Neighbors sue county over business on North Mesa Road


Fourteen county residents have filed suit against the Valencia County commissioners, asking them to reverse a zoning decision they made in April.

On a 3-2 vote, commissioners granted Belen-area businessman Edward Chavez a certificate of nonconforming use. Chavez owns the property at 1 Eddie Lane off North Mesa Road and operates a business that stores and sells fill dirt and gravel products at that location.

His neighbors say Chavez should not be operating the commercial enterprise on the rural residential zoned property.

That issue was the subject of a two year district court battle that ended last fall with the judge remanding the matter back to the county, instructing Chavez to go to the county and acquire the correct authorization to operate his business.

In January, the county received a non-conformance application from Chavez. That type of application is reviewed by planning and zoning administration, and after the review, it was denied.

Chavez filed an appeal to the decision and at the April 18 meeting, the county commissioners granted the non-conforming use certificate to Chavez.

Commissioners Ron Gentry, Lawrence Romero and Chairman Donald Holliday voted in favor of granting the non-conforming use, and commissioners Mary Andersen and Georgia Otero-Kirkham voted against.

At that meeting, Andersen commented that after speaking with the county attorneys, "The only conclusion I've come to is there are some legal ramifications attached, no matter what we do."

And those legal ramifications are the plaintiffs asking the courts to either reverse the county decision and enter a judgement that the commission's decision was contrary to law or remand it back to the county, once again, for what the filing calls "proceedings that conform to the law and the decision of this court."

The complaint also seeks "any additional relief that the court deems appropriate."

The appellants in this case are Earl and Darla Gleason, Richard and Evelyn Brower, Mary Lou and Kenneth Harper, Herbert and Rosella Natzke, Fernando Chavez, Joan Oreolt, David and Jackie Gonzales, and Kenneth and Carolyn Castillo Ashford.

They all live and own property in the vicinity of 1 Eddie Lane.

Their attorney, Anthony Williams, argues that the county's decision effectively granted a zone change to Chavez, by "purportedly giving him grandfather rights for the operation of a sand and gravel business in the middle of a rural residential neighborhood."

That decision departs from the ordinary concept of grandfather rights, which is the "protection of lawful activity made illegal by subsequent legislation," Williams writes in the brief.

He continues, arguing that the county has allowed the "march of time and its intentionally ineffective zoning enforcement to render illegal conduct legal, conferring arbitrary amnesty upon Mr. Chavez, thus protecting the undisputedly illegal initiation of his sand and gravel business."

Williams makes the argument that at the time Chavez started his business at 1 Eddie Lane, the property was already zoned rural residential and thus a commercial operation was automatically precluded from legally existing.

There are instances where an activity or use is legally existing on a piece of property, but through no initiation of the property owner, zoning or other legislation is changed, therefore rendering the use illegal.

In most of these instances, the now illegal use is "grandfathered" in, allowing it to continue but not increase in scope. Usually once the grandfathered use ceases for a given period of time, the use of the property is then limited to the current allowable use.

The county allows a nonconforming use to exist if the activity has been ongoing for 10 years prior and was a lawful use at the time.

Chavez puts forth the argument that he was in operation selling gravel and sand more than 10 years prior to his 2012 application for nonconforming use.

However, Williams and the county planning and zoning administration contend that 10 years started after the most recent zoning ordinance changes in 2004.

In the 2011 court ruling, Judge George Eichwald found that Chavez was not operating his business at the residentially zoned property in April of 2001.

Chavez filed an application for verification of nonconforming use in 2008 as well. It too was denied based on a review of aerial photographs and the administrative determination that the 10-year look back period extends 10 years before the date of the ordinance, not the application.

That same reasoning was used to deny Chavez's 2012 application, which the commissioners overturned on appeal.

In the statement of appellant issues, Williams writes the "grant of amnesty that protects Chavez's illegal activity is unlawful" for several reasons.

He argues the county misinterpreted and misapplied the long-standing administrative interpretation of its zoning ordinances, "arbitrarily and capriciously granting zoning violation amnesty to one individual."

Williams also contends the commissioners went beyond their discretionary powers, and failed to give adequate notice to interested parties in its procedure to consider the zone change.

The brief says the protection of Chavez's illegal activity constitutes "illegal spot zoning" and the commission's decision is not supported by substantial evidence and is based on Chavez's "unlawful collateral attack" on the findings of the recent district court decision.

The October court decision found that Chavez was operating his sand and gravel operation "contrary to applicable zoning ordinances" of the county and ordered him to file for "appropriate zoning variance/zone change" within 120 days in order to continue operating.

Chavez filed a request for verification of legal nonconformance with the county in late January, more than 90 days into the ordered 120.

The filing by the appellants also contains a 5 1/2 page, Byzantine time line that tracks events from 1986, when several of the appellants purchased their property in the vicinity of 1 Eddie Lane, up through the Oct. 2011 district court decision to remand the mater back to the county.

The time line notes such events as the county's 1988 adoption of a zoning ordinance, grandfathering in lawful uses and the 1998 zoning of the area west of Mesa Road, where the property in question sits, to rural residential.

The time line shows that Chavez obtained a tax identification number for "Chavez Lazer Leveling" in 1988 and began operation of that business that same year.

It also states that his 2008 application for verification of nonconforming use claims that he had not engaged in a nonconforming use on Sept. 15, 1994.

In his 2012 application, Chavez claims that his nonconforming use existed prior to Sept. 15, 1994, 10 years prior to the most recent zoning ordinance adoption in 2004, the time line indicates.

However, Williams points out that Chavez did not purchase the property until Nov. 7, 1994.

According to the time line, Chavez began operating a sand and gravel business in 1995 at a different location other than the one referenced in his 2012 nonconforming use application for 1 Eddie Lane.

In 1998, Chavez began operating a laser leveling business at 1 Eddie Lane and was issued a business license by the county for trucking and laser leveling, with no mention of sand and gravel. The zoning ordinance was adopted in November 1999 and the area was zoned rural residential.

The time line cites Earl Gleason's 2010 affidavit in which Gleason says Chavez began storing sand and gravel products on a 10-acre alfalfa field "about 10 years ago" on other property south of 1 Eddie Lane — property that was not part of his 2012 nonconforming use application, Williams argues.

During a deposition for the district court case, Gleason says he purchased gravel from Chavez in 2001. However, Williams indicates in the time line that it is unclear whether Gleason's purchase came from the 1 Eddie Lane location or another one.

When and where Chavez was operating is further disputed by photographs provided by Darla Gleason taken in the spring of 2001 that show no sand and gravel operation at 1 Eddie Lane, according Williams' time line.

And Rio Grande Landscaping's purchase of gravel at a site referred to "this location" in the county's finding of facts and conclusion of law for the granting of the nonconforming use certificate, seems to indicate a location other than 1 Eddie Lane, Williams argues in the time line.

The time line says Chavez begins operating a sand and gravel business at 1 Eddie Lane in 2004 and Eichwald specifically found that Chavez was not operating on his residentially zoned property in April 2001.

Over the next five years, the time line indicates the then county manager issued written permission for Chavez to continue operating; Chavez makes an application for verification of nonconforming use, which is denied; Chavez is given a notice of zoning violation; a county administrator offers the written opinion that the operation is grandfathered; the county dismisses the criminal citation for the zoning violation and agrees to let Chavez continue operating in the area zoned residential, and a county attorney issues a letter limiting the scope of Chavez's operation but allowing it to continue.

In 2009, the Gleasons and several of their neighbors file suit in district court. Eichwald determines Chavez is operating illegally in October and punts the matter back to the county.

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