If the law is applied unequally, with favor to some and disfavor to others, a community’s governance becomes less democratic and its elected officials and city staff more autocratic.
The most recent case in point is the Truth or Consequences City Commission’s granting several favors to Sid Bryan, a prominent local realtor, spa and motel operator and real estate owner, whose two land-use applications were supposed to be put to public hearing Oct. 14.
The city commission once again superseded the planning and zoning commission last week, favoring this applicant with land-use rights not allowed under the city code.
Despite the city code requirement the P&Z thoroughly vet land-use issues before coming before the city commission, the city had done without a planning and zoning commission for seven years, only reinstituting it in March.
In 2013 the P&Z board resigned en masse because city staff would not supply documents and information required by the city code, according to the board’s resignation letter. In addition, the city commission ignored the city code in granting land-use rights, the letter said, making their law-abiding recommendations superfluous.
The first of Sid Bryan’s applications was to subdivide three lots into two lots at 660 Post St., which is at the corner of Post and Van Patten Street.
His second application was a variance request. If granted, he would not have to put in curb, gutter and sidewalk on the property.
The first indication Bryan was favored was the city commission’s ignoring due-process steps required by city code. Both applications were supposed to be heard by the P&Z first, as laid out in subdivision code 15-8 and variance code 11-5-5. The P&Z’s written recommendation and findings of fact were to be considered by the city commission before it went through the same hearing and fact-finding process.
City Zoning Administrator Traci Alvarez, at the Oct. 14 meeting, said the P&Z was supposed to hear the issues Sept. 8, but the resignation of one of the members left the board without a quorum. “We didn’t want to wait,” Alvarez said.
No waiting was required. The city commission appointed Chris Sisney to the P&Z on Sept. 9, giving the board a quorum and more than the 14-day window to advertise the required public hearing at the P&Z Oct. 5 meeting. The P&Z could have heard the applications and sent their recommendations to the city commission for the Oct. 14 meeting.
The second indication of Bryan’s favored treatment came during the city commission’s first public hearing on the subdivision of the three lots into two lots on Oct. 14.
The only opponent to the application was landowner Kim Audette, whose property is within 100 feet of 660 Post. She had been notified of the hearing as a “party” with a “substantial” interest in Bryan’s land use.
Audette said one of the two lots was smaller than the required 4,500 square feet.
Zoning Administrator Traci Alvarez testified Bryan’s subdivision met the requirement lots be at least 45 feet wide. City Commissioner Frances Luna asked if there was an additional requirement lots also be 4,500 square feet.
Under questioning, Alvarez erroneously informed the city commission that lots in an R-3, high-density residential zone, such as Bryan’s, could be 3,000 square feet for two-family homes and 2,000 square feet for apartment buildings, implying the house on the smaller lot could be used for either. The application process should have clarified the intended use of the house—whether it was for a single-family or two-family home, or to be divided into apartments—so the legality of the lot size could be determined.
In any of those three scenarios, the house lot is undersized, according to city code. City code 11-9-4 states that single-family-home lots must be 4,500 square feet. Two-family-home lots must have 3,000 square feet for each unit, requiring a 6,000 square-foot lot. Lots with apartment houses must have 2,000 square feet per unit; therefore, a three-apartment building would require a 6,000 square-foot lot.
City Manager Morris Madrid affirmed Alvarez’s incorrect information and argued that Bryan’s undersized lot was within the average range for lots in the area.
Bryan was given a third favor by not having to demonstrate he had a short-term residential rental permit. Bryan testified he had owned the house on “lot 1” for three years and was renting it out as “an Airbnb.” The permitting process, as stated in city code 7-401, requires all contiguous owners be notified and be apprised of the maximum number of occupants allowed.
Audette, a contiguous owner, said, in a later interview, she had received no notice the house was to be used as a short-term rental, a violation of the city code.
Audette was aware of people coming and going from Bryan’s house. During the public hearing she testified the additional residential unit “contributes to the housing glut,” which has led to empty houses up and down the street, increasing “blight and crime in an impoverished area.” Burglaries and drug dealing, she said, are also a problem.
If short-term rental permits are given without notice, adjacent owners will have no say in the shaping of their neighborhood’s character.
Bryan was given a fourth favor by not having to address utility access to the lots.
Bryan applied for “a subdivision of previously unsubdivided land,” which falls under city code 15-15 A (2), Alvarez’s documents state. According to that law, “All lots to be created must have direct, legal, unobstructed access to existing City water and wastewater lines.”
The documents Alvarez submitted show lots 1 and 2 have access to water, but only lot 1 has access to wastewater.
An Aug. 11 email from City Water and Wastewater Director Jesse Cole to Alvarez, included in the Oct. 14 commission meeting packet, states a mainline sewer extension would have to be installed under Post Street, making a 90-degree turn under Van Patten Street to provide service to lot 2.
The code states the “subdivider” must file “a letter of credit with the City to pay for connecting the lots to the City’s water and wastewater lines, or pays to the City the City’s fees for connecting the lots to the City’s water and wastewater lines.”
Bryan was allowed to subdivide without paying or promising to pay for sewer access. The city code states legal lots must have sewer service. The city commission legalized Bryan’s two lots. It is therefore not inconceivable that Bryan or a future buyer of lot 2 could demand the city provide sewer access, which would require extending the main line, an expense to be borne by the public purse, not Bryan.
The city commission granted Bryan a fifth favor by not subjecting his variance application to a public hearing. City Attorney Jay Rubin told the city commission they could skip the second hearing “because it is the same testimony” given in the first public hearing.
However, the testimony wouldn’t have been the same, since the first public hearing was on the lot subdivision and the second was to be on the variance exempting Bryan from putting in curb, gutter and sidewalk.
Variances are exceptions to the law and are supposed to be hard to get, as reflected in city code. The process is laid out in 11-5-5 and 15-8. They require the zoning administrator to make seven written findings of fact, accompanying his or her recommendation for or against approval given to the P&Z and city commission. The P&Z is to hold a public hearing and make its own findings of fact in writing, along with its recommendation to the city commission. Only then is the city commission to hold a public hearing on the variance application, arriving at its own findings of fact, in writing, before granting or denying a variance.
The city commission granted the variance, with no public hearing or discussion on the topic, their reasoning remaining opaque. This is the third variance given by the city commission exempting a landowner from putting in curb, gutter and sidewalk within the year. Variances were given for 3rd Street, Riverside Drive and now the corner of Post Street and Van Patten Street.
Alvarez’s reasoning has been that no curb, gutter and sidewalk exist nearby; therefore, it would be a “hardship” for the owners to be the first to put them in. But the variance laws make it clear “hardship” must relate to “exceptional topographic, soil or other surface or subsurface conditions.” The cost factor cannot be considered a “hardship.”
Since such exemptions have been given, the usual practice of having private landowners bear the cost of improving land values by gradually putting in curb, gutter and sidewalk will not happen. Such improvements will have to come from the public purse, the exemptions making the law unenforceable.
During the public hearing, the city commission—sitting as a quasi-judicial body—showed favor to Bryan and disfavor to Audette before unanimously approving Bryan’s applications with no findings of fact.
City Commissioner Randall Aragon praised Bryan, showing prejudice. Luna—the only city official to check Aragon—said it was “inappropriate” and asked him to save his personal comments until after the hearing.
Later, however, Luna intimidated the sole opponent at the hearing. She repeatedly asked Audette: “What are you doing to improve your property,” although it was Bryan’s property under consideration.
When Audette tried to explain she couldn’t keep up with the repair of bullet holes in her building because the police wouldn’t respond to her calls, Luna talked over her. Audette was allowed to say she had improved the landscaping and installed a new roof. However, her objections to Bryan’s requests were stifled.
Mayor Sandra Whitehead also repeatedly cut Audette’s testimony short, claiming it was irrelevant. Audette tried to point out inequities. Bryan’s property was being serviced by a new transformer, she noted, while claiming her transformer arced and posed a danger.
Not holding required public hearings, not making findings of fact and not adhering to city code—whether motivated by favoritism or expedience—can only happen under a city commission that does not question staff or become familiar with the laws it is adjudicating.
A governing board that rules by favor encourages the public to seek favors, in back rooms. It then becomes a shadow government that rubberstamps or denies favors in a kingly, not a fair and democratic manner.