evidence to support the requirements that they were required to prove under the IDO, section 6-6-(O)(3)(a) (the variance criteria). Further, the LUHO found that the Appellants front yard fence, without the setback, would violate setback requirements and height limitations in the IDO. \r\n\r\nB. Variance Test. A variance is “an exception from the strict, literal application of the IDO’s dimensional standards.” IDO, § 14-16-7. While variances allow for IDO flexibility, the LUHO was clear: “applicants must still qualify for it by satisfying the five prong criteria.” See IDO, §6-6(O)(3)(a). The LUHO emphasized that these criteria are “conjunctive;” all criteria must be met in order for a variance to be granted. In his discussion of this application, the LUHO emphasized that the variance criteria of the IDO is not subjective in nature; “the five prong test for a variance requires objective evidence to support a variance.” The first prong in this variance test requires “special circumstances” applicable to the lot which do not generally apply to other similarly situated lots in the area.\r\n\r\nC. The ZHE’s decision is supported by the record and the IDO. Following this framework, the LUHO summarized the findings of the ZHE. The LUHO noted and agreed with the ZHE conclusion that the Appellant had failed to demonstrate crime and vandalism as conditions that are “not unique to the subject property but instead are suffered generally by the entire vicinity.” Accordingly, the ZHE found no need to evaluate whether the Appellant could satisfy the other four prongs. The LUHO agreed with this approach but also noted that the Appellant failed to make any attempt to show how the proposed fence would meet all five prongs of the variance criteria of the IDO. As such, the LUHO found that the ZHE did not err in denying the application.\r\n\r\nThe LUHO noted the Appellant’s argument that because there are other similar fences that are 6 feet or higher along other business properties along Wyoming, the ZHE should have granted her variance application. However, the LUHO rejected Appellant’s argument that this was substantial evidence to support granting the variance. The LUHO took administrative notice that many of the businesses along Wyoming predate the IDO’s enactment in 2018 and that many taller fences were approved prior to then. Therefore, without sufficient context or evidence to support Appellant’s argument, “Appellant’s argument cannot withstand scrutiny and must fail.”\r\n\r\n4/6/26 (vh)\r\n\r\n{ACCEPT OR REJECT}\r\n\r\nApplicant\tDalila Solis\r\nRequest Being Appealed\tVariance of 3 feet to install a 6-foot tall perimeter steel fence \r\nSite\t237 Wyoming Blvd NE, Albuquerque, NM 87123, zoned MX-M (Council District 7)\r\nAppellants\tDalila Solis\r\nZHE Decision\tDeny variance\r\nLUHO Recommendation\tUphold the ZHE’s findings and decision to deny the variance;\r\nDeny the appeal\r\n\r\nI.\tINTRODUCTION: \r\n\r\nA. This appeal concerns a proposed variance of 3 feet to allow a 6-feet tall perimeter steel fence at the property located at 237 Wyoming Blvd NE, Albuquerque, NM 87123, zoned MX-M. The issue in this appeal is whether the ZHE’s denial of the variance should be upheld.\r\n\r\nB. The ZHE denied the variance, finding that: (1) there are no special circumstances applicable to the Subject Property that are not self-imposed and that do not apply generally to other property in the same zone and vicinity such as size, shape, topography, location, surroundings, or physical characteristics created by natural forces or government action for which no compensation was paid; and (2) because all prongs of the variance test needed to satisfied and there were no special circumstances present, the variance test fails without needing to examine the other prongs of the variance test. \r\n\r\nC. The Appellant, Dalila Solis, appealed the ZHE’s denial of the variance. The Appellant argued generally that the property has had to endure “increasing acts of vandalism” that resulted in lost business. The Appellant emphasized that a 6-foot fence would be necessary to protect building infrastructure and to ensure that the business would be able to continue without future disruption. \r\n\r\nD. The Council referred this appeal to its Land Use Hearing Officer (“LUHO”). The LUHO recommended that the City Council deny the appeal and uphold the ZHE’s decision to deny the variance because the ZHE’s findings that Appellant failed to satisfy IDO, §6-6(O)(3)(a) were supported by substantial factual evidence in the record. The LUHO further concluded that the Appellant had not met their burden to show that the ZHE erred in application of the IDO to the facts. In fact, the Appellant failed to rebut or show that the ZHE erred not only in her request for appeal, but also by failing to appear for the hearing before the LUHO despite evidence of notice of the hearing on the record.\r\n\r\nII.\tBACKGROUND: \r\n\r\nA. The site of the variance request is zoned MX-M (mixed-use medium intensity). \r\n\r\nIDO Zone Atlas\r\n\r\n[See map on write-up]\r\n \r\n[R. 012]. \r\n\tThe subject property houses a restaurant, El Viva Mexico Restaurant, operated by Appellant. Appellant alleged that this property has had to endure increasing acts of vandalism that have grown in severity. [R. 007]. The Appellant stated in her application and in her request for an appeal that the restaurant has experienced two break-ins and suffered damage to their AC units. Id., and see [R.021]. \r\n\r\n\tTo prevent future intrusions onto their property, Appellant applied for a 3-foot variance for a 6-foot fence at the front of the property. [R.011]. Under the IDO, the maximum front yard wall height is limited to 3 feet in any mixed use zone, including the MX-M zone district. See IDO, Table 5-7-1. However, if the front yard fence is set back 10 feet from the lot line, the front yard fence can be constructed to a height of 5 feet without a variance. IDO, § 5-7(D)(3)(c). \r\n\r\nB. On December 16, 2025, the ZHE held a public quasi-judicial hearing on Appellants’ application. [R.047 – 050]. At the ZHE hearing, the Appellant rejected the possibility of setting the fence 10 feet back and constructing either a 5 foot fence or applying for a variance for one foot to make the 10 foot set-back fence 6 feet tall. [R.049]. Instead, Appellant pursued a the current contemplated variance. Id.\r\n\r\nOn December 31, 2025, the ZHE issued his decision denying the application, noting that the Applicant had failed to meet their evidentiary burden of proof for the variance under IDO, §6-6(O)(3)(a)(1). [R.004-006].\r\n\r\n\tC. On appeal (in her appeal application), Appellant simply repeated the same facts that gave rise to her application, noting the “increasing acts of vandalism,” loss of business, and the presence of other fences along Wyoming Blvd. NE. [R.007]. Appellant noted that they do not hope to set a precedence. Id.\r\n\r\n\tD. On March 11, 2026, the LUHO held a hearing on this matter. Appellant did not attend. The LUHO delayed the hearing for fifteen minutes to allow Council Staff opportunity to reach out to the Appellant. After fifteen minutes, with no response or attendance by Appellant, the appeal hearing was held in absentia. \r\n\r\nIII.\tLUHO FINDINGS & RECOMMENDATION: \r\n\r\nA. The LUHO found that the ZHE’s decision was supported by substantial evidence on the record and that the Appellant failed to rebut or show that the ZHE erred either in the facts or in application of the IDO. The LUHO further found that the Appellant, by failing to appear to the LUHO hearing, had submitted no new evidence to support the requirements that they were required to prove under the IDO, section 6-6-(O)(3)(a) (the variance criteria). Further, the LUHO found that the Appellants front yard fence, without the setback, would violate setback requirements and height limitations in the IDO. \r\n\r\nB. Variance Test. A variance is “an exception from the strict, literal application of the IDO’s dimensional standards.” IDO, § 14-16-7. While variances allow for IDO flexibility, the LUHO was clear: “applicants must still qualify for it by satisfying the five prong criteria.” See IDO, §6-6(O)(3)(a). The LUHO emphasized that these criteria are “conjunctive;” all criteria must be met in order for a variance to be granted. In his discussion of this application, the LUHO emphasized that the variance criteria of the IDO is not subjective in nature; “the five prong test for a variance requires objective evidence to support a variance.” The first prong in this variance test requires “special circumstances” applicable to the lot which do not generally apply to other similarly situated lots in the area.\r\n\r\nC. The ZHE’s decision is supported by the record and the IDO. Following this framework, the LUHO summarized the findings of the ZHE. The LUHO noted and agreed with the ZHE conclusion that the Appellant had failed to demonstrate crime and vandalism as conditions that are “not unique to the subject property but instead are suffered generally by the entire vicinity.” Accordingly, the ZHE found no need to evaluate whether the Appellant could satisfy the other four prongs. The LUHO agreed with this approach but also noted that the Appellant failed to make any attempt to show how the proposed fence would meet all five prongs of the variance criteria of the IDO. As such, the LUHO found that the ZHE did not err in denying the application.\r\n\r\nThe LUHO noted the Appellant’s argument that because there are other similar fences that are 6 feet or higher along other business properties along Wyoming, the ZHE should have granted her variance application. However, the LUHO rejected Appellant’s argument that this was substantial evidence to support granting the variance. The LUHO took administrative notice that many of the businesses along Wyoming predate the IDO’s enactment in 2018 and that many taller fences were approved prior to then. Therefore, without sufficient context or evidence to support Appellant’s argument, “Appellant’s argument cannot withstand scrutiny and must fail.”\r\n\r\nD. The LUHO recommends that the City Council deny the appeal and uphold ZHE’s denial of the variance. The LUHO has prepared nine proposed findings in support of this recommendation. (See LUHO Proposed Disposition, pages 6-7).  \r\n\t\r\nIV.\tSTANDARD OF REVIEW\r\n\r\nA. \tIDO, § 14-16-6-6(O)(3)(a) Review and Decision Criteria – General:\r\n\t\r\nAn application for a Variance – ZHE shall be approved if it meets all of the following criteria:\r\n\r\n1.\tThere are special circumstances applicable to a single lot that are not self-\r\nimposed and that do not apply generally to other property in the same zone district and vicinity, including but not limited to size, shape, topography, location, surroundings, physical characteristics, natural forces, or by government actions for which no compensation was paid. Such special circumstances of the lot either create an extraordinary hardship in the form of a substantial and unjustified limitation on the reasonable use or economic return on the property, or practical difficulties result from strict compliance with the minimum standards.\r\n2.\tThe Variance will not be materially contrary to the public safety, health, or \r\nwelfare.\r\n3.\tThe Variance does not cause significant material adverse impacts on \r\nsurrounding properties or infrastructure improvements in the vicinity.\r\n4.\tThe Variance will not materially undermine the intent and purpose of this IDO, \r\nthe applicable zone district, or any applicable Overlay Zone.\r\n5.\tThe Variance approved is the minimum necessary to avoid extraordinary \r\nhardship or practical difficulties.\r\n\r\nB. \tIDO, § 14-16-6-4(U)(4) Criteria for Decision: \r\n\r\nThe criteria for review of an appeal shall be whether the decision-making body or the prior appeal body made 1 of the following mistakes.\r\n\r\na.\tThe decision-making body or the prior appeal body acted fraudulently, arbitrarily, \r\nor capriciously.\r\nb. The decision being appealed is not supported by substantial evidence.\r\nc. The decision-making body or the prior appeal body erred in applying the \r\nrequirements of the IDO (or a plan, policy, or regulation referenced in the review and decision-making criteria for the type of decision being appealed). \r\n\r\nV.\tCOUNCIL OPTIONS: \r\n\r\n1. \tAccept LUHO Recommendation & Findings – The Council may accept the LUHO recommendation and findings, in which case, the appeal will be denied, the decisions of the ZHE will be upheld, and variance request will be denied;\r\n\r\n2. \tAccept LUHO Recommendations & Adopt Different Findings – The Council may accept only the LUHO recommendation and only some or none of the LUHO’s findings, in which case the appeal will be denied, the decision of the ZHE will be upheld, and the variance request will be denied, pursuant to amendments to the LUHO findings, or new findings adopted now or at a later meeting, based only on the material already in the record; or\r\n\r\n3. \tReject LUHO Recommendation – The Council may reject the LUHO recommendation, in which case, this matter would be scheduled for a full hearing at the next City Council Meeting.","MatterEXText2":"Victor Hall","MatterEXText3":null,"MatterEXText4":null,"MatterEXText5":null,"MatterEXText6":null,"MatterEXText7":null,"MatterEXText8":null,"MatterEXText9":null,"MatterEXText10":null,"MatterEXText11":null,"MatterEXDate1":null,"MatterEXDate2":null,"MatterEXDate3":null,"MatterEXDate4":null,"MatterEXDate5":null,"MatterEXDate6":null,"MatterEXDate7":null,"MatterEXDate8":null,"MatterEXDate9":null,"MatterEXDate10":null,"MatterAgiloftId":0,"MatterReference":null,"MatterRestrictViewViaWeb":false,"MatterReports":[]}