Saturday, July 4, 2009

Postponement on recycling plant hearing denied

News-Bulletin Staff Writer; jdendinger@news-bulletin.com3/4

By Julia M. Dendinger A citizen's request to reschedule a public hearing item in front of the county commission next Wednesday was denied on a 3-1 vote at this week's county commission meeting.

In May, two Belen residents filed an appeal with the county after the planning and zoning commission's April approval of a site plan for a metal recycling plant south of Rio Communities in the Rio Grande Industrial Park.

When the appeal was filed, a public hearing before the county commission to hear the case on its merits was scheduled for June 10. However, due to personnel changes, and to avoid potential notification issues, the county opted to reschedule the public hearing for Wednesday, July 8.

In a letter that was hand delivered to the county administrative offices on June 9, appellant Joseph Rizzo says that since it was his understanding that the hearing was going to take place in June, he was prepared to present his case.

To meet family obligations later this summer in New York state, Rizzo says in his letter he purchased airline tickets to fly out of state on June 17, returning on Aug. 13.

In light of that, he asked the county commission to continue the hearing until some time after Aug. 15. "I know of no way that I can meet my responsibilities there and be here for that date and any change, even for a few days, made now would meet with great expense," Rizzo wrote in the letter.

County attorney David Pato said he had reviewed the pertinent provisions for appeals in the county's ordinance, and found that a hearing could be continued so that the commission could gather more information or for other good reasons.

Fellow appellant Alice Torwirt appeared before the commissioners Wednesday evening, making the same request. She said that while she could handle her parts of the appeal, she did not have the technical knowledge of the issues that Rizzo does.

"Dr. Joseph Rizzo was prepared for the hearing that was scheduled for June," Torwirt said. "He is now out of town due to a serious family issue and could not change those plans. His understanding of the impact of the chemicals, fumes and other technical aspects of this plant would be invaluable to this commission. This is an important issue and to not hear him would be a disservice to this commission."

Local attorney Larry Guggino representing American Iron and Metals, which will operate the metal recycling plant under the name Roadrunner Metal Recycling, said his client was asking that the hearing not be continued.

"I have some concerns about the appropriateness of the hearing by the county commission. The appeal seems to go to, 'is the I-3 appropriate and should this be there,'" he said. "If I may point out in Alba vs. People's Energy, the court of appeals ruled this was an I-3 zone. So my first question is, is it even appropriate to raise the issue raised by the appeal?"

Guggino went on, saying he felt there were two commissioners who should recuse themselves from any vote on the matter, commissioners Georgia Otero-Kirkham and Ron Gentry.

The attorney said Otero-Kirkham had the contract to do the title work on the sale of the property to American Iron, and Gentry, he testified about the matter before planning and zoning.

"He spoke as a citizen, but I think that now disqualifies him to vote on this issue. He also may own a great deal of property in the area," Guggino said. "And if the appellants live more than a mile away, commissioner Gentry may be the only property owner who lives close enough to have received notification."

Guggino also noted that Gentry visited the applicant's other recycling plants in Colorado, touring and photographing the facility.

"There is also the issue of standing. This is not a zone change," he said.

"We're here to try and get a site plan approved under your ordinance. These individuals do not live close enough to the property to have standing."

Commissioner Otero-Kirkham, who joined the meeting via telephone while out of town on vacation, said she didn't have a problem recusing herself from the vote.

"I haven't closed this transaction," she said. "I have done business with these same sellers on other properties that have not come before the commission."

After her statement, Commission Chair Pedro Rael said, "Well, that's one down."

Gentry said the second one was not going to be that easy.

"Planning and zoning sent a registered letter that notified me of the hearing, which gave me standing as a property owner and citizen," he said.

"As a lay-commission, it is very hard to separate that from the citizen and property owner."

The commissioner said he came before the planning and zoning board not as a proponent or opponent of the project.

"There is no financial gain for me. I am not going to benefit one way or another," Gentry said.

"I said it was the improper format for consideration, that it should be a conditional use since the use was not defined in county ordinances."

On his visit to the Colorado plants, Gentry pointed out that the owner of the company made a public announcement during the planning and zoning hearing that any visits from county residents would be welcome.

"He even offered to rent a bus to take people up there," he said. "If we are going to review an issue, we need to make ourselves aware of the issues, whether we like it or dislike it."

Gentry also suggested that if Guggino felt he and Otero-Kirkham had a conflict of interest, he should research Rael's client history from before he was a commissioner, as well as that of his former law partner.

"His former law partner represented the industrial park in action against the county, and I believe is still representing them," he said.

"If commissioner Otero-Kirkham is going to recuse herself because of prior financial gain and the perception of conflict of interest, I would ask how many people would perceive the chair as having a conflict of interest."

Gentry said it was his fear that using the argument of conflict of interest to force elected officials to recuse themselves from certain votes would eventually preclude any official from voting.

Rael responded that he has not represented anyone ever involved with the recycling plant or any properties in "that part of the county," Rael said.

"I don't benefit from my former partner, and I wish comments like these wouldn't be made."

The chairman continued, saying this was the second time the hearing on the appeal had been postponed. "They have no standing. That is not a philosophical debate," Rael said.

"It appears that the only person sitting here today with standing is Mr. Gentry. These businessmen need to make decisions and they need to go forward."

Rael made a motion to deny the continuance for the hearing, and commissioner Don Holliday seconded.

"We are holding up these businessmen," he said. "It is clear this is an I-3 property."

Commissioners Rael, Holliday and Dave Medina voted to deny the request for a continuance; Gentry voted against not to deny it.

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