N.M. Code R. § 20.11.7.16 Hearings - Actions By Board - Written Order

• Library: New Mexico Administrative Code
• Edition: 2023
• Currency: Current through Register Vol. 34, No. 24, December 19, 2023
• Citation: N.M. Code R. § 20.11.7.16
• Year: 2023

A. Board variance hearings shall be public and shall be held at a public facility with public seating available.

B. Between the dates the petition for variance is filed and the conclusion of the variance procedure, no ex parte contact shall be made with a board member or the board's hearing officer. No board member or board hearing officer shall knowingly accept or participate in ex parte contact with any person regarding the merits of a pending proceeding unless the petitioner, the department and all other parties are present.

C. The board may designate a hearing officer to take evidence at the evidentiary phase of the variance hearing, and may designate a hearing officer to conduct the entire variance hearing. The board may direct the hearing officer to provide the board with proposed findings of fact, proposed conclusions of law and a recommended decision. A board member shall review the hearing officer's proposed findings, conclusions and recommended decision before the board member makes a final decision regarding the variance petition.

D. A record shall be made at each variance hearing. If the board directs a hearing officer to hold the evidence phase of a board variance hearing, and if any of the board members who will make a decision regarding the petition for variance are absent during the evidence phase of the hearing, then the absent board members shall be provided with an audio recording or transcription of the evidence phase, and the hearing record will be made available to the absent board members before the absent members make a decision regarding the variance.

E. In a board variance hearing, the petitioner has the burden of proof, which requires the petitioner to present a prima facie case. The petitioner shall present the petitioner's case first and must prove by a preponderance of evidence the facts the petitioner is relying on to justify the relief the petitioner seeks in the petition for variance. If the petitioner has not established a prima facie case, the board shall dismiss or deny the petition for variance, and no other person shall be required to present evidence in opposition to the petition. If the petitioner has established a prima facie case, then any person opposed to the relief sought in the petition may present evidence in opposition to the petition to show why the petition should not be granted.

F. A...