Truth or Consequences City Commission approves exceptions to zoning laws, despite sketchy due process

by Kathleen Sloan | July 9, 2020
5 min read
The brand new Planning and Zoning Commission and three-members-new City Commission carved out major exceptions to zoning law by approving two variances and a special-use permit, neither body going through the findings-of-fact process required by city code.

The P&Z heard three land-use applications a few weeks ago and the City Commission, without holding additional public hearings, made the final decision on them at the July 8 meeting.

The City has been without a P & Z for seven years, the board resigning primarily because the City wasn’t following the law or providing necessary documents, laid out in the group-resignation letter.

The newly-appointed P & Z, in preparatory sessions, were told by Zoning Administrator Traci Alvarez and City Manager Morris Madrid that they would provide them with all relevant laws and procedures.

In their first quasi-judicial session, the P&Z heard applications for a special-use permit and two variances that included summary replats.

The first application for a special-use permit was submitted by Anna Scattoloni and Corrinne Farmer, who own Galactic Digs Gallery and Other Treasures at 320 Broadway. They want to live and work in the building located in the commercial or downtown C-1 zone.

Alvarez and Madrid supplied the P&Z with information on C-1 permitted land uses, but nothing on the special-use-permit law, which requires seven findings of fact be heard and gone through.

The seven criteria are:
-Will the use increase street and right-of-way congestion?
-Will the use diminish safety from fire, panic and other dangers?
-Will the use diminish the health and general welfare of the public?
-Will the use degrade light and air for the properties in the vicinity and increase overcrowding and concentration of population?
-Will the use have adverse effects on transportation, water, sewer, schools, parks and other facilities or increase the effect of natural hazards?
-Will the use increase the unlawful use of structures, buildings and land?
-Will the use promote the use of or the waste of energy?

Madrid and City Attorney Jay Rubin urged the P&Z to add a condition before approving the permit. They wanted it to be reviewed after one year by Madrid and Alvarez. This would ensure a business was still operating—preventing the propagation of vacant store fronts with residences in the back—a problem created by the City Commission granting live-work special-use permits in years past.

The board rejected adding the condition. P&Z Chairperson Lilla Urban said it required much more discussion, especially concerning who would be doing the inspections and reviews. The P&Z granted the live-work permit with no conditions.

The City Commission, in making its final decision, was only supplied with the P&Z meeting minutes.

Without holding a second public hearing, thus denying due process to the applicants and proponents and opponents to the application, put a condition of yearly review on the special-use permit. Madrid and Alvarez were given the power to inspect and review the permit yearly.

After the meeting, Alvarez was asked if the special-use live-work permit goes with the property or if it dissolves if the applicant-owners sell the property. “I’m not sure,” said Alvarez.

The second application for a summary replat and variance for 408, 410 and 412 Main St. was approved by the City Commission with no discussion.

The P&Z had not been supplied with the law on variances, which also require seven findings of fact.

The seven criteria are:
-Shall not constitute a grant of special privilege inconsistent with the limitations on other properties in the area of notice;
-Shall not result in detriment to the public health, safety, or welfare, or be materially injurious to properties or improvements in the area of notice;
-Is justified because a physical hardship to the applicant is caused by existing size or shape of the lot;
-Upholds the spirit and intent of this Code, public safety and welfare will be secured and substantial justice done;
-Will not result in the City being caused to absorb costs over and above those typically associated with subdivision approval;
-Is not contrary to the requirements of state law;
-Will not cause negative impacts on adjoining properties, properties in the area of notice, or to the public wellbeing.

The P&Z were also not supplied with the law that states properties must be brought up to code before granting a summary replat. They were given the definitions of major and minor summary replats.

The P&Z weren’t even told that the applicant, Gerald Bush, owned 408, 410 and 412 Main St. They had trouble figuring out what the summary replat was attempting to achieve.

Owner Bush wants a walkway that traverses all three lots at the back of the buildings. If he sells 408, then there would be no back access to 410 and 412 Main St. The summary replat carves out a walkway to Foch Street for all three properties.

The P&Z had to be told why the variance was needed, since it was not clear in the documents provided. Eventually Alvarez explained the lot widths were narrower than allowed by current code. To bring the buildings and lots up to code, the buildings would have to be torn down.

Granting a variance to retain older buildings is a classic example of why variances are needed, the size of the lot creating a “physical hardship.” The City would want to make such an exception to the law time and again, not just for Bush, but for any owner, making it an equitable and reasonable. If findings of fact were made, as required by variance law, then the City would be on solid footing.

The third application’s variance request was not as reasonable. Again, the P&Z and City Commission were not provided with variance law and did not go through the findings of fact.

The applicant was the owner-representative Epifanio Buenaventa for 323 W. Riverside Dr. The property has a house and 11 trailers on the property. The summary replat divides the home from the trailers. The trailer section will be sold to Richard Epstein, who testified at the P&Z public hearing. ​

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Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

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