Zone change appealed to court

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A controversial zone change in Tomé that county commissioners granted in August is being appealed in district court.

The fight over three acres on N.M. 47 began in late 2011, when Patti and Bernardo Garcia asked for a conditional use on the C-1 zoned parcel to establish an auto repair and body work shop.

After outcry from the public, the request was denied by the commissioners last February.

In July, the owners requested a zone change to community commercial, C-2, in order to open a landscaping materials company. County zoning ordinances require the higher zoning for landscaping and nursery businesses.

At the county's Aug. 15 meeting, the zone change was granted on a 4-1 vote, with Commissioner Donald Holliday casting the no vote.

"I don't think this matter is over with," Holliday commented. "It will be back in our lap sooner or later."

The change to C-2 was restricted to only allow for a landscaping materials company. If the Garcias, or any subsequent owner, used the property for any other allowable C-2 use, the acreage would automatically revert back to C-1 with no need for action by the county.

Local attorney Amavalise Jaramillo filed a statement of appellate issues in October on behalf of several land owners in the vicinity of the Garcias property.

The plaintiffs in the case are Steve Davis, James Fischer, Michael Maestas, Aaron Romero, Aaron Romero as trustee for Joseph I. Romero, and Chris Crespin.

According to the filing, Crespin and Bernardo Garcia purchased the property at 2975 N.M. 47 from county planning and zoning Commissioner Scott Edeal on a real estate contract and provided $28,205 on Nov. 2, 2011.

Jaramillo writes that at a June 25 planning and zoning hearing, the conditional zone change was given a unanimous recommendation for approval. According to the agenda and minutes from the June P&Z meeting, the meeting took place on June 27.

At that hearing, Edeal recused himself from the final vote and did not participate in the discussion of the zone change request.

The county commissioners heard the request at their Aug. 8 meeting, and former Commissioner Georgia Otero-Kirkham was absent, Jaramillo says in the appeal.

Jaramillo makes the argument that the commissioners acted "arbitrarily and capriciously" because they refused to consider evidence that Crespin had an interest in the property, and he would not be bound by the safeguards put in place by the commissioners that would prevent the property from being used for C-2 purposes other than a nursery.

Jaramillo also contends that the commission failed to assure that, if the property reverted back to Edeal, he too would be bound by the special conditions because he did not sign the findings of facts and conclusion of law.

The attorney also claims that Holliday conducted the meeting in an "arbitrary and capricious nature" because he refused to hear comments from the public about the character of the applicants, argued with members of the public making comments contrary to the zone change and argued points in favor of applicants to the public.

In the statement of appellate issues, Jaramillo writes that the commissioner's decision was not supported by the law because not only did commissioners Otero-Kirkham and Edeal have a financial interest in the subject project, Edeal influenced the planning and zoning process by being present despite recusing himself, and Otero-Kirkham voted despite being absent from the Aug. 8 commission meeting.

Jaramillo also claims that the zone change needed a super majority vote to pass, which could not have occurred without Otero-Kirkham's vote.

He closes the filing with, "As a matter of law, Commissioner (Otero-Kirkham's) procedural impropriety and the commission's cumulative bias violated petitioners' due process rights and should be reversed."

County attorney Dave Pato responded to the claim, asking the court to uphold the commissioner's decision.

The restrictive covenant on the property was filed and recorded with the county clerk on Aug. 29, according to Pato's response.

Since he was not the applicant for the zone change and because of the recorded covenant, Pato writes that Edeal's signature was neither necessary nor appropriate on the findings of fact and conclusion of law

Pato continues, addressing the claim that Crespin would not be bound by the same restrictions. He writes that if Crespin came into possession of the land, since the covenant filed by Edeal and Garcia runs with the land, he would also be bound by the restrictions.

Pato points out that, despite appellants' complaints regarding the manner in which Holliday conducted the public hearing and "their attacks" upon Holliday, he was the only commissioner who voted in favor of the appellants' position and against the conditional zone change.

Pato continues, saying the appellants further fail to articulate how Edeal's presence at the planning and zoning hearing ultimately impacted the decision reached by the commissioners, the decision at issue.

And Otero-Kirkham's absence from the Aug. 8 public hearing and the fact that her employer closed on the sale of the property did not require her to recuse herself from the final vote, Pato argues.

Otero-Kirkham states on the record that she reviewed the record prior to making her decision and appellants have failed to make an allegation or show that the commissioner failed to review the record before making her decision, Pato wrote, concluding that the matter was without merit.

On the matter of the closing on the property being done by Stewart Title, Pato writes that Otero-Kirkham is but an employee of the company, and had not received any direct pecuniary benefit from the transaction.

Pato continued, saying the commissioner had no part in the transaction.

At the Aug. 15 meeting, Otero-Kirkham addressed the issue directly, saying she was not the owner of the company and was paid the same salary by Stewart Title, regardless of the number of closings she performed.

Pato addressed the appellants' contention that the zone change needed a super-majority for the zone change, saying that even if Otero-Kirkham had not voted, the final vote would have been 3-1, or 75 percent, in favor of the zone change.

State statute requires a two-thirds, or 66 percent, super-majority approval in some instances, Pato wrote.

The attorney's response also addressed several issues in which he says the appellants' statement of appellate issues fails "in several respects."

First, Pato says the appellants failed to file a certificate with the district court that arrangements had been made with the county for the preparation of the record of proceedings when the notice of appeal was filed.

He also says the appellants didn't wait for the filing of the record before they filed their statement of appellate issues and attached exhibits that were not part of the record on appeal.

Pato moved to strike "all such materials."

He concluded the response by saying that the appellants have failed to provide a statement of the precise relief sought or to otherwise state the precise relief sought with any particularity.

"The reference to reversal in the statement of appellate issues would appear to refer to Commissioner Otero-Kirkham's alleged procedural impropriety, whatever that may be, and the commission's alleged bias, and not to the board's conditional approval of the zone change," Pato wrote.

Tony Williams, the attorney for the Garcias and Edeal Investments, filed a response to the appeal, flatly stating, "This appeal is without merit."

Throughout his response, Williams echoes many of the same arguments put forth in the county's response to the appeal.

Williams argues that the appellants did not order the record proper and submitted the statement of issues "without a single citation to the record."

"With no record proper to cite, petitioners attached exhibits, which are outside the record and should be stricken," Williams wrote.

Williams also argues that Edeal had a right to attend meetings pertaining to the property, did not vote at the planning and zoning hearing and did not attend the hearing in front of the county commissioners.

He says Otero-Kirkham's vote was proper, saying that no authority whatsoever has been cited that a panel member in any tribunal must hear every aspect of a cast in order to participate.

"There is nothing in the record showing that Commissioner (Otero-Kirkham) or her employer Stewart Title had any interest or involvement in any zoning issue before the county," Williams wrote.

The attorney argues that Crespin's claim that he was not subject to the restrictive covenant filed by the Garcias and Edeal, and therefore the county was in error, was "nonsensical."

"If Crespin thinks the county erred, he can remedy this instantly by acknowledging that he is bound by the covenant," Williams says in his reply.

Williams also notes that while Crespin did make the down payment on the property, Bernardo Garcia gave the commission a warranty deed and assignment, recorded Feb. 7, 2012, transferring Crespin's purchaser's interest in the real estate contract for the purchase of the property to Garcia.

The question of ownership is currently the subject of another district court case between Crespin and the Garcias.

Regarding Holliday's conduct of the hearing, Williams argues that any allegations of his prejudice are unfounded and "belied by his vote."


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