County responds to appeal regarding non-conformance

........................................................................................................................................................................................

Valencia County has responded to an appeal made in district court by 14 county residents who feel the county commissioners' decision to grant a local business a certificate of legal non-conformance was incorrect.

On a 3-2 vote in April, commissioners granted Belen-area businessman Edward Chavez the certificate.

Chavez owns the property at 1 Eddie Lane off North Mesa Road north of Belen, and operates a business that stores and sells fill dirt and gravel products at that location.

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

Kevin Brown, of Albuquerque-based Brown Law Firm, is representing the county on the appeal. In his response, Brown writes that Chavez applied for verification of legal non-conformance, not a zone change or variance as the appellants contend.

While the appellants argue that the county's ordinance promotes "the retirement of non-conforming uses, not the creation of new ones," Brown argues that the ordinance does allow non-conforming uses and structures to be "continued, altered, restored or replaced subject to the satisfaction of the review criteria …"

Brown also writes that, despite the appellants' argument, Chavez has not established the legality and existence of the non-conforming use prior to the enactment of the zoning ordinance, according to the commission's findings of fact and conclusions of law, he did.

According to that document and testimony given at the public hearing, "Mr. Chavez did own the property … from 1988, although he operated his business in its various forms on different tracts of the property."

Brown writes that Chavez presented testimony that while his business was not consistently used for laser leveling, the sale of field dirt was always part of his business, which later included the sale of gravel products.

"As such, Mr. Chavez's business, including gravel and dirt sales, did 'in fact exist prior to the effective date of a zoning ordinance,' and constituted more than 'mere intentions or plans' at the time the zoning ordinance became effective," Brown wrote.

The response notes that the appellants appear to argue that the commission interpreted its non-conforming use ordinance in such a way as to grant amnesty for unlawful conduct.

Brown argues that recognition of legal non-conforming use does not constitute a zone change or variance, "as appellants appear to suggest. Under New Mexico law, 'a non-conforming use is a use that lawfully existed prior to the enactment of a zoning ordinance prohibiting such a use.'"

The case law cited by the appellants does not contemplate a change in zoning, Brown writes, but rather verifies that a person's use which existed prior to the enactment of a zoning ordinance which prohibited such use may lawfully continue.

Brown also argues the county was not "granting amnesty upon evidence of illegal use," as suggested by the appellants, but rather the county examined the nature and extent of the use for the 10 year period prior to the adoption of the ordinance, whether the use was in existence for at least 10 years prior to the date of application for verification of legal non-conformance and whether the use had continued uninterrupted for at least 10 years prior to the date of the application.

"Based upon the factors specified in the ordinance and the evidence presented to the commission, it concluded Mr. Chavez was entitled to the certificate of non-conformity," Brown wrote.

He continues, saying the commission has not granted amnesty, but rather has "acknowledged the existence of Mr. Chavez's use of his property for commercial purposes prior to the adoption of the ordinance."

And Brown writes that the argument that the commission's decision constitutes "spot zoning" is incorrect.

"…appellants have not demonstrated, nor does the record support, that the commission decision modified the zoning of the area in which the property in question is located," Brown wrote.

Responding on behalf of Chavez, who was named an interested party in the appeal, Belen attorney Norm McDonald notes that the recently concluded district court case between Chavez and 12 of the 14 current appellants, was not a zoning dispute.

"The lawsuit filed against … Chavez was one where plaintiffs … asked the court to determine that Mr. Chavez's business activity on his property constituted either a public or private nuisance and that the court should grant a permanent injunction prohibiting him from continuing the business activity," McDonald writes.

The court's conclusion of law ruled that there was insufficient evidence that Chavez's business operation constitutes a nuisance, McDonald continues, and the plaintiff's request for permanent injunction was denied.

McDonald writes that the appellant's summary of proceedings "is misleading because it continually references the county's decision as a 'zone change.'"

He says Chavez's property has always been zoned Rural Residential 2 and remains so.

"The county commission's decision simply acknowledge that Mr. Chavez has been in business at his present location for more than 10 years prior to making the request for verification of legal non-conformance," McDonald wrote. "The zoning has never been changed."

McDonald also calls the appellants' time line of events in their appeal "disputed and incomplete," noting that Chavez applied for the verification in January 2012, not April 2011 as the time line indicated.

The response by McDonald also points out that the county began issuing a business license to Chavez at 1 Eddie Lane in 1998 and have been issued annually to the same location every year since.

Speaking to an application allegedly filed by Chavez with the county in 2008, McDonald points out that the application was unsigned, and that the prior year, 2007, the county agreed that Chavez could continue operating his business at the current location, upon downsizing to the western-most terrace.

McDonald also argues that during the commission hearing on Chavez's request for verification, it was established that there were at least four other commercial businesses in very close proximity to Chavez's business, and which are also situated in a RR-2 zone.

In late October, Brown filed a motion to dismiss, citing a 2011 settlement between the county and some of the plaintiffs. With the exception of Kenneth Ashford and Carolyn Castillo-Ashford, all of the appellants entered into a settlement agreement for a total of $6,000.

Brown makes the argument that the settlement prevents the appellants from seeking any form of "damages or equitable relief against the county in this regard."

The appellants have also filed a motion to have Brown disqualified as the legal representative for the county in this issue.

Since the Brown Law Firm negotiated the settlement, and since they raised that as a reason for dismissal, Williams argues the firm would have to, and would not be allowed to, act as both representatives and witnesses in the current case.


-- Email the author at jdendinger@news-bulletin.com.