The Extra-Territorial Zoning Commission (“ETZ”) recently considered an effort to develop some land just below Tortugas Mountain. There were many good reasons to deny the request. Staff asked the ETZ to approve it. Many citizens wrote the ETZ or voiced their opposition at the meeting. The ETZ rejected a motion to approve staff's proposal. Three Commissioners spoke against it, and the motion failed on a 3-3 vote.
Staff appealed to the Extra-Territorial Authority (“ETA”). (The ETA is three county commissioners and three city councilors.)
Legally, staff can appeal, but some ETZ Commissioners wondered about the propriety of staff appealing the decision of a board appointed by the City and County.
Far more questionable was the written “Order” staff created.
Staff had argued, and other speakers rebutted, several points, including whether or not the zoning request met Comprehensive Plan objectives. Three commissioners rejected staff's arguments, yet certain of staff's arguments showed up as ETZ “findings” in the Order. Some “findings” contradicted what the prevailing side had said out loud at the hearing.
Some ETZ Commissioners aren't happy.
Because the ETZ doesn't meet often, staff often leaves just the signature page of an Order on a specific ETZ desk. “They took advantage of the fact that we often have to sign things on the fly. They routinely pressure people to sign things on the fly,” said ETZ Commissioner Douglas Hoffman. “It's never resulted in this kind of thing. As citizen-representatives, we rely on staff to faithfully carry out the Commission's findings.” Another commissioner described himself as “quite unhappy” and suggested there's a pattern of pushing things through without time for necessary input. He called staff's appeal “completely unique.”
It looks a bit dishonest to load an Order's “findings” with stuff the ETZ not only didn't find but didn't agree with.
Citizens argued (as did a petition signed by users of the Tortugas Recreation Area) that development would be inconsistent with surrounding land uses. So did the Tigua, who hold a lease to make an annual pilgrimage to the top of the mountain. So did the nearest residential neighbors. Every speaker, except the property owners’ paid engineer, opposed allowing a Planned Commercial Development at the base of Tortugas. Commissioner Hoffman specifically mentioned that development would interfere in some measure with the pilgrimages. Commissioner Sanders mentioned that the park was a transition area in which development to the extent that staff recommended would be inappropriate.
Nevertheless, staff wrote into the “findings” that “The proposed EC-3c zoning district would compliment [sic] this [neighboring] activity.” The ETZ found no such thing.
Should the commissioners have insisted on seeing the entire document, rather than relying on staff to faithfully record the proceedings? That's not the usual procedure. I'd think a commissioner could fairly expect at least that staff wouldn't quietly insert “findings” that contradicted the ETZ's position.
Suppose a staff member wrote into a businessperson's contract or a politician's speech material that the staff member wanted to say but knew the boss didn't agree with? How long would s/he have that job?
Many bosses trust staff to finalize documents. Many of us who've bought or sold a house have trusted a realtor on many details, and relied on that realtor's assurance that the document reflected our discussions. Is realtor or staff justified in taking advantage of a relationship of trust?
When I called County Community Development Director Daniel Hortert he said that the statements in the Order were not findings and not required by law. He later conceded they were findings, but reiterated that they're not required and said they're more trouble than they're worth.
The so-called findings he called “perfectly fine. It's not going to change.” He didn't challenge the view that the findings weren't the facts at least three of the Commissioners based their opinion on and that some even contradicted statements by the prevailing side.
He argued that the ETA would not pay attention to the findings but would hear testimony de novo then make up its own mind. That might be, but I suggested he include a note telling the ETA that the supposed “ETZ Findings” were never found by the ETZ.
County Commission candidate Beth Bardwell says the “findings” aren't so unimportant. “If I were on the ETA, that would be the first thing I'd look at, as a concise summary of the issues as the ETZ saw them.” She also pointed out that while the ETA would make up its own mind, if someone appealed to District Court a judge might be misled into viewing the findings as summarizing the ETZ's view.
Concerned citizens can hope the ETA Commissioners will read the Sun-News, although County Legal might object to that as an ex parte communication.
The ETA hears the case at 5:30, July 16th, in the County Commission chambers at 845 N. Motel Blvd. If you have an opinion, you're free to appear and voice it. Your voice could matter.
[I should have posted this yesterday, but was up in the wilderness, too delightfully far from cell-phones and Internet work. The column above appeared in the Las Cruces Sun-News on Sunday, 22 June.]
[If time permits, I may write a second column on the substantive issues in the case discussed above; in addition, the incident raises the more general issue of whether things are done with appropriate planning or just done. I do know that staff put a lot into the proposal rejected by the ETZ. What I don't understand is why, after the ETA unanimously rejected a fairly similar proposal last year and the ETZ (which had recommended approval of the earlier version 5-1) defeated this in a 3-3 vote), staff is pushing so hard, instead of accepting the obvious alternative of zoning the South side of the road as the ETA did the North, for the gravel-mining the owners got the land for $2.50 per acre to do. ]