December 3 Remand Hearing Notice Letter and Site Plan Drawings

The following notice letter was sent out by the developers agent. The letter includes notice of the hearing, information about the Dec. 3 Zoom call and the site plan drawings. https://alamedabarstow.info/wp-content/uploads/2021/11/Dec-3-DRB-Hearing-Notice-Letter_with-Alameda-Barstow-Apartment-Site-Plan.pdf

The following page with a color rendering and height comparison was not included in the notice letter: https://alamedabarstow.info/wp-content/uploads/2021/11/Alameda-Barstow-Site-Plan-Drawing-Color-Rendering-with-Height-Comparison.pdf

REMAND HEARING SET FOR DECEMBER 3 at 9:00 AM

The City is planning to hold a special Development Review Board (DRB) remand hearing for the proposed Alameda/Barstow apartment complex in accordance with the order from the District Court judge.  The purpose of the meeting to give a new “first hearing” of the site plan application following quasi-judicial procedure.  

Details are below:

The DRB remand hearing on this application will be heard on Friday, December 3, 2021 at 9:00 a.m by Zoom call.

The City will not require the pre-application meetings identified in 2018 IDO, Table 6-1-1. 

The DRB alternate members who will hear this case are:

1.    Mikaela Renz-Whitmore, Planning Manager

2.    Curtis Cherne, Principal Engineer

3.    Matt Grush, Senior Engineer

4.    Laurie Firor, Planning and Design Division Manager, Parks and Recreation

5.    Blaine Carter, ABCWUA

6.    Code Enforcement member TBD

Comments on this matter should be addressed to the special DRB convened for this case at least a few days in advance of the hearing.

Email subject line:  (Your last name) – DRB input for PR #2019-002496 – (submission date)

Send your email to:

mrenz@cabq.gov   (Mikaela Renz-Whitmore, DRB Chair for this hearing)

agomez@cabq.gov  (Angela Gomez, DRB Hearing Manager)

cc:  hess@yntema-law.com  (Attorney representing the neighborhood)

Remember to include your street address with your signature.

       

Judge Reverses May 2020 Decision and Remands Back to the City

On May 18, 2020, City Council voted to decide to accept the LUHO’s findings and reject the appeal by the neighborhood community on the Alameda/Barstow apartment project. Mid-June 2020, the neighbors filed an appeal of the City Council decision in District Court. The case was submitted to the judge for a decision at the end of Feb. 2021.

Issuing a decision on June 2, 2021 , Judge Nancy Franchini reversed the City’s May 2020 decision and remanded the matter back to the City for further proceedings, stating:

The Court reverses the City’s determination in its appellate capacity, concluding that the decision was not in accordance with the law requiring a quasi-judicial hearing, and remands the matter for further proceedings consistent with this Opinion.

In her Opinion, the judge stipulated that certain questions of the case are to be addressed by the City as part of the remand. Due to the remand, the judge did not consider the other three Declaratory Judgement counts that were part of the lawsuit.

The City and Developer now have a period in which to respond to the decision of the court.

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.