Bosque Farms couple asks court to reverse recycling center decision


A Bosque Farms couple is asking a district court judge to reverse the village council's decision to grant a conditional use permit to a local recycling company.

Alternatively, Charles Fegan and Nancy Bjorkland-Fegan are asking the court to remand the conditional use permit application for Wise Recycling back to the village's planning and zoning commission for an analysis of the economic effects of the conditional use on adjoining properties.

In May 2012, the village Planning and Zoning Commission approved a conditional use permit to allow the company to build a recycling center on the 1200 block of Bosque Farms Boulevard. The property is in a Commercial-1 zone.

The Fegans, who have lived adjacent to the location for more than 20 years, appealed the commission's decision to the council hoping it would overturn the P&Z ruling.

After an appeal hearing in late June, the village council unanimously upheld the commission's decision.

The Fegan's attorney, Jeff Albright, filed a notice of appeal in district court on July 30, with the statement of appellate issues following 3 1/2 months later.

Albright, with Albuquerque firm Lewis and Roca, said the amount of time between the notice and actual filing was strictly a procedural issue.

"Bosque Farms is required to certify the record to the court, and there were some things like numbering pages and exhibits that needed to be done," Albright said. "We worked with Bosque Farms and their attorney, David Chavez, to get everything corrected and to make sure it was certified to the court properly."

According to the appeal, the council failed to adequately consider and address the economic effects of the conditional use on adjoining properties; the applicant, Bosque Farms Equities, failed to submit a complete application at least 20 days before the planning and zoning commission meeting, and to require adequate public notice of the conditional use permit application and the P&Z meeting.

Albright writes that the basis for the Fegans' first complaint is the fourth condition a conditional use must meet — whether the proposed use will add additional noise, glare, odor, or what the economic effects are on the adjoining properties.

The council's finding that there is no credible evidence or expert testimony of adverse economic effect on adjoining property owners is arbitrary and capricious, Albright wrote, not supported by substantial evidence, outside the scope of the council's authority and not in accordance with applicable law.

"The possibility that a scrap metal collection and recycling facility could have an adverse economic effect on an adjoining residential property is obvious," the compliant reads. "Instead of requiring the applicant to analyze and address this potential effect as required by the zoning ordinance, the P&Z commission placed the burden of proving adverse economic effects on the appellants and the village council affirmed this approach. The failure of the village to comply with its own ordinance renders its decision void."

On the issue of timely submittal of the application, the appeal contends that while the applicant's completed application had to be received by April 17 in order to be heard at the May 7 P&Z meeting, it was not, therefore rendering the council's decision void.

According to the appeal, the village informed the applicant on April 18 that the application was not complete, and received the missing information on April 19.

The Fegans' attorney argues that the public notification of the conditional use permit should have complied with state statutes that require notice of a change in zoning be sent via certified mail, return receipt requested, to property owners in an area one block or less from the subject property.

Albright also argues that a sign indicating that Wise Recycling was seeking a permit to build a "scrap metal collection facility" on the property would have been more appropriate and effective in notifying the public of the intended use.

The appeal says the actual sign stated "Architectural Contractors, Inc." applied for a conditional use permit.

"This deception was likely intentional on the part of the applicant but it was the P&Z commission's responsibility to require adequate public notice of the action it was considering," Albright wrote.

In the response filed by village attorney David Chavez on Dec. 13, Chavez argues that the Fegans did not raise certain objections until the filing of their statement of issues.

Chavez contends that the courts can only hear their appeal on three issues — the commission's alleged failure to consider economic effect on adjoining properties, the applicant's alleged failure to obtain driveway approval from the New Mexico Department of Transportation and the commission's alleged violation of the state's Open Meetings Act.

The allegation that the planning and zoning hearing was not scheduled at least 20 days from the filing of the completed conditional use permit application and the allegation that the council failed to provide adequate public notice were not raised before the council, Chavez contends, therefore the Fegans waived them.

He argues that the district court lacks jurisdiction over those two issues, since they were not properly raised during the initial appeal of the planning and zoning commission's decision before the village council.

The sole issue before the court, Chavez says, is P&Z's alleged failure to consider the economic impact of the permit on the Fegans' adjoining property.

Chavez argues that the planning and zoning commission's decision was based on substantial evidence, not arbitrary and capricious.

"P&Z made a specific finding that contrary to appellants' contentions that 'there is no credible evidence or expert testimony of adverse economic effect on adjoining property owners,' which would render the provisions and arrangements unsatisfactory," the response reads. "All of appellants' concerns enumerated in the statement of issues were specifically addressed by conditional requirements upon the applicant to P&Z's satisfaction."

Chavez goes on to say that according to Charles Fegans' own testimony, the only remaining issue to be worked out at the May 7, 2012, meeting was the specifics regarding the fencing.

The village's reply asks that the court affirm its decision to uphold P&Z's granting of the conditional use permit, and to dismiss the additional issues raised by the Fegans in their statement of appellate issues on lack on jurisdiction.

Albright replied to the village's response on Jan. 10, arguing that there are numerous exceptions to the general rule that an appellate court will not consider an argument raised for the first time on appeal, some of which apply in this case.

"… these exceptions are generally intended to promote equitable outcomes in situations where a rigid application of the rule would thwart justice," Albright's response reads.

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