Sunday, June 29, 2014

One Good Thing We Can Do

Each year Los Indigenes from Tortugas make a pilgrimage up Tortugas Mountain (aka “A” Mountain) in honor of Our Lady of Guadalupe. They have a decades-old lease for that purpose, and will continue to have and use that lease for decades more.

The pilgrimage is sacred. It's also an important local cultural event. A recent New Mexico Magazine article reminds us that some of it can only be witnessed here and in Mexico City.

Meanwhile the area has become a much-used recreation site. It has an incredibly isolated and natural feel to it, despite being less than five minutes from NMSU and the Interstate. For thousands of Las Cruces residents, Tortugas Recreation Area is a place they can hike or bike in a natural and quiet environment – or have a sunset picnic.

Marred only by a couple of sand and gravel operations north of Dripping Springs Road, it's a peaceful, desert landscape into which LCPS dropped Centennial High School a few years ago because the land was cheap. (Never mind the cost to City and County to improve roads and provide other requirements.)

Doña Ana Sand & Gravel is one of those mining operations. Since the 1950's DASG has mined sand and gravel, mostly or entirely on the North side of Dripping Springs Rd. Through an ancient mining law (repealed or replaced about six months after they started operations), the operators were allowed to buy the land from the BLM in 2005 for $2.50 an acre to continue mining. They got 24 acres north of the road and 16 south of it. The southern portion is immediately below Tortugas Mountain.

DASG asked the Extraterritorial Zoning Authority (“ETA”) to rezone the northern portion to formally recognize the mining. (The ETA decides such issues, after receiving recommendations from the Extraterritorial Zoning Commission (“ETZ”). DASG asked to rezone the southern portion commercial.

For many reasons, commercial was a bad idea there. It would have been disharmonious with existing properties and leases, including the recreation area and the Pilgrimage. The road wouldn't support the additional traffic (with folks turning off the narrow road to get a hamburger) and the morass of conflicting right-of-way claims made it unlikely the City or County could widen the road as would be required. A commercial installation wouldn't be the best neighbor to NM Farm and Ranch Heritage Museum, with its animals and with lots of kids and tourists coming to a museum that honors rural New Mexico. With obesity a national epidemic, fast-food joints adjacent to high schools aren't a great idea. Residents of Golf Estates, Talavera, and Las Alturas neighborhoods were also strongly opposed. The proposed customers of businesses on the site said “No!” in droves.

In 2013, staff initially recommended denying the commercial zoning request. The ETZ voted 5-1 to recommend approval. The ETA upheld rezoning the northern portion for mining, but rejected commercial zoning by 4-0. ETA urged staff to come up with something appropriate. 

More recently, staff presented the ETZ with a request for commercial zoning that differed slightly from the original request. Again there was vigorous and varied opposition. The ETZ reached a 3-3 tie vote, thus denying the request.

The three who favored the request each said, essentially, that they couldn't interfere with landowners' rights to do what they want with their land. If they mean that, they don't understand their jobs as commissioners. True, landowners' rights are one priority; but zoning decisions are precisely about when and how the public interest trumps them. Under what circumstances and to what extent should we (or can we, legally) restrict land uses?

Here, it's possible the commercial zoning could constitute illegal spot-zoning. (Staff says it wouldn't because it's technically “new zoning” not “rezoning.” Even if that argument proved technically valid, the policies against spot-zoning would still apply.)

Since one requirement for the commercial zoning sought was demonstrated need for a commercial zone, the passionate opposition of nearby residents and Recreation Area users tended to negate a required showing. 

The overwhelming community opposition, the inconsistency with surrounding land uses, and numerous other factors establish a community interest in keeping this area free of commercial activity.

Often such factors are subordinated to the interests of landowners who've invested heavily in the land and have legitimate expectations of profit.

Here, the landowners were essentially given the land because they were mining there. 

That doesn't mean they can never develop it and have no interest in making a huge profit; but it does mean there are not strong “equities” weighing against the clear community interest and possible illegality of the requested zoning. The ETA should zone the land for gravel-mining now, and let the landowners seek a rezoning at some later point. 

Of course, I hope the land south of Dripping Springs is not mined, and remains undeveloped, perhaps through a purchase by some public or conservation-minded entity.
[The column above appeared in the Las Cruces Sun-News today, Sunday, 29 June.
[The next event in this saga will be an ETA meeting set for July 16th at 5:30 p.m. in the County Commission Chambers at 845 Motel Blvd.  I'd urge folks who feel strongly about this issue  to (a) write the ETA in care of Steve Meadows, [] by July 9, (b) come and say your piece on July 16th, or both.  (I suggested writing by July 9th.  On July 11, the Friday before the meeting, they put together the packets for the ETA members.  A letter or email received before then will be in the packet.  A later-received communication will also be in the file somewhere, I think; but better to beat the deadline, and help give staff an extra day or two to put things together.)  You should not, however, try to discuss the matter individually with city councilors or county commissioners you happen to know, as they're supposed not to discuss this "quasi-judicial" issue informally in private.]

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