We were on the agenda for a special appeal meeting to challenge the new ordinance 21-04 that outlawed accessory dwelling units, to be held via zoom only 5:30 PM Thursday September 16th. There was a great public turnout thanks to the community's efforts. We were still denied by the village but the next step, district court will allow us to have this heard by a judge.
Summary of Appeal:
My wife and I are here to appeal our two building permit denials that we consider were done capriciously, arbitrarily and in conflict with Corrales precedent, state and constitutional laws. We have been told that we were attempting to build two dwelling units which is a violation of code as specified by the new ordinance 21-04. We had two plan submissions denied by Laurie before a third version of our plans was approved when we modified them to add a door, heat and a hallway based on Laurie's requirement that: "all rooms are part of the same contiguous heated space and are accessible from the same door". We are asking that our initial July 16th plans be approved, without the door and hallway modification. Further, we believe 21-04 changes section 18 to be in violation of state law making sections of it invalid and recommend the removal of 21-04's changes.
We have 5 arguments that capture the fatal mistakes made by Laurie and the village. Our standard of review is to show (1) the denials were arbitrary and capricious, (2) the denials were not supported by the facts and exceeded authority granted by the state and (3) the denials were not in accordance with state law. I will quickly summarize the 5 arguments before drilling down on each one. I have provided reference materials at the end, including links to relevant documents and communications and also links to citations of New Mexico court opinions that support the points I am making and I also include the approved casita portion of our plans as well.
1. Ordinance 21-04 outlawing Accessory Dwelling Units does not apply to our plans
Because we aren't trying to build an accessory dwelling unit.
2. Section 18 as applied to our plans was arbitrary and capricious
We submitted two versions of our plans, one as a casita, the other with the same physical space called a shop. Laurie denied both, saying they were not properly 'connected'. There are two problems with her 'connected' definition. Law doesn't allow for extreme redefinition of common terms like connected, and on June 28th she approved plans for a home with a casita, much like ours, not connected in her required manner. In addition to this, the new dwelling unit definition states a dwelling unit must contain 5 features and be independent while our casita only contains 3 of the 5 and is not independent.
3. Section 18 is in violation of state statute and hence invalid
State law requires municipalities to provide for multigenerational housing but this was never offered to us as an option. In addition, the state expects municipalities to abide by their comprehensive plan and the Corrales comprehensive plan from 2009 mentions both casitas and accessory dwelling units favorably and also states the village was working, back then at least, to support multigenerational housing. Finally, State Law expressly grants how municipalities are allowed to restrict land use and for what reasons - and controlling floor plan and mechanical design doesnt make that list.
4. Ordinance 21-04 is unvalidated, invalid and unenforceable, hence unusable as justification for denying our permit.
The ordinance was passed following Corrales' procedures 2-61. Unfortunately 2-61 is less restrictive for passing laws than the state requires. Steps were missed relative to state law that makes 21-04 invalid and unenforceable.
5. Execution of both denials deprived us of due process, in violation of the 5th and 14th amendments of the US constitution as well as Corrales village code.
Procedural Due Process requires that we be given enough information about our denial so that we can effectively respond to that denial. The Corrales code section 18-45(a)(3) mirrors this, however, we were only ever given broad complaints to work with and never any reference to the village code, only ordinance 21-04.
This document is available online at http://www.badcoyotefarm.com
Calendar of denials:
Fri 7/16 5:00 PM - I submitted initial plans to Joe
Mon 7/19 9:33 AM - Joe calls me with First denial, explains I have to talk to Laurie
Mon 7/19 9:36 AM - I call Laurie and have First denial phone call
Mon 7/19 10:30 AM - I email an appeal for help to the Mayor
Mon 7/19 10:45 AM - Mayor forwards my appeal for help right back to Laurie and included Ron
Mon 7/19 11:20 AM - Laurie emails First denial
Mon 7/19 4:00 PM - I retrieved plans from Joe
Tues 7/20 8:00 AM - I submitted Second plan set to Joe
Tues 7/20 4:00 PM - Joe emails Second denial
Tues 7/20 4:30 PM - I retrieved plans from Joe
Tues 7/20 5:30 PM - My wife and I spoke at the commission meeting
Wed 7/21 8:00 AM - I sent a registered letter to Laurie
Wed 7/21 9:00 AM - I emailed a single page what-if proposal drawing to Joe via email, not entire plans
Wed 7/21 4:00 PM - Laurie emails denial explanation letter
Thu 7/22 9:00 AM - I Submitted our Plans with Laurie's Hallway (see image at end of doc)
Thu 8/5 2:00 PM - Signed plans paid for
Point 1: Ordinance 21-04 Does Not Apply
Between resolution 21-03's 6 month moratorium that expressly targeted accessory dwelling units and the language of 21-04's preamble that repeatedly calls out the concerns of accessory dwelling units, never mentioning apartments or duplexes, it is clear from the legislative record that the ordinance was intended to keep accessory dwelling units from being constructed. Given we do not propose an accessory dwelling unit and Laurie's assertions that we are building either an apartment or duplex, it should be obvious that ordinance 21-04 can not apply to our circumstance. (Citation #4)
Point 2: Section 18 As Applied to our plans was Arbitrary and Capricious
Our two denied plan submissions include the same area referred to as either casita or shop (see the images below). The first submission of July 16 referred to the area as a casita with a casita kitchen (with no appliances which was consistent with the prior section 18), the 2nd of our 3 bedrooms and a bathroom. Laurie denied this submission calling it "a separate apartment with a kitchen that is connected to the garage, but not connected to rooms of the house". The second submission on July 20th referred to the same physical area as a shop with a workbench and an office and bathroom and we reduced the bedroom count on the permit from 3 to 2. Laurie stated, after denying this second submission that connected means "all rooms are part of the same contiguous heated space and accessible through the same door". It is clear in view of these two denials that the Village takes a capricious and arbitrary approach to enforcing section 18, such that no reasonable person will be able to guess at what may be considered valid. How can anyone call a workshop with an office a dwelling unit or a kitchen with no appliances a place to cook? (Citation: #7).
July 16th, Casita with a bedroom and kitchen without appliances
July 21, Same Area, different use: shop with a workbench and an office
Since Laurie has never cited any specific village code section, we are left to infer that she believes our house design is not a single unit dwelling unit. A recent conversation with Ron Curry and Randy Autio support this, as they referred to our supposed intent to build two dwelling units as they were attempting to dissuade us from making this appeal. But, an exact reading of the dwelling unit definition using Laurie's substitution yields a different problem: "A single unit with all rooms a part of the same contiguous and heated space and accessible through the same door, ...." 25% of our envelope was designed as unheated, not including the garage. This seems a significant change from the existing ordinance and If this Is your intent, why was it not included in the ordinance? Is the precedent of always requiring 'contiguous heated space accessible through a single door' in Corrales so clear that it does not need to be stated? Laurie never brought this up at the June 15th adoption hearing. She was at the podium for most of that discussion and had ample opportunity. None of you brought it up either. She did add 'single unit with connected rooms' from the existing ordinance and stated this does not change existing policy, but will prevent people from "sneaking in an apartment" - so that's what she thinks we're doing. I suggest it is Laurie sneaking something in. You might be tempted to laugh this off as Laurie's naive mistake but she is the Planning and Zoning Administrator and used her authority based on this phrase to deny our permits twice and compel us to comply with her version of the law if we ever wanted to build on our land, which added significant reengineering costs, construction costs and schedule delays, not to mention the scores of man hours We've spent preparing for this appeal.
Laurie asserts this connected problem in both denials but this is provably incorrect if we limit ourselves back to the plain meaning of connected. And Laurie used this same plain meaning of connected at the June 15th hearing - twice. She used it when she added the term 'single unit with connected rooms' to the dwelling unit definition and then again in the discussion with Vanessa Szanto, to describe how an elderly parent will be able to live with her: Laurie said 'someone can have a separate suite for their loved ones, its just connected to their existing house, its just not going to be a separate dwelling unit'. Second chance that night, no mention of contiguous and heated floor space or a common door and when I checked with Vanessa she understood Laurie's comments the way I think we all do - physically connected, part of the same building. I consider the redefinition attempt of connected in her July 21st letter to us to be invalid under state law (Citation: #12) and her desire to interpret the ordinance to add it in is evidence to the fact that our floorplan is in compliance with the language and intent of the ordinance as written and we are inline with long-standing Corrales Precedent.(Citation: #6) The plain language test of statutory construction precludes any redefinition of the term ‘connected’ and statutory interpretation is not required or available because the language of the dwelling unit definition is unambiguous and makes sense as written. (Citation: #2)
We have discovered that Laurie approved a casita with a bedroom on June 28th that was connected by a covered patio, much like ours, and not a contiguous and heated floor space accessible through the same door as she expects of us (see image below). If this casita was approved on June 28th, why was our casita not approved on July 19th? While this approved non-contiguous casita appears to be inline with long-standing precedent of allowing such buildings in Corrales, does there exist any other permit denial because you required "all rooms of a single dwelling unit to be connected by the same contiguous and heated floor space accessible by the same door"? Are we the first? No - we are the only.
Turning to the second component in Laurie's denials, in declaring we have multiple dwelling units, it appears to be her assessment that our space is independent and complete, making it a dwelling unit. However the space is neither. Since the language of the dwelling unit definition is clear and unambiguous it must be read using the plain meaning of the terms within and is not subject to interpretation. (Citation: #9)
Our Home is a dwelling unit Because: it is a single unit with connected rooms providing complete independent living facilities for one or more persons, including permanent provisions for each and every one of the following uses: living, sleeping, eating, cooking and sanitation and it is a site-built house.
And the Corollary conclusion is:
Our casita is not a dwelling unit because it is not a single unit with connected rooms intended to provide complete independent living facilities for one or more persons, because it does not include permanent provisions for each and every one of the following uses: living, sleeping, eating, cooking and sanitation, specifically it does not have any permanent eating or cooking facilities and it is an integral part of our site-built home.
And to expound further, it shares curtilage, all physical, mechanical and other systems with the other rooms of the house, unfettered dog access between all house areas and I guarantee, Sandoval County is going to be taxing us as a single home.(Citation: #8)
Our home is thus a single-family dwelling-unit and is a permissive use under Village Code 18-33(2)(a).
Point 3: Section 18 is in violation of state law and invalid
NMSA 3-21-1(F-G): Zoning Authorities Shall accommodate multigenerational housing by creating a mechanism to allow up to two kitchens within a single-family zoning district, such as conditional use permits.
Since our first submission included two kitchens on the plans, and if our two dwelling units were so obvious to the village, and the state mandates that you must provide this, why wasn't this option for a special use permit ever discussed? Even Randy and Ron never suggested this as a compromise. Corrales Village Code 18-45(3) requires that you should have made this known to us if allowed. The Comprehensive Plan from 2009 stated you were working to provide this - I guess it is still a work in progress? Without this accommodation anywhere in section 18, it is inconsistent with state law.
NMSA 3-21-1(A)(1-5): For the purpose of promoting health, safety, morals or the general welfare, a county or municipality is a zoning authority and may regulate and restrict within its jurisdiction the:
height, number of stories and size of buildings and other structures
percentage of a lot that may be occupied
size of yards, courts and other open space
density of population
location and use of buildings, structures and land for trade, industry, residence or other purposes.
and Consistent Aesthetics is routinely added to this list
Municipalities are expressly granted all authorities by statute: NMSA 3. They include eminent domain, policing, flood plain management, and planning and platting and zoning and several others. NMSA 3-18-6(A) authorizes you to "prescribe standards for constructing and altering buildings" within your planning and platting authority which grants extensive authority to determine what goes on inside a new building using NMAC and other building codes. But the state does not authorize you any ability to enforce floorplans or heating requirements within your zoning authority - they are not on that list (Citation: #3). How does Laurie’s heated hallway in our house promote health, safety, morals or the general welfare? What’s the link?
NMSA 3-17-3(A) Requiring Notice by publication of the title and subject matter of any ordinance proposed for adoption
That requires the title AND subject matter be published- was it maybe misuse of a boiler plate that had you declare 'see title for subject matter?' in the notice? Because you did not communicate at all your intent to outlaw accessory dwelling units or the intent to assert new floorplan and mechanical design requirements in the journal notice. And then there is also the problem of the ordinance preamble, never mentioning why you need to do this, why "not connected" rooms or unheated rooms or duplexes or apartments are a problem - nor does the comprehensive plan of 2009, which leads to the next statute:
NMSA 3-21-5(A):The regulations and restrictions of the county or municipal zoning authority are to be in accordance with a comprehensive plan…
In Section 2 Residential Development of the comprehensive plan, adopted in April 2009 it is recommended that ‘allowing accessory dwelling units or casitas on larger lots, ours is 4 acres, could also be an option in providing alternative housing to residents’.
Additionally it states: "Close to 55 percent of the respondents to the public opinion survey supported allowance for accessory dwelling units while approximately 30 percent of the respondents opposed allowing accessory dwelling units. "
The community's support for Accessory Dwelling Units was also clear in the survey you conducted this year during the moratorium, where only 45% indicated that we should ban construction of all new Accessory Dwelling Units while well over 50% were in favor of various limitations or accommodations that could be established to allow Accessory Dwelling Units.
The comprehensive plan policies 2.3.1 (A,B) that you cited in the preamble of ordinance 21-04 states the intent to maintain 1 dwelling unit/lot density and encourage socioeconomic diversity. Policies 2.3.1 (C,D) that you did not reference, explicitly call out the need to establish specific criteria for exceptions to 1 dwelling unit/lot, like Accessory Dwelling Units, and also to consider larger lot zoning. Citing this section in the preamble as justification for outlawing Accessory Dwelling Units when it never recommends this anywhere and expressly directs the opposite is disingenuous at best. Ordinance 21-04 was passed in direct and obvious conflict with the Village' comprehensive plan, which is a violation of state law.
Point 4: 21-04 is Unvalidated, Invalid and Unenforceable
NMSA 3-17-4(B): Within three days after the adoption of an ordinance or resolution, the mayor shall validate the ordinance or resolution by endorsing "Approved" upon the ordinance or resolution and signing the ordinance or resolution.
NMSA 3-17-2: The enacting clause of a municipal ordinance shall be: "Be it ordained by the governing body of the ............ (here insert name of municipality).""Be it ordained by the governing body of the Village of Corrales"
NMSA 3-17-1: The governing body of a municipality may adopt ordinances or resolutions not inconsistent with the laws of New Mexico...
The mayor never endorsed 21-04 so it is adopted but not validated, but with no enacting clause it is invalid. Ordinance 21-04 was passed in compliance with Corrales Code 2-61, but 2-61 is inconsistent with the laws of New Mexico. That invalidates any statute passed following 2-61, including Ordinance 21-04 (Citation: #5). While you might argue that these are just minor issues, consider applying to these words on the page, the same standard of compliance that you are expecting of us regarding Laurie's implied, unwritten definition of connected - and then tell me you are being fair and just and holding yourselves to the same standard that you hold us.
Point 5: Lack of Procedural Due Process
Section 18-45(a)(3) of the village code calls out the due process requirements during a denial. It states in part, 'the inspector shall...notify and advise the applicant of his findings and the subsequent procedures as required by this article'. Neither denial came with 'subsequent procedures as required by this article', - beyond Joe telling us to deal with Laurie - and neither denial calls out the specific village code sections even though we repeatedly asked. Failure of both of these drastically limited our ability to respond to or defend ourselves against unlawful taking of our property rights (Citation: #1)
Laurie's first denial is just a declaratory statement and does not indicate any defect against any legal principle. Her 2 line email stated:
"I did not hang up on him, he kept arguing and finally hung up on me.
It’s a separate apartment with a kitchen that is attached to a garage, but no connection to the rooms in the house."
The 5 minute phone call to Laurie earlier that morning made the denial crystal clear. She insisted a heated hallway between the sections of the house was required and when I objected she said "If you don't do it you'll never get your fucking permit" and when I tried to object again, certainly more vigorously after that, she ended the conversation by saying "When you bring me something I can approve, I'll approve it". It’s a he said/she said issue of who hung up on whom but I tried repeatedly and was not able to get her back on the phone that day, and she never reached out to me. I've included my phone log from that day for the curious. The return of our application unsigned without anything more was all we had to work with. We were left 'hunting' for a solution - we did not, and do not want to add that hallway and were seeking alternatives - was it the apartment or was it just the kitchen, did she not like it attached to the garage, did we have to just remove it altogether? A reference to the village code would not only have been the polite thing, it is the legal minimum requirement under the village code as well as the US constitution.
The second denial is nearly as bad. Joe sent us a copy of Ordinance 21-04 as he was instructed to by Laurie, but again the denial failed to mention any specific actionable defect - although Joe did tell us on the phone that while the permit met all the planning requirements, it did not meet the hallway requirement set by Laurie. Laurie's letter a day and a half later only restates her complaint about the first submission and crystalized the connected definition she had been using against us, but this time our home was called a 'duplex-type dwelling' instead of an apartment, which she stated 'is not allowed under code'. Again there was the failure to cite anything specific within the village code.
We sent the following registered letter to Laurie July 21st, the morning after her second denial.
The letter asks:
On the 19th you gave us this input when you rejected our plans: “It’s a separate apartment with a kitchen that is attached to a garage, but no connection to the rooms in the house”. We incorporated your concerns and resubmitted on the 20th a plan that clearly is neither an apartment nor (has) a kitchen. We are confused as to what we can do at this point to have our plans approved. We are requesting that you give us specifics from Section 18 that you are using so that we can submit something that you can approve. I request a response within 7 days – we are on a construction schedule.
She has never responded. Our final submission that was approved has the contiguous and heated space between all rooms of the house accessible through the same door as her denials of July 19th and 20th required.
We believe that any one of these 5 defects are sufficient to invalidate Laurie's decisions which were based on Ordinance 21-04 and ask you to consider these defects and vote to overturn her denial and allow us to build our 3 bedroom home as first submitted July 16th.
Additionally, given the defects noted relative to state law, we strongly believe ordinance 21-04 to be invalid and recommend it’s removal.
And a question remains that you have to answer:
If the council's intent is not to enforce Laurie's definition of connected, then her denials of our permit based on her notion of connected was not only arbitrary and capricious, they were also acts of prejudice, fraud and malfeasance and consequences are required.
New Mexico Court Opinions
11. Connected Rooms means: through a single door with contiguous heated space - no opinions noted
Required: Addition of door, relocation of HVAC and duct work, addition of heated space, loss of garage space for a hallway