Saturday, December 15, 2007

Court-ordered land split approved

Julia M. Dendinger News-Bulletin Staff Writer; jdendinger@news-bulletin.com

The matter of a court-ordered land split of 80 acres and subsequent zone change request to the county commission was finally resolved by a 3-2 vote in favor of granting the zone change.

The lands of the estate of the Lupita V. Jaramillo were divided among 25 heirs through a district court order finalized in August. Because the land was divided by shares among the heirs in accordance with the established living trust, many of the 50 parcels awarded ranged in size from 1 to 1.5 acres.

However, the properties are within a Rural Residential-2 zone, which stipulates that parcels of land shall not be smaller than two acres. Since the resulting parcels were smaller than the two acres, the trust requested that the county change the zone to RR-1 or one-acre minimum.

In the final analysis, concerns were raised that while technically the matter was considered a family land split, what was actually being created was an uncontrolled subdivision, one without the oversight of county ordinances and regulations.

During a Nov. 14 public hearing on the matter of the zone change, it was suggested that the restrictive covenants filed by the trust with the county could be a stipulation of granting the zone change and therefore making it enforceable by the county.

The covenants spelled out the size and styles of site-built homes allowed on the lots as well as the specifications for any roads built.

After the matter was heard at the public hearing, it was scheduled for action at the Nov. 26 commission meeting. However, the family asked that the matter be tabled until the Dec. 5 meeting, which the commission agreed to do.

Threatened litigation

When the matter came up for action on the Dec. 5 agenda, Commission Chair Pedro Rael announced that he had some questions for the county's attorney.

"We have a letter from the attorney for the trustees which basically states that if the zone change is not granted, they will appeal the matter to district court," he said. The attorney for the trustees is James Lawrence Sanchez of Belen.

Rael went on to say that because there was pending or threatened litigation, and under the umbrella of attorney-client privilege, he would like the matter discussed in a closed, executive session in order to consult with counsel.

County attorney Cynthia Wimberly said she felt the commission could enter into executive session under an exception to the state's Open Meetings Act, which allows for the deliberation of adjudicatorial matters.

In a telephone interview following the meeting, Wimberly said the commissioners could deliberate on how they would rule in a quasi-judicial matter such as the requested zone change in closed session.

"They have never done so in the past, but they can hold the deliberations in executive session," she said. "Obviously, they have to vote in the open meeting."

After Rael suggested the commission meet in a closed session to discuss the matter, audience member Mike Wood asked if the onlookers could hold an executive session. Rael replied that they were welcome to do so, as long as it did not disrupt the business of the meeting.

When Wood began to question the commissioners, Rael asked that a court security deputy be brought into the meeting since in past meetings Wood had addressed the commission from the floor without recognition and specifically had addressed comments to Rael.

A deputy was brought into the commission chambers and sat in the audience.

Commissioner Ron Gentry said that since the record was closed at the end of the November public hearing, no more information or testimony could be given on the matter.

"When you asked to table it last time, you said we could be depriving the other parties of their due process," he said. "To open this up for legal opinions doesn't give the other side a chance to rebut the letter." When Gentry questioned the reason for not voting on the matter at the commission's Nov. 21 meeting, Rael said that since no one representing the petitioners was present at that meeting it should be tabled.

Gentry went on to say he didn't put much merit in a threatening letter. "We heard the information and should make a decision on that," he said, "not the threat of a lawsuit."

Rael argued that he felt the commission almost had to go into closed session. "We have a letter from our attorney in response to the letter from their attorney," he said. "I have questions about that letter for our attorney. We are not required to disclose communication between our attorney and the commission."

Gentry said that he was not saying that the commission did not have the right to go into executive session, but it did have to adhere to due process. "To have the letter after the fact that says if we don't grant the zone change they will sue, I don't know what that does to due process," he said. "We haven't voted yet."

Rael said that in the instances where there is possible litigation, matters could be discussed in closed session. "It may have merit or not," he said.

Gentry replied that in the three years he has served as commissioner he had not seen the commission's process drawn out in this way. "After the record is closed, to take it into executive session," he said. "I have never seen it postponed just so someone could be in the audience."

The chairman responded, saying he and Gentry were "ships passing in the night. We are not communicating." Gentry responded that if Rael wanted to take the matter into the back room, then go ahead.

When Commissioner Georgia Otero-Kirkham made a motion to go into closed session to discuss the matter, Wimberly suggested the commissioners have the executive meeting after the other business matters on the agenda. "There are people here for other matters," she said.

The commission voted 3-2 to take the matter into executive session after the other action items on the agenda had been handled. Rael, Otero-Kirkham and David Medina voted in favor of the motion with Gentry and Lynette Pinkston voting against.

There were grumblings from the audience that the matter should be discussed in open session. Wood criticized the commission's decision, and Rael asked the deputy to escort him from the room.

Gentry objected, saying there was no reason for a "panic attack." Wood remained in the chamber.

Conflicts of interest?

After the other action items on the agenda were voted on, the commissioners went into an executive session to discuss the threatened legal action made by the trustees' attorney.

When they returned to open session, Pinkston said she felt two commissioners should recuse themselves from the matter. "They should have disclosed any perceived perception of a conflict of interest at the public hearing," she said.

Otero-Kirkham said she was one of those people. She said a woman related to the Jaramillos was married to her father's uncle. "Neither are alive today, and I will not see any financial gain and have no interest in the property," she said.

Rael said he was the other person referred to by Commissioner Pinkston. "I used to represent some of the Jaramillo family on the partition action in the case," he said. "That was almost two years ago we dissolved that partnership, he took the case with him."

The "him" Rael was referring to is his former law partner, James Lawrence Sanchez.

Rael then read parts of a letter he received from the disciplinary board of the state Supreme Court in response to a county resident's concern that Rael had a conflict of interest when he made a motion and then voted in favor of affirming the I-3 zoning in the Rio Grande Industrial Park in October of this year.

"The disciplinary board wrote that my law partner represents the industrial park," he said. "They said that I act only as a county commissioner and don't deliver legal services to the board (of county commissioners) and didn't see that as a conflict."

Rael said that based upon the disciplinary board's response to that allegation of conflict of interest, he felt that he also had no conflict of interest in the Jaramillo matter and would be voting.

"I have no financial gain," he said. "I have not represented them for over a year before I was elected as a commissioner. I do not even live in that district and received no votes from the Jaramillos."

Gentry responded, saying there were different standards for elected officials. "There are different standards, a different code of conduct," he said. "I have been an elected official off and on for 30 years. I have never been afraid of voting for things for my constituency."

The commissioner went on to say that Rael had him recuse himself numerous times from votes concerning matters in his district. "That is a double standard," Gentry said. "You are the lawyer who built the case and are now sitting in judgment. How can you make the final judgment and it not be a conflict of interest?

"That standard has kept me from representing my constituents. If you say it's not a standard, then good for me. I will vote for all the matters in my district."

Gentry then went on at length detailing the reservations the county's own planning staff had about allowing the zone change, finally stating that he would base his vote on that information.

Rael said he felt compelled to respond to Gentry's comments, to which Gentry objected, asking that Rael "refrain from giving your legal opinion on my comments."

Rael began to counter, stating that it was an I-3 zone in the industrial park when Gentry interrupted, saying that was not part of the current proceedings.

The chairman said he followed a court order and that Gentry had recused himself "once or twice," not numerous times as Gentry had stated.

Gentry said he had explained why he recused himself in the past and did not need Rael to explain the matter. "It is time to get the professionalism of the commission back in order and get on with business," he said.

Rael argued that he wanted the truth out there and that the public would hold Gentry accountable.

Gentry said he would move for adjournment if things didn't move on, to which Rael responded that Gentry's assertion that Rael had asked him to recuse himself numerous times was incorrect and a misstatement of the facts to members of the public.

"He hasn't misstated the facts to this member of the public," Wood said from the audience. Rael again called for his removal, and the deputy escorted Wood from the commission chambers.

Considering the covenants

The commission returned to the topic of the zone change, and Rael made the motion that not only the covenants be a condition of the zone change but they be permanently binding.

The covenants allow for the combination of lots but prohibit further splits. Rael said if the covenants were made permanent and unchanged from the time of adoption, then the lots over one acre could not be made smaller even though the zoning allowed for one-acre lots.

But Gentry had concerns because there is a clause in the covenants that lets them be changed if 75 percent of the landowners are in agreement. "Is it your stipulation that they can't amend the covenants later?" he asked Rael.

Rael said the stipulation was the attachment of the covenants to the zone change and that the covenants be fully enforced each time new development was made on any of the properties.

The commissioners debated back and forth on the exact wording and meaning of the motion with the stipulation. "All of the covenants will be enforced in each and every case, and the covenants can't be changed," Rael said. "They will be enforced as is. They are part and parcel of the zone change."

Gentry felt that by making that stipulation and not removing the amendment clause from the covenants, the commission was creating a Catch-22 for the property owners.

"We are saying that they can't change the covenants, but we are also saying that all of the covenants will be enforced, every time, and that includes the amendment clause," he said.

Rael called for the vote, stating that he believed the motion was stated clearly.

The commission voted 3-2 in favor of the zone change. Rael, Otero-Kirkham and Dave Medina voted yes, with Gentry and Pinkston casting the two nay votes.

Public still concerned

The day following the meeting, county resident Evelyn Bailey contacted the News-Bulletin with concerns that Rael's statement in the meeting that he had not represented the Jaramillos for almost two years was inaccurate.

"If you look at court records, he did not withdraw as attorney of record for the trust until June 12, 2007," she said. "That's quite a bit less that almost two years."

Court records do show that a filing for withdrawal and designation of counsel was made on June 12, 2007, stating that "Pedro G. Rael withdraws as attorney for the foregoing Lupita Jaramillo Trust and James L. Sanchez enters his appearance for all purposes hereafter."

The records also show that the last action in the case filed by Rael was a notice of deposition on July 31, 2006.

In a phone interview, Rael said to the best of his recollection he stopped representing on or shortly after the date the notice of deposition was filed. "I remember doing that," he said. "I'm not sure if I was still representing them at the time. I may have done that as a favor to James (Sanchez)."

Rael went on to say that the notification of withdrawal in this case was mostly a formality. "If I withdraw from a case, I have to let the lawyer for the opposing side know that, so that I am not responsible for any notices they send out," he said. "In this case, James and I were partners and we were the only attorneys on the case."

Bailey attended the Dec. 12 public hearing and again expressed her concern about the possibility that both Rael and Otero-Kirkham had a conflict of interest regarding the land split.

"Commissioner Otero-Kirkham stated both publicly and privately that she had family ties and would abstain," she said. "She has found a legal loophole to excuse the inexcusable." Otero-Kirkham was not at the public hearing. Rael said she had an out-of-town obligation that could not be rescheduled.

Bailey went on to say that Rael did not withdraw as the Jaramillo attorney until June of this year and that she felt he sidestepped the question. "He pushed the vote through; that is an abuse of power and position," she said.

As Bailey reached the end of her comments, Rael interrupted to tell her the time allotted for her comments was up.

"I think the matter was adequately addressed at the last meeting," he said. The commission tries to limit public comments to two minutes per person, especially during lengthy meetings.

Bailey was the only person who asked to address the commission that afternoon. There was only one item for discussion on the agenda.

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