​Truth or Consequences City Commission hands out variance, punching hole in law

by Kathleen Sloan | March 4, 2020
6 min read
​At their last meeting for two and maybe three members, depending on how the election turns out, Truth or Consequences City Commissioners handled another zoning issue, as it has done for seven years, without review, consideration and deliberation by a Planning and Zoning Commission. 

Although the City Commission appointed a Planning and Zoning Commission the same day, Feb. 26, it went ahead with a ruling on land-use issues, with little information, instead of making it the new P&Z’s first order of business. City Manager Morris Madrid urged the City Commission to proceed, despite public protest the P&Z needed to hear the item first. The City Commission ignored the public and took Madrid’s advice. 

City Attorney Jay Rubin also assured the City Commission they didn’t need a P&Z to rule first. There are several City Code ordinances stating the P&Z must rule first, giving the City Commission written recommendations based on “findings of fact.” 

According to city code, the City Commission rehears the land-use issue, also basing final decisions on “findings of fact.” 

There are seven findings of fact laid out in City Code to be addressed for the record, which were never brought up during the Jan. 26 public hearing. 

The City Commission held a hearing on a plat amendment and variance request for 112 W. 3rd Ave., claiming it was using the “Battershell” method to conduct it. 

But the Battershell, and any public hearing, requires sufficient information be given to the City Commission and public so it may participate in land-use decisions. 

The City packet didn’t include the property owners’ application or name, information about what plat amendment was being requested or what variance was being requested, making it impossible for the public to be informed adequately to participate. 

The Battershell method also requires that members of the public who are sworn in as opponents or proponents of the application, be allowed to question the applicant and city staff. That was not allowed, giving the City Commission inordinate powers in deciding community land use. 

During the hearing, the applicants and owners of 112 W. 3rd St. were revealed to be Dan Steele and Tony Gonzales. They own six lots they wanted to divide into two lots, so they can sell one of the lots. That was the plat-amendment request. 

Steele and Gonzales also asked to be excused from having to put in sidewalks, curb and gutter, which was the variance request.  

Rubin asked if neighbors had been notified and if any had objected to the application. City Zoning Administrator Traci Burnette said all had been notified and there were no objections. Since the notification letter was not in the public packet, it is unknown if neighbors were given sufficient information to approve or object to the application. Burnette put together the inadequate public packet.

Two members of the public, Ron Fenn and Jack Noel, were opponents to the application. Their objections were the same—the application should first be heard by the P&Z. 

Rubin said, “I’m not worried about a legal challenge because the only people with standing are the neighbors.” 

City Commissioner George Szigeti acknowledged and then ignored opposition. “I understand Noel and Fenn’s comments,” he said. “If there were any controversy at all on this, I would push it back [so the P&Z could hear it].” 

The City Commission then unanimously approved both the plat amendment and variance. 

Variances have been challenged and reversed in New Mexico case law. In Gould v. Santa Fe County, 2001, the court found the zoning authority did not follow the local code for granting a variance based on findings of fact. There were 10 criteria for granting a variance in Santa Fe County, all 10 to be passed, failure of one disqualifying the application.  

The City Code, similarly, has seven criteria an applicant must pass before being granted a variance. 
       1. Will light and air to the adjacent property be impaired? 
       2. Will traffic be increased? 
       3. Will the danger of fire be increased or public safety decreased?
       4. Will it deter the orderly, phased growth and development of the
            community?
       5. Will it unreasonably impair established property values in the
            community?
       6. Will it impair public health, safety and the general welfare of
            the community?                                                                                      
       7. Will it constitute a spot zone and therefore adversely affect
            adjacent property values?

It could be argued that allowing one owner or developer to not put in curb, gutter and sidewalks deters the orderly, phased growth and development of the community, impairs property values, and is spot zoning. Spot zoning is applying zoning to a specific parcel that is different from the norm. 

Any subsequent owner or developer could cite the 112 W. 3rd Ave. variance when asked to put in curb, gutter and sidewalk. The city is supposed to apply the law equally to all. It’s not fair to make subsequent applicants pay the expense. 

In Mechem v. City of Santa Fe, Mechem won, citing prior variance cases in which the city did not hold others to the higher standard to which he was being held. 

The City Commission didn’t consider how a variance weakens zoning code, failed to consult the variance law on the city books, and did not question the inadequacy of the information provided by Burnette. 

The City Commission gave similar short shrift to two other land-use issues in the last six months. 

In September, the City Commission tried to sell six lots in the Hot Springs District for $26,000 to a couple who made a private offer. Rubin, Burnette and Madrid claimed the City had seized the property through a condemnation procedure. However, the Sierra County Sun produced a deed from Sierra County that indicates the city paid for or was given the land conditional upon its use for recreation. The deed states, “J.A. Hodges, for consideration paid, grants to the City of Truth or Consequences [the six lots] . . .”

Madrid has vaguely alluded to the “City looking into it,” since then, not acknowledging the lack of City vetting on land use issues. 

In December, the City Commission granted a lot division to a couple on Van Patten Street which allows them to continue to encroach on public land and even extend their property line farther onto public land, giving permission to Madrid to make the deal with the couple behind closed doors, in violation of the anti-donation act. For more information read: “Public land deal goes behind closed doors.”

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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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