City Submits Motion for Extension to File Responses and Motion for Protective Order Granted

On Dec. 14, the City and Interested Parties filed a motion requesting an extension of time to respond to the Statement of Appellant Issues (SOAI). The appellants did not object to the extension. On Dec. 17, the judge granted the motion, giving the City and Interested Parties until January 29, 2021 to file a response to the SOAI (Count 4).

On Dec. 28, the judge granted the Motion for Protective Order filed by the City, requesting a stay of discovery until the Motion to Dismiss is decided. The judge indicated that she is waiting to rule on the Motion to Dismiss (Counts 1-3) until after the documents for the appeal (Count 4) have been submitted.

Statement of Appellant Issues Filed

Between the September 2019 and May 2020, over 70 neighbors, 5 neighborhood association and a church participated in an administrative appeal process regarding a site plan application for a 93-unit, 3-story multi-family apartment complex at Alameda and Barstow NE. On May 18, 2020, the City Council denied the neighbors appeal and upheld the Development Review Board (DRB) decision and subsequent Land Use Hearing Officer (LUHO) recommendation to approve the site plan application. On June 17, 2020, a legal appeal of the City Council decision was filed in District Court.

On November 12, 2020, a Statement of Appellant Issues (SOAI) was filed on behalf of the appellant group. The 35-page SOAI is based on the record of the proceedings and details eight specific concerns. N.M. Rule for Civil Proceedings in District Court 1-074(R) establishes the standard of review for this administrative appeal.

R. Standard of review. The district court shall apply the following standards of review:

(1) whether the agency acted fraudulently, arbitrarily or capriciously;

(2) whether based upon the whole record on appeal, the decision of the agency is not supported by substantial evidence;

(3) whether the action of the agency was outside the scope of authority of the agency; or

(4) whether the action of the agency was otherwise not in accordance with law.

Following the SOAI filing on behalf of the appellants is a 30-day period for the opposing parties in the suit to file a response.

City Seeks Motion for Protective Order

In response to requests for discovery regarding matters at issue in the case, the City has filed a Motion for Protective Order which seeks “a protective order either relieving the City of any obligation to respond to Plaintiffs’ discovery requests or, in the alternative, staying discovery until the Court has ruled on the City’s Motion to Dismiss“. What this means is that rather than respond to discovery requests that are part of the normal legal process for the case, the City asserts that not only should the questions of law (Declaratory Judgment) and questions of transparency (Open Meetings Act violation) counts be dismissed and not given hearing, it would be “burdensome” for the City to respond to discovery. As discovery is an inherent part of the legal process for matters such as this and the discovery requests at issue are reasonable and substantiated by legal questions raised by the case, our counsel has argued that the MPO should be denied.

Hearing Requested on Motion to Dismiss

The City’s Motion to Dismiss Counts 1-3 has been submitted to Judge Franchini and a hearing requested. The attorney for the City, Tim Atler, states in the filings that appellants should be allowed only an administrative appeal (Count 4). We disagree and hope Judge Franchini allows the pertinent questions of law being raised in Counts 1-3 to be heard. These questions of law have implications affecting the citizens of Albuquerque and how our City Council and Planning Department operate. These are:

Count 1)          DRB is expected to act in a quasi-judicial manner for approval of site plan applications.

Count 2)          OMA – City violated the Open Meetings Act in the DRB by not disclosing ex parte communications and at the LUHO and City Council levels by meeting via Zoom calls when state is in emergency shut down.

Count 3)          IDO Section 1-10(B) and City’s interpretation of it to determine the zoning at the time of application is the standard for the developer and thus neighborhood edges did not apply is incorrect and not consistent with state law.

City Responds by Filing Motion to Dismiss

We have filed 4 counts against the City in our lawsuit. Each count is basically a separate lawsuit that has to be fought individually. Three of the four counts of our legal suit against the City originate in District Court. This means they have all of the normal rights of a lawsuit – such as discovery, depositions, and appeal to the Court of Appeals. The fourth count is the appeal of the administrative process. This count is different as it is an appeal of the decision made by City Council and the District Court is the appellate court for this matter. The rights under an administrative appeal are reduced. There is no discovery or depositions and the ability to appeal a decision is very limited.

On Aug. 21, the City responded to the suit by filing a Motion to Dismiss the 3 counts that originate in the District Court. This means the City is attempting to limit our position to only the legally allowed appeal. This would also mean the City would not be subject to discovery or depositions on how decisions were reached or how it conducted the site plan application approval process.

Our attorney is working on both the response to Motion to Dismiss and the 25-page briefing for the judge on the appeal of the City Council decision.

Case Record Provided to Counsel

Assistant City Attorney Nicole Sanchez provided the “Record Proper” for the case to counsel. The 677-page record will be the source for citations in the briefing our attorney will file that expands on the issues raised in the suit.

Interestingly, we learned from the “Record Proper” that there were about 30 public comment submissions from concerned neighbors objecting to the project that were submitted via the City’s website prior to the May 18 City Council meeting but never reached the Councilors.  This set of documents is identified in the record as “Documents Submitted But Not Provided to Councilors.”  Thank you to all of the neighbors who took the time to make these submissions! 

Example of submission in advance of May 18 City Council meeting that the Councilors did not see.

More about the Legal Appeal

A legal appeal in District Court is the next step in accordance with state law to address concerns about a decision arising from an administrative process (NM Statute 39-3-1.1).

After the City’s decision to approve a 3-story, 93-unit apartment complex in the middle of a single-family residential area that for decades was intended to have a low-density development, a legal suit was filed to appeal that administrative decision. In addition, the suit raises important questions of law that have broader implications regarding what is permissible under the new IDO [Integrated Development Ordinance] and NM state law. These include the questions about how the Development Review Board operates, what is permissible under the NM Open Meetings Act, and the handling of the Neighborhood Edge provisions for the residential properties adjacent to the site.