1. Statement of the Issues;

 

Come Now Appellants Kenneth and Kathleen DeHoff representing themselves Pro Se for their Statement of Issues state:  This is an action pursuant to NM Stat, §39-3-1.1 which allows Appellants, following the rules established by 1-074 NMRA, aggrieved by the decisions of Laurie Stout (‘Laurie’) in her role as Corrales Planning and Zoning Administrator and the Village of Corrales Governing Council (‘The Council’) acting as Zoning Authority, authorized by NM Stat, §3-21-1, to pursue an appeal in this court of final decisions from our appeal hearing September 16 2021.  We seek a review of the record <ROA00001-ROA000301> (‘RP’) of Appellees actions to reverse their decisions.  In addition to the written documentation of the record, the record also contains two media recordings <June 15th, 2021 Regular Council Meeting.mp4> (’Adoption’) and <September 16th, 2021 Special Council Meeting.mp4> (‘Appeal’).  We have also submitted for the record, details associated with the testimony of Laurie from the Appeal <IPRA Exhibit A- Exhibit E>

 

Our building permit application was denied by Laurie in her official role as the Corrales Planning and Zoning Administrator and her decision was affirmed by The Council.  Appellees have alleged in six different manners that we are proposing two dwelling units based on their June 15 2021 introduction of a new dwelling unit definition within Ordinance 21-04 <RP69-RP71>.   We rebut the assertion that our proposed home is two dwelling units under Corrales Village Code Chapter 18 (the ‘Zoning Ordinance’).  Our July 16 2021 plan submission should have been approved following Zoning Ordinance section 33 (2)(A) as a permissive use right.  We submitted a total of 3 different versions of our application over 7 days resulting in two denials.  Our plans were approved only after we were fraudulently coerced by Appellees to modify our plans to be in compliance with Laurie’s personal definition of a dwelling unit, which was undocumented, never-before seen and previously-unapplied, requiring ‘all rooms are part of the same contiguous heated space, and are accessible through the same door’ (‘Laurie’s Connected Interpretation’).  We will show from facts of the record that Appellees failed to follow their own Zoning Ordinance in this matter and violated several New Mexico Laws.  By deliberately supplanting the will of Appellees Dwelling Unit Definition, and by her unauthorized withholding of approval of our July 16 2021 permit application (the ‘Denial’) based on her personal dwelling unit definition, Laurie is in violation of NM Stat §3-21-10, NM Stat §3-21-1(A), and NM Stat §3-21-1(B)(2). And by formally adopting Laurie’s new dwelling unit definition per Conclusion1 and Conclusion 3 Findings of Fact <RP81-RP83>, The Council have violated NM Stat §3-21-10, NM Stat §3-21-1(A), and NM Stat §3-21-1(B)(2) as well as NM Stat §3-21-6(B).  Additionally, all Appellees have violated their oaths of office to uphold the laws of New Mexico by embracing Laurie’s illegal acts as legitimate.

We raise five material defects of law in the commission of the Denial that renders the final decisions of Appellees invalid and we associate these defects directly with our attacks on the applicable findings of fact (“Finding”) and conclusions of law (“Conclusion”) <RP81-RP83>

Defect 1 of 5 – Ordinance 21-04 <RP69-RP71> is invalid and unenforceable.  Recent modifications to the Zoning Ordinance made by adoption of Ordinance 21-04, relied on by Appellees as basis for our application Denial, are unenforceable because Ordinance 21-04 was adopted in violation of New Mexico Laws. This renders decisions after June 15 2021 based on this ordinance void. {Finding 12}

Defect 2 of 5 – The Denial of our permit application by Laurie was arbitrary, capricious, fraudulent, not in accordance with the law, and not supported by substantial evidence. {Finding 3, Finding 4(first), Finding 7, Finding 8, Conclusion 1, Conclusion 3, Conclusion 5}

Defect 3 of 5 –NM Stat §3-21-1(B)(2) and our civil rights under the New Mexico Constitution, Article II section 18 equal protection clause were violated as a result of the Denial. {Finding 9, Finding 10}

Defect 4 of 5 –Laurie’s personal dwelling unit definition is not allowed under the Zoning Authority granted by the state to Appellees, and mandating conditions for approval of our application, including the addition of heat, hallway space and a door is an ultra vires act. {Finding 5(first)}

Defect 5 of 5 - Our civil rights were violated under the New Mexico Constitution, Article II Section 18 due process clause during the permit application Denial, as a result of a biased and improper appeal hearing and by the erroneous and false Findings of Fact document. {Conclusion 4}

 

  1. Summary of the Proceedings;

June 15, 2021 Appellees considered <Adoption 54:00-2:08:00> and voted to adopt Ordinance 21-04 <RP69-RP71> which clarified several Zoning Ordinance Section 29 definitions.  The dwelling unit definition was changed to read: ‘a single unit with connected rooms intended, or designed to be built, used, rented, leased, let or hired out to be occupied 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.  A dwelling unit may be a mobile home, modular home, manufactured home or site-built house.  It may also be an independent unit of an apartment, townhouse or other such multiple-unit residential structure, where allowed by zoning code.  Recreational vehicles, travel trailers or converted buses, whether on wheels or a permanent foundation cannot be a dwelling unit.”  (‘Dwelling Unit Definition’).  In the Record, Appellees never actually use this definition.

 

June 28, 2021 Chris Donaldson submitted and had his home building permit approved by Laurie for 100 Coyote Trail, Corrales.  Chris Donaldson’s plans include a home that was similarly situated to our denied permit – it included a casita that is connected to the house by a covered porch <RP43-RP44>.

 

July 16, 2021 We submitted our plans <RP13> in person to the Corrales Building Inspector. 

 

July 19, 2021 Laurie issued her first Denial of our building permit application for a 3 bedroom home in two manners.  First at 9:36 AM <RP78> when we called her and had a 5 minute conversation, she verbally assaulted us and stated that the only way we will ever get our permit is if we add a heated hallway from the casita to the rest of the house.  Laurie asserted via email later that day ‘it’s a separate apartment with a kitchen that is attached to the garage but no connection to the rooms in the house’ <RP75><Appeal 48:40-49:45>.

 

July 20, 2021 We resubmitted our permit application, changing our plans to a 2 bedroom home by removing the casita, casita kitchen and the bedroom room labels and replacing them with office and workshop <RP18>.  The Corrales Building Inspector approved these plans <RP48><RP87> but Laurie again Denied them and we were given only the text of Ordinance 21-04 as the justification for this Denial <RP77>.  That evening we expressed our displeasure from the two Denials at Appellee’s Council Meeting.

 

July 21, 2021 We sent Laurie a certified letter requesting clarification for her two Denials relative to the Zoning Ordinance – to which she has never responded <RP80>.

 

July 21, 2021 Laurie emailed an explanation of both Denials <RP73-RP74> that stated her justification:  “It was quickly made clear that an interpretation would have to be established right away to what ‘connected’ means.  It means all rooms are part of the same contiguous heated space, and are accessible through the same door” (‘Laurie’s Connected Interpretation’).  The bulk of her explanation letter after this assertion concerns our comments at the July 20 Appellee Council Meeting, after the second denial and are irrelevant.

 

July 22, 2021 Laurie required on July 19 that we had to add a heated hallway between the sections of our home in order to receive a permit.   Her mandated changes consisted of adding heat to unheated rooms, converting a utility room to a hallway, moving and redesigning our HVAC ducting, adding tiling and adding a third door to our casita bedroom (‘Laurie’s Mandated Changes’).  We submitted this third version including Laurie’s Mandated Changes on July 22 2021.

 

August 5, 2021 The third plan submittal <RP63> was approved as confirmed by Laurie’s Email  <RP85>

August 8, 2021 We submitted a request for an appeal hearing

August 10, 2021 Sue Gerber’s building permit application for a home extension that included an area that did not meet Laurie’s Connected Interpretation was returned to Sue unsigned.  During the Appeal Laurie twice falsely states this as a Denial occurring April 19 2021 <IPRA Exhibit E><IPRA Exhibit B><Appeal 1:10:28-1:12:13><IPRA Exhibit D>.

September 16, 2021 Appeal hearing for July 19 2021 building permit Denial. <RP3>. 

Summary of the five defects of law;

Defect 1 of 5 – Ordinance 21-04 is invalid

Ordinance 21-04 is in violation of NM Stat, §3-17-4(B).  The mayor never endorsed the Ordinance.

Ordinance 21-04 is in violation of NM Stat, §3-17-2.  There is no enacting clause in the Ordinance.

Ordinance 21-04 is in violation of NM Stat, §3-21-5(A).  The Ordinance is in direct conflict with the Corrales Village Comprehensive Plan adopted April 2009 <Appeal 44:28-46:47> and the assertion of the Ordinance preamble that declares compatibility with the comprehensive plan is false.

Appellees violated NM Stat, §3-17-3(A) in failing to state the subject matter, a new policy of outlawing accessory dwelling units, in the Albuquerque Journal notice of hearing for Ordinance 21-04 <RP79>.

Defect 2 of 5 – The Denial was arbitrary, capricious, fraudulent, not supported by substantial evidence and contrary to the law

Arbitrary and Capricious

In the course of proceedings we have received 6 arbitrary reasons from Appellees for our building plans being Denied.  None of these reasons ever reference any Zoning Ordinance chapter or section, never mention the actual Dwelling Unit Definition and all 6 reasons for Denial have been applied only to us, as confirmed by Laurie in the appeal hearing <Appeal 1:13:00-1:13:25>.  On July 19 2021 Laurie asserted we were building an apartment <RP75-76>.  On July 20 2021 the Building Inspector stated that we were in violation of Ordinance 21-04 <RP77>.  On July 21 2021 Laurie stated we were building a duplex-type dwelling and that our rooms were not connected <RP73-RP74>.  On September 3 2021 we were informed that we were building two dwelling units by the village administrator <RP72>.  During the appeal September 16 2021 we were told that we were building a townhome with a firewall by Appellee’s Lawyer <Appeal 54:55-55:45>.  The October 12 2021 Findings of Fact <RP81-RP83> assert our rooms are not ‘interior connected’.

The contested area of our plans consists of 4 rooms in 600 square feet <RP13>. The rooms are labelled casita, casita kitchen, bedroom and bathroom.  During the appeal we testified our home configuration to be in compliance with the Dwelling Unit Definition and our assertions were unrefuted <Appeal 38:45-40:40>.  During the Denial, during the Appeal and in the findings of fact, our compliance with the actual language of the Dwelling Unit Definition is not refuted.  Laurie’s Denials of July 19 and 20 2021 relied only on Laurie’s Connected Interpretation in determining that we intended to build two dwelling units.  She asserted that because our home is not one contiguous heated space accessible through one door, the casita is a separate dwelling unit <Appeal 9:21-9:45>.

On July 20 2021 we resubmitted an alternative set of plans.  The physical characteristics of the contested area were the same but we changed the use.  The casita and casita kitchen were changed to a workshop and the bedroom was changed to an office and our total bedroom count was reduced from 3 to 2 <RP18><RP48-RP49>.  Our assertion during the appeal was unrefuted <Appeal 32:45-33:40>, that this alternative plan serves only living and sanitation uses of the Dwelling Unit Definition and is not independent from the rest of the house.  The building Inspector approved this plan version <RP48><RP87> but Laurie Denied this second application <RP77>. 

Inspection of both our July 19 and July 20 2021 plan submissions <RP13><RP18> further demonstrates the arbitrary and capricious application of Laurie’s Connected Interpretation:  Our Laundry, utility and mechanical rooms, pantry and 3 season porch are all unheated and the mechanical room has no interior door, hence our home, even after applying Laurie’s Mandated Changes, is still not one contiguous heated space.  These other gaps to Laurie’s Connected Interpretation have never been raised by Appellees as an issue.

Fraudulent

Laurie stated in her clarification letter to us on July 21 2021 her rationale for denial as an interpretation she created after Ordinance 21-04 adoption June 15 2021 of the word ‘connected’  “It was quickly made clear that an interpretation would have to be established right away to what ‘connected’ means.” <RP73>.  Under Cross Examination, Laurie was asked whether Laurie’s Connected Interpretation had ever been used to deny a permit, and when.  Laurie stated that she withheld approval for another permit on April 19 2021 <Appeal 1:10:28-1:12:13> which is in conflict with her written statement of July 21 <RP73>.  Our public records request after the Appeal <IPRA Exhibit C> identified no such denial has ever taken place.  Further, the permit she referred to was in her possession in August and never in April according to the applicant, Sue Gerber <IPRA Exhibit D>.  These facts of the record render Laurie’s answer to our cross examination as false testimony given under oath regarding material facts of the appeal, hence these statements are perjurious and invalidates all of Laurie’s testimony.

During the appeal, Appellee’s Lawyer was never sworn in and he made several false assertions in direct attack against us <Appeal 52:25-58:08>.  He asserted Ordinance 21-04 contains an enacting clause, and that the mayor properly endorsed it, both false statements.  Appellee’s Lawyer also falsely asserted our home possessed a fire wall and that all homes require one. <Appeal 54:55-55:45>.  In the findings of fact this is repeated as Conclusion 5 <RP82>.  We attempted to cross examine him but were rebuked twice by the mayor and prevented from challenging his false and improper assertions <Appeal 53:30-53:36><Appeal 1:15:20-1:15:40>.  His fire wall assertion was improper because this assertion had not been raised by Laurie in either Denial and the appeal was for review of a zoning issue hence the hearing had no subject matter jurisdiction to hear planning or platting evidence and the licensed building inspector was not present to offer testimony.  Appellee’s lawyer possesses no state construction credentials hence was not competent to raise this, he directly contradicted our approved plans <RP48><RP87>, and violated rule set 16-804(C) and (F) in the process and we were afforded no opportunity to prepare for or defend ourselves against this new false attack.

Appellees introduced another reason for the Denial that Laurie did not use during the actual Denials – after the appeal hearing – a new ‘interior connection’ interpretation is only found in the Findings of Fact <RP81-RP83>, again affording us no opportunity to defend ourselves, constituting another violation of the New Mexico Constitution Article II Section 18 Due Process Clause.

Not in accordance with the law

During the appeal we addressed the legislative intent from the public record of the adoption <Adoption> of Ordinance 21-04 and our unrefuted testimony established that Laurie’s Connected Interpretation is not included in Ordinance 21-04.  We documented <Appeal 34:05-37:05> that ‘connected’ in ordinance 21-04 is a long-standing administrative construction, and that Laurie specifically used the long-standing administrative construction of ‘connected’ multiple times in the adoption hearing establishing that Laurie’s Connected Interpretation did not exist nor was ever considered prior to Ordinance 21-04 adoptionWe also discussed the directive comments made by the Mayor and Laurie that Ordinance 21-04 was not intended to change any existing policies of the village  <Adoption 1:14:23-1:15:05><Adoption 55:31-55:49>

Not Supported by Substantial Evidence

We provided unrefuted testimony in the appeal that all of our plan submissions meet the language and intent of the Dwelling Unit Definition.  The Denial and appeal findings of fact never challenge this but instead add Laurie’s Connected Interpretation, Firewall Existence and no ‘interior connections’ as excuses to deny our permit, all of which we discredit which leaves only our unrefuted claims intact.

Defect 3 of 5 – Equal Protection Violation

On June 28th, 2 weeks after the adoption of Ordinance 21-04 and 3 weeks prior to our permit Denial, Laurie approved Chris Donaldson’s permit application <RP43-RP44>.  Chris’ approved permit included a casita similarly situated to ours – a covered porch connects the casita with the house.  In cross examination of this approval <Appeal 1:12:13-1:12:49> Laurie provided no rational basis for the approval of one and the rejection of the other.  Laurie also agreed with us that Laurie’s Connected Interpretation has not been applied to anyone previously <Appeal 1:13:00-1:13:25> while improperly parroting Appellee’s lawyer’s false fire wall argument as rationalization.  With no state construction industry division credentials Laurie is not competent to establish whether or not we are building a fire wall.  Laurie doesn’t know what a fire wall is and her comments equating our home to a duplex or triplex or “unlimited” multiple dwelling unit constructions are based on her incompetence and are absurd and false <Appeal 9:45-10:05>.  We assert that Laurie lied when she implied she had withheld approval of Sue Gerber’s permit since April 19 2021 <Appeal 1:10:28-1:12:13> because she did not similarly withhold approval of Chris Donaldson’s application on June 28 2021 - and also because Sue states clearly she submitted in August, not April <IPRA Exhibit D>.

Defect 4 of 5 – Ultra Vires Act

Our unrebutted testimony of the first Denial states that Laurie profanely required that we had to provide a heated hallway between sections of our home as the only way she would grant our building permit <Appeal 48:40-49:30>.  July 21 2021, the day after our second denial, Laurie emailed her clarification email to us <RP73-RP74>.  She asserts, in writing, the same requirement we had been given verbally - that we had to comply with Laurie’s Connected Interpretation in order to receive her approval, regardless of whether our casita satisfied the actual language of the Dwelling Unit Definition – the contiguous heated space and accessible through the same door were the only requirements we had to meet to gain her approval.  There were only two paths available to us – comply or never build.  We testified in the appeal <Appeal 41:50-43:33> that Laurie’s Mandated Changes along with Laurie’s Connected Interpretation are in violation of NM State law since her assessment that we are building two dwelling units is false, there can be no valid claim of public good in the record.  In addition, Zoning Authority explicitly granted by the state does not include the ability to restrict or regulate our rights to house floorplans of our choosing or to mandate heating requirements.

Defect 5 of 5 – Procedural Due Process Violations

In the Denial

Regarding both Denials of July 19 and July 20 2021, after these two Denials, we were left with no possible choices other than abandon construction altogether or build the house with Laurie’s Mandated Changes.  Note that neither the July 19 2021 Denial <RP75-RP76>, the July 20 2021 Denial <RP77>, nor Laurie’s clarification letter of July 21 2021 <RP73-RP74> ever mention any actionable defect relative to the Zoning Ordinance.  And our permit application, and none of the Denial letters ever established any right for us to appeal her decisions and the Mayor ignored our request when we asked her directly how to officially appeal this decision <RP75-RP76>.  The essential elements of procedural due process are absent in these Denials:  the principle of fundamental fairness, opportunity for hearing, confrontation and cross-examination, discovery, notification of basis of decision.  It was on our own initiative after August 5th to pursue justice for ourselves that we discovered our right of appeal.

In the Appeal

We raise significant procedural and factual issues from the appeal. The essential elements of procedural due process were absent in our appeal:  the principle of fundamental fairness, opportunity for hearing, confrontation and cross-examination, discovery, notification of basis of decision.

We were actively misled about the appeal, and we were never told of our rights in the appeal until we logged on.  The village building inspector, the Planning Approver who had approved our permit application was not called, Appellees relied instead on ‘expert’ testimony from their unqualified lawyer and we were not allowed to cross-examine his ‘expert’ testimony resulting in false inadmissible evidence beyond the appeal’s subject matter jurisdiction being introduced.   The Zoning Denials prior to the appeal said nothing about a fire wall or missing ‘interior connections’, so our prepared statement was not able to address these new attacks against us.

In the Findings of Fact Document

The aggregate effect of all Finding of Fact Document errors constitutes a violation of our Procedural Due Process Rights by attempting to establish provably false statements as statements of fact.  The document captures the false and inadmissible evidence of Appellees, establishing Appellee’s clear bias in the proceedings.

Finding 1 falsely declares we received our permit July 21 2021.  It was received August 5 2021.  Application was submitted July 22 2021. <RP53>

Finding 2 falsely declares we submitted our permit on July 19 2021.  It was submitted July 16 2021

Finding 4(second) falsely asserts we received our permit July 21 2021.  It was received August 5 2021.  Application was submitted July 22 2021.

Finding 5(second) does not include the date of August 8 2021 when we filed our appeal.

Finding 9 falsely asserts our plans include a kitchen.  This was unrefuted during the appeal.  Our plans include a casita kitchen which we testified is consistent with the dwelling unit definition prior to June 15 2021 as it has no ‘permanent provisions for cooking’ as seen plainly in our plans <RP13> it has no cooking appliances nor any energy source for cooking.  And since the Dwelling Unit Definition does not contain the term ‘kitchen’, this is an immaterial and irrelevant statement and every use of the term ‘kitchen’ by appellees is another failure to abide by their own Zoning Ordinance Dwelling Unit Definition.

Finding 13 is false.  Appellee’s Lawyer was never sworn in and we were blocked from cross examination of his false testimony by the mayor <Appeal 1:15:20-1:15:40>.

Finding 14 is false.  We requested 25 minutes for testimony uninterrupted.  We were significantly interrupted AND held to the 25 minute limit <Appeal 22:35-23:15><Appeal 46:45-46:58> resulting in having to abbreviate the content of our testimony while our attempts to object to false testimony were prevented by the Mayor <Appeal 53:25-53:36>

Disposition of the Agency;

On October 18 2021 we received The Council’s findings of fact in the mail.  Within the findings of fact they affirm both of Laurie’s decisions.  First, to deny our July 16 2021 application on the argument that we were attempting to build two dwelling units and second, to affirm the approval of our third plan submission that included Laurie’s fraudulently mandated changes. 

  1. Arguments of the Defects;

Defect 1 of 5 – Ordinance 21-04 is invalid {Finding 12}

Standard of Review – Actions were not in accordance with the law NMRA 1-074(R)(4),

Examination of Ordinance 21-04 <RP69-RP71> confirms the mayor never endorsed it which renders it invalid per NM Stat §3-17-4(B) and there is no enacting clause per NM Stat §3-17-2 which also renders Ordinance 21-04 invalid.  City of Albuquerque v. Water Supply Co., 24 N.M. 368, 174 P. 217, 5 A.L.R. 519 identifies an alternative mechanism for Mayoral Endorsement, confirming NM Stat §3-17-4(B) to be mandatory, not directory.  Regarding the lack of an enacting clause, while we can identify no precedent for this, we argue the statute is mandatory per NM Stat §12-2A-4.  The interpretation of ‘shall’ rests in the materiality of the directed action to the goal of the statute. The specific manner of language for enacting an ordinance in this case is material to NM Stat §3-17’s intent of proper adoption of Ordinances, hence the form of the enacting clause is mandatory.  To allow non-compliance with any section of NM Stat §3-17 would result in arbitrary ordinance passage, clearly inconsistent with the intent of NM Stat §3-17 to provide for orderly and consistent review and passage of ordinances. 

 

NM Stat §3-21-5 requires zoning law to conform to the comprehensive plan and Ordinance 21-04 is in conflict with the comprehensive plan, rendering it invalid.  During testimony we documented the specific gaps between Ordinance 21-04 and the comprehensive plan <Appeal 44:28-46:47> Specifically, the language of Ordinance 21-04 that changes Zoning Ordinance section 29 to add the statement “An accessory building or structure shall not be used as a second or independent dwelling unit” is in violation of Policy 2.3.1(C) on page 26 that establishes a need to provide criteria to support densities greater than 1 dwelling unit/lot – such as an accessory dwelling unit would provide and nowhere in the Comprehensive Plan is there a call to eliminate Accessory Dwelling Units.  This new policy within Ordinance 21-04 is in conflict with the comprehensive plan and refutes Finding 12 which provides only a vague excuse for Appellee’s false assertion in the preamble.

 

NM Stat §3-17-3 requires “Notice by publication of the title and subject matter of any ordinance proposed for adoption.”  Examination of the legal notice <RP79> shows it contains no subject matter notification and in the pale attempt to appear to comply with NM Stat §3-17-3 they pay lip-service to the wrong standard:  “General Summary of Subject Matter” of NM Stat §3-21-14 vs the required “Subject Matter” standard of NM Stat §3-17-3.  In MILES V. BOARD OF COUNTY COMM'RS, 1998-NMCA-118, 125 N.M. 608, 964 P.2d 169 (‘Miles’) the discussion of notice minimum requirements for a county zoning ordinance are discussed at length.  The county zoning notice ordinance NM Stat §3-21-14 is similar to the Municipal Ordinance version NM Stat §3-17-3, however it requires a less rigorous notification standard.  Instead of requiring publishing ‘of the subject matter’, the county zoning statute requires only a ‘general summary of the subject matter’ be published.  Because the one-line summary of the Title in the notice is not complete and does not contain the intended policy change of explicitly outlawing accessory dwelling units as the subject matter of the ordinance, the notice does not meet even the ‘general summary of the subject matter’ standard, resulting in having failed to inform us when we read it that Appellees had intended to make major land use policy changes that might apply to us.

 

These four defects render Ordinance 21-04 inconsistent with New Mexico laws, hence invalid per NM Stat §3-17-1.  The predictable response of substantial compliance is invalid – “a statute’s mandatory language cannot be lightly dismissed” Stennis v. City of Santa Fe, 2010-NMCA-108, ¶ 10, 149 N.M. 92, 244 P.3d 787. 

 

Defect 2 of 5 – The Denial was arbitrary, capricious, fraudulent, not supported by substantial evidence and contrary to the law {Finding 3, Finding 4(first), Finding 7, Finding 8, Conclusion 1, Conclusion 3, Conclusion 5}

Arbitrary and Capricious

Standard of Review – The agency acted fraudulently, arbitrarily and capriciously NMRA 1-074(R)(1)

We use TBCH, Inc. v. City of Albuquerque, 117 N.M. 569, 572, 874 P.2d 30, 33 (Ct. App. 1994) (‘TBCH’) to deliver our argument.  To summarize TBCH proceedings similar to ours: The attack against TBCH was taken by Albuquerque with a recently introduced arbitrary interpretation of the term ‘covered’ in their ordinance to mean ‘completely and opaquely covered’, and in our case the attack is taken against us by Corrales with the recently introduced arbitrary interpretation of the term ‘connected’ to mean ‘the same contiguous heated space accessible through one door’.  In TBCH the court determined the legislative intent was clear in the plain language of the ordinance and that interpretation was not allowable, hence ruling against Albuquerque’s interpretation.  TBCH paragraph {8} states "Legislative intent is determined primarily by the language of the act and statutory construction is proper only in the case of ambiguity." The court also identified that the recently introduced interpretation of “completely and opaquely covered” to be in conflict with Albuquerque’s long-standing administrative construction and enforcement of the term ‘covered’.  In our case we contend the same plain language defense of the unambiguous Dwelling Unit Definition, rendering no opportunity to apply Laurie’s Connected InterpretationSimilarly to TBCH’s recent introduction of their interpretation, Laurie’s Connected Interpretation was introduced recently, July 21 2021, two days after its initial use against us. Neither Albuquerque’s or Corrales’ interpretations are long-standing administrative constructions and hence not afforded persuasive weight.  Similarly to Albuquerque’s inconsistent enforcement problem, the substance of Laurie’s Connected Interpretation is inconsistent with Corrales’ long publicly visible history of allowing casitas, guest houses, in law quarters, workshops and sheds to be built, bought, sold and used with no enforcement.  TBCH paragraph {10} finally asserts as we do that if Appellees intended for their unwritten intent to be followed, it could have easily made that intent known by writing it into the ordinance.  We find it not credible that a mere month after Appellees adopted their clarified Dwelling Unit Definition, that it would require any interpretation at all to fully capture legislative intent.  This argument directly challenges and negates Finding 3, Finding 4(first), Finding 7, Finding 8, Conclusion 1 and Conclusion 3 <RP81-RP83> by disallowing Laurie to apply any additional interpretive modifications to the Dwelling Unit Definition.

Analysis of the Dwelling Unit Definition, interpreted by substituting Laurie’s Connected Interpretation in place of ‘connected’, reveals absurd results and we demonstrate this was not the criteria Laurie used to Deny our application.  Our argument relies on one logical principle:  in order to declare something a dwelling unit, Appellees must show that all components of the interpreted Dwelling Unit Definition are true.    We decompose the Interpreted Dwelling Unit Definition into 7 requirements to illustrate we do not meet this interpretation in any circumstance and provide the analysis in Table 1.  Summarizing the 7 components: (1 – a single unit)(2 – contiguous heated space)(3 – accessible through one door)(4 – intended for use)(5 – is independent)(6 – provides all occupational uses)(7 – is a valid construction).  We also argue based on simple logic there exists no possibility for this interpreted definition to render the result of us having proposed two dwelling units.  Similarly, applying this interpretation to our home including Laurie’s Mandated Changes still returns the result ‘not a dwelling unit’.

Interpreted Dwelling Unit Definition Requirement

House as a whole

Casita without House

House without Casita

House/Casita with Mandated Changes

1.     Single Unit

Meets

Meets

Meets

Meets

2.     Contiguous Heated Space

Does Not Meet

Meets

Does Not Meet

Does Not meet

3.     Same Door

Meets

Meets

Meets

Meets

4.     Intended for Use

Meets

Meets

Meets

meets

5.     Independent

Meets

Does Not Meet

Does Not Meet

meets

6.     All Occupational Uses

Meets

Does Not Meet

Meets

meets

7.     Valid Structure

Meets

Meets

Meets

meets

Assessment

Not Dwelling

Not Dwelling

Not Dwelling

Not Dwelling

Table 1 Lauries Dwelling Unit Interpretation Analysis

As applied to us, in order to declare we are building two dwelling units, Laurie did not interpret.  She had to redefine a dwelling unit by eliminating (5 – Independent) and (6 – All Occupational Uses) from the Dwelling Unit Definition and then arbitrarily ignore our unheated rooms and mechanical room with an exterior door.  Laurie had to change ‘with connected rooms’ which does not require that all rooms be connected, only that some are, into ‘all rooms are part of the same contiguous heated space accessible from the same door’.  Laurie’s Connected Interpretation is not an interpretation at all but rather a complete rewrite of the month-old Dwelling Unit Definition which rendered moot the will of Appellee’s Dwelling Unit Definition in violation of NM Stat §3-21-6(B).  Laurie’s definition reads:  A Dwelling Unit is a single unit with all rooms part of the same contiguous heated space, and are accessible through the same door intended, or designed to be built, used, rented, leased, let or hired out to be occupied.  A dwelling unit may be a mobile home, modular home, manufactured home or site-built house.  It may also be a unit of an apartment, townhouse or other such multiple-unit residential structure, where allowed by zoning code (“Laurie’s Dwelling Unit Definition”). Laurie stated Laurie’s Dwelling Unit Definition during the appeal <Appeal 9:21-9:45>.

Laurie’s Dwelling Unit Definition is apparent in our first Denial.  It was also referenced directly in the Finding of Fact Finding 4(first) <RP82> on our second Denial of July 20 2021.  Our application resubmission was our attempt to understand the Dwelling Unit Definition as written and comply with both its language and Laurie’s verbal directions.  Recall that on July 19 2021 we were given only verbal direction to comply with adding a heated hallway between the sections of the house and Laurie’s email assertion was: we were building an apartment with a kitchen with no connection to the rooms in the house.  While our casita kitchen has no ‘permanent provisions for cooking’, compliant with the pre June-15 2021 AND post June 15 Zoning Ordinance definitions of dwelling unit <RP13>, we removed it because it included ‘kitchen’ in the label and because Laurie had implicated it.  And we removed the bedroom from that area leaving us with only living space.  The remaining component of Laurie’s assertion – ‘no connection to the rooms in the house’ we did not address and our second submission on July 20 2021 was denied for this rationale only and Finding 4(first) states this clearly:  “it still created a second dwelling unit attached to the garage with no interior connectivity to the primary dwelling unit”.  It was not denied because it was independent and provided all five occupational uses from the Ordinance 21-04 Dwelling Unit Definition, but only because it failed  to satisfy the same contiguous heated space and same door requirements of Laurie’s Dwelling Unit Definition or the new ‘interior connections’ interpretation.  This logic is consistent in both denials, which implicates that under Laurie’s Dwelling Unit Definition, any room of a home, not connected by contiguous heated space accessible through the same door can now, subject to Laurie’s discretion, be declared an independent dwelling unit – a clearly absurd result and is a materially different definition from the Ordinance 21-04 Dwelling Unit Definition.  Laurie’s Dwelling Unit Definition is overbroad and ambiguous, rendering illegal otherwise legitimate floorplan design choices such as pool houses, outdoor enclosed patios or porch-access workshops and casitas.

During the appeal and in Conclusion 5 we find an additional rationale for the Denial that had not been shared with us before this moment, rendering it inadmissible, a procedural due process violation and it is based on a false assertion.  Appellee’s Lawyer testified that our home was built with a fire wall which defines our home as a townhome <Appeal 54:55-55:45>.  This absurdly false claim was not present in either of Laurie’s Denials, but it was repeated in Conclusion 5 when Appellees assert “No legal difference existed between the proposals and adjoined townhomes which would be prohibited under the Zoning Code.”.  We use the New Mexico Residential Code 2015 referenced on the building application to define a fire wall.  Our home is designed to the standard defined by “R302.6 Dwelling-Garage Fire Separation” for single family dwelling units and this can be seen plainly on all our plan drawings – the wall Appellee’s Lawyer refers to, between the casita and the garage, is simply a “2x6 wall”, exactly like all our other walls <RP13>.  We have no fire wall.  Townhomes can only be joined together by a common wall that is compliant with “R302.2 Townhouses” which calls out the engineering specifics of two independent fire resistant walls built together, requiring specific engineered plans.  If we had planned to build a fire wall we would have had to submit specific drawing details in our application and no fire wall plans or references are part of the record.  Thus the inadmissibly stated fire wall assertion is proven false and Conclusion 5 invalidated.  Enforcement of construction methods occurs under the Corrales Village Code Chapter 8 and our Denial is pursued by Appellees under Chapter 18, hence this evidence is beyond the subject matter jurisdiction for this action rendering all fire wall references inadmissible – as well as being false.  Approval of our plans by Appellee’s Building Inspector <RP48><RP87> factually establishes in the record that we are compliant with all construction rules mandated by Appellees including R302.2 – not R302.6.

Fraudulent

Standard of Review – The agency acted fraudulently, arbitrarily and capriciously NMRA 1-074(R)(1)

During the appeal we asked Laurie whether we were the only ones to have plans denied because of her Dwelling Unit Definition.  She stated falsely that we were not the only ones and then told a lie regarding the origins and nature of Laurie’s Dwelling Unit Definition which she testified, under oath, started April 19 2021 <Appeal 1:10:28-1:12:13>.  This provably false assertion renders Laurie’s entire testimony invalid, but it served to prejudice The Council against us as the assertion is found as Finding 10.  We also heard from Laurie that Laurie’s Dwelling Unit Definition was developed in “ongoing” discussions with Appellee’s Lawyer beginning April 19 2021.  However our IPRA Request <IPRA Exhibit E><IPRA Exhibit C> establishes there was no discussion at all with anyone of Laurie’s Dwelling Unit Definition until August 11 2021, 3 days after we filed our appeal.  There is no assertion in the record of any review of Laurie’s Dwelling Unit Definition by Appellees The Council and that Finding 8  declares Laurie’s Dwelling Unit Definition as valid Appellee policy is in violation of NM Stat, §3-21-6 (B) which  requires any changes to the ordinance to be reviewed properly in public.  The last question we asked Laurie was whether Laurie’s Dwelling Unit Definition had ever been used to deny a permit and she confirmed it had not been <Appeal 1:13:00-1:13:25>. Our cross examination of Laurie, ad-hoc as it was, served to establish in the record that Laurie’s Dwelling Unit Definition is a fraudulent creation, illegitimate policy and is applied to us uniquely.

The next component of fraud is in the testimony of Appellee’s lawyer asserting that our home is built with a fire wall <Appeal 54:55-55:45>.  As previously discussed, this is a false, inadmissible assertion.  Related assertions in the appeal from Laurie and Appellee's Lawyer that equate our home to a Duplex, Triplex, or other undefined multiple dwelling unit buildings must be addressed.  These assertions come from the incompetence of both witnesses, and are in conflict with our plan approval <RP48><RP87>.  Witnesses’ lack of any credentials to declare any such characteristic of building plans invalidates this fraudulent testimony.

Finally, the introduction of ‘interior connection’ as yet another version of Appellee’s rationale for Denial only in the Finding of Fact with no other occurrence in the record renders it inadmissible and the fact that it was introduced only in the Findings of Fact exacerbates the case against Appellees as being arbitrary and capricious in the Denial and constitutes another procedural due process violation since we never had the chance to defend against this attack.

 

Not in accordance with the law

Standard of Review – Actions were not in accordance with the law NMRA 1-074(R)(4)

We examine the text of Ordinance 21-04 <RP69-RP71> using HIGH RIDGE HINKLE JOINT VENTURE V. CITY OF ALBUQUERQUE, 123 N.M. 229, 938 P.2d 204 (S. Ct. 1997) (“High Ridge Hinkle”) to drive our argument that our home plans are consistent with the legislative intent of The Council and that Laurie’s Dwelling Unit Definition and the findings of fact interpretation of ‘interior connected’ are not consistent with the intent of The Council, hence Laurie’s Mandated Changes is in violation of the Zoning Ordinance.  High Ridge Hinkle paragraph {5} limits the mechanisms available to determine legislative intent and ‘assertion of legislators’ is not on this list: 1) the ‘plain language’ of an ordinance is the primary indicator; 2) the court will not read into a statute language that is not there, particularly if it makes sense as written; 3) the court gives persuasive weight to long-standing administrative constructions of statutes; 4) where several sections of a statute are involved, they must be read together.  We start by reading the several sections of Ordinance 21-04 together.  Its title states ‘to provide clarity’ as the objective and missing from the title are any indications of any new policy or land use restrictions to occur.  Turning next to the preamble which establishes the rationale for the ordinance, nowhere in the preamble do the terms ‘heated’, ‘contiguous’, or ‘same door’ occur.  There is no assertion in the preamble of any legitimate zoning concern per NM Stat §3-21-1(A) to be served regarding any enforcement around these terms.  Finally in the body of the ordinance, again no mention is made of the terms ‘heated,’ ‘contiguous’ and ‘same door’.  The text of The Dwelling Unit Definition included in Ordinance 21-04 makes sense as written, includes its definition of ‘connected’ as the long-standing, visible Corrales version of ‘connected’ and the definition makes sense when read as a part of the whole Ordinance 21-04 hence the new Dwelling Unit Definition is unambiguous and its intent is clear.

 

We examine next the record from June 15 2021 of Appellees in their public hearing held before voting to adopt Ordinance 21-04 < Adoption 54:00-2:08:00>.  We begin by noting the insertion of the long-standing administrative construction of ‘with connected rooms’ by Laurie - her only requested change, into the ordinance.  She stated this was from the existing definition of dwelling unit, clearly establishing this phrase as the long-standing administrative construction <Adoption 56:45-57:17>.  If, as Laurie had stated during cross examination <Appeal 1:11:33-1:12:13>, that she and Appellee’s Lawyer had been working to craft a replacement definition of ‘connected’ since April 19 2021, why did she not mention this or offer her result at that time?  When directly challenged on the new definitions, Laurie quoted the long-standing administrative construction of ‘connected’.  Vanessa Szanto had asked how an elderly parent would be able to live with her.  Laurie’s response was “someone can have a separate suite for their loved ones, it’s just connected to their existing house, it’s just not going to be a separate dwelling unit” <Adoption 2:01:26-2:05:29>, never mentioning Laurie’s Dwelling Unit Definition.  And both Laurie <Adoption 55:31-55:49> and the mayor <Adoption 1:14:23-1:15:05> asserted that the definition clarifications did not constitute new policy, in conflict with Finding 8 as well as Conclusion 3 mentioning Laurie’s interpretation, established after June 15, as village policy.

 

In the entire hearing of adoption of Ordinance 21-04, the concepts of mandatory heating requirements, contiguous floor space requirements or unique entrance configurations were never raised by Laurie, Appellee’s lawyer or Appellees The Council.  The lack of discussion of these topics is consistent with the ordinance text and hence legislative intent is clear from both the whole ordinance text and the legislative hearing of June 15 2021 – neither Laurie’s Dwelling Unit Definition or ‘interior connections’ are included within the intent of Ordinance 21-04.  In UNITED STATES BREWERS ASS'N V. DIRECTOR OF N.M. DEP'T OF ALCOHOLIC BEVERAGE CONTROL, 1983-NMSC-059, 100 N.M. 216, 668 P.2d 1093 (S. Ct. 1983) paragraph {9} “Statements of legislators,  after the passage of the legislation are generally not considered competent evidence to determine the intent of the legislative body enacting a measure. “.

 

This argument serves to clearly discredit Conclusion 1 and Conclusion 3 and Finding 8 and also invalidates Laurie’s Dwelling Unit Definition as valid policy and since it was applied under color of law in our Denial, in the appeal and per the findings of fact, it is fraud and in violation of NM Stat §3-21-10.  This makes Appellee’s assertion that Laurie’s Dwelling Unit Definition is adopted as valid policy an admission of violation of NM Stat §3-21-6(B).  Thus Conclusion 1 and Conclusion 3 and Finding 8 demonstrates an improper government action by Appellees at a minimum and both conclusions are invalidated.  We also cite STATE EX REL. VAUGHN V. BERNALILLO COUNTY BD. OF COUNTY COMM'RS, 1991-NMCA-151, 113 N.M. 347, 825 P.2d 1257 (Ct. App. 1991) Paragraph {6} that directs the courts “because zoning statutes and ordinances are in derogation of the common law, they are to be strictly construed”…”a reviewing court may not read into the law language that is not there, particularly if it makes sense as written” and Paragraph {11} directs further “Courts will not follow incorrect administrative interpretations”….”Strictly construing the express language of the foregoing provisions as we are bound to do, we hold that the Board was without authorization …” which clearly directs the court to disallow Laurie’s Dwelling Unit Definition from being used against us.

 

Not Supported by Substantial Evidence

Standard of Review – The decision is not supported by substantial evidence NMRA 1-074(R)(2)

During the appeal we testified that our home plans are not two independent dwelling units based on the Ordinance 21-04 Dwelling Unit Definition.  This assertion is not rebutted and the fact that our plans are approved by the Village Building Inspector <RP48><RP87> establishes this as fact in the record.  Instead, Appellees Denials relied on novel attacks based on Laurie’s Dwelling Unit Definition, declaration of existence of a fire wall and our failure to meet their new ‘interior connection’ interpretation as their material reasons.  Given that Laurie’s Dwelling Unit Definition is absurd, illegally applied and fraudulently misrepresented, and Fire Wall existence is false and inadmissible and the ‘interior connections’ interpretation is also inadmissible and as absurd as Laurie’s Dwelling Unit Definition, there remains no additional admissible evidence to declare our home to be two separate dwelling units and only our unrefuted assertion that our home meets the language and intent of The Dwelling Unit Definition is intact. GALLUP WESTSIDE DEVELOPMENT, LLC V CITY OF GALLUP, 2004-NMCA-010, 135 N.M. 30, 84 P.3d 78 (‘Gallup’) sets a very low bar for establishing the existence of substantial evidence:  “Substantial evidence supporting administrative agency action is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”.  Due to the absurd and fraudulent inadmissible nature of all contrary evidence, there remains no relevant evidence whatsoever to declare we ever intended to build two dwelling units.

Defect 3 of 5 – Equal Protection Violation {Finding 9, Finding 10}

Standard of Review – Actions were not in accordance with the law per NMRA 1-074(R)(4)

We follow Olech v. Village of Willowbrook, 138 F. Supp. 2d 1036 (N.D. Ill. 2000) (‘Olech’) to establish the violation of our equal protection right.  In Olech, plaintiffs had been required to grant a 33 foot easement in order to connect to the city water supply, while the community at large was only required to provide a 15 foot easement.  The US Supreme Court utilized a two part test in finding for the plaintiffs as a class of one.  The first test: were those similarly situated treated differently and the second test: is there a rational basis for the different treatment.  We apply these two tests to our Denial to demonstrate we were treated differently to those similarly situated for no rational reason.

On June 28 2021, 3 weeks prior to our application Denial, Chris Donaldson applied for and received a building permit for a single family residence at 100 Coyote Trail, Corrales.  As a part of his application his home includes a section referred to as a casita.  It is accessible from the house via a covered porch <RP43-RP44>.  We declared in the appeal that we are similarly situated to Chris Donaldson <Appeal 37:45-38:45>.  Both casitas are in A-1 zoned property hence bound by the same Zoning Ordinance requirements.  There are no material differences between our casitas in terms of the Dwelling Unit Definition – neither fully satisfy the notions of independence or satisfy all occupational uses.  Finding 9’s reference to a kitchen is inappropriate as previously noted and irrelevant since the Dwelling Unit Definition does not contain the term ‘kitchen’.  Nor are the two submissions different in terms of Laurie’s Dwelling Unit Definition – both would fail.  So we have established that both are similarly situated which meets Olech’s first test.  We further assert that we are similarly situated not just to Chris Donaldson but to the entire community of Corrales.  We proved during the appeal that we are the only individuals ever in the history of Corrales to have Laurie’s Dwelling Unit Definition applied to us, with Laurie concurring in cross examination <Appeal 1:13:00-1:13:25>.  These facts firmly establish our assertion that we have been treated materially differently to those similarly situated in the entire history of Corrales.

The Rational Basis Test is the least challenging of three possible equal protection tests.  In Docket S-1-SC-38151 dated August 2 2021 the New Mexico Supreme Court entered a relevant opinion to inform how this test should occur.  In paragraph {32} they state “[a challenger] must demonstrate that the classification created by the legislation is not supported by a firm legal rationale or evidence in the record”.  For our purposes of this decision we equate rational basis with firm legal rationale or firm legal evidence in the record.  When we cross examined Laurie during the appeal and asked why Chris Donaldson’s casita was approved and ours wasn’t <Appeal 1:12:13-1:12:49>, she stated it was a mistake she wished she could take back.  She did not assert any firm legal rationale or point to any firm legal evidence in the record but rather implicated her own arbitrary incompetence as the basis of decision.  Given Laurie was the author of Ordinance 21-04 and drove its passage less than 2 weeks prior to this ‘mistake’, it strains the credibility of the witness – which was already incredible – to believe she simply slipped up.  Olech demands there be no rational basis for different treatment and in this case there is none as clearly stated by Laurie, hence we meet Olech’s second test.

Some courts require a third test in an Olech defense – ‘ill will’.  We provide evidence that demonstrates Laurie’s actions of ‘ill will’.  On July 19 2021 our initial conversation with Laurie, as we testified at the appeal was a verbal assault <Appeal 49:03-49:45> and after delivering her ultimatum to include Laurie’s Mandated Changes to us, she refused to communicate with us <RP78>.  We documented this at the time via an email to the Mayor of Corrales along with our concerns <RP15>.  In Laurie’s testimony in the Appeal she acknowledged that she actively avoided any communication with us other than email <Appeal 10:30-10:45>.  We sent her a certified letter requesting clarification of her denial on July 21 2021 <RP80> that she never responded to, and finally, her willingness to provide perjurious testimony in the appeal, taken in context of these other behaviors demonstrates a clear animus towards us and we would contend meets the third Olech test, ‘Ill Will’.  We concur in Finding 9 that Laurie had no rational basis for treating ours and Chris Donaldson’s applications differently and Finding 10’s assertion of consistency in ‘all other cases’ is correct only due to the technicality that there are zero ‘all other cases’, in effect rendering both Findings in our favor.

We also state that the inconsistent application of regulation via enforcement of Laurie’s Dwelling Unit Definition on us solely to be in violation of NM Stat §3-21-1(B)(2)  that requires regulation within the same zone to be uniform. ALBUQUERQUE COMMONS P'SHIP V. CITY COUNCIL OF ALBUQUERQUE, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67 discusses the uniformity requirement of NM Stat, §3-21-1(B)(2) at length in paragraph {52}. “The uniformity requirement does not prohibit a different classification within a district, as long as it is reasonable and based upon the public policy to be served.”.  And in SMITH V. BERNALILLO COUNTY BD. OF COUNTY COMMISSIONERS, 2005-NMSC-012, 137 N.M. 280, 110 P.3d 496 paragraph {33} states “Owners have a right to use their property as they see fit, within the law, unless restricted by regulations that are clear, fair and apply equally to all.”.  Laurie’s Dwelling Unit Definition serves no public policy, is not clear, not fair and not equally applied hence is a violation of our land use rights.

Defect 4 of 5 – Ultra Vires Act {Finding 5(first)}

Standard of Review – Actions were outside the scope of authority of the agency NMRA 1-074(R)(3)

We establish that Laurie’s Mandated Changes were illegal, following Mechem v. City of Santa Fe, 96 N.M. 668, 671-72, 634 P.2d 690, 693-94 (1981) (‘Mechem’) holding “a city obtains its authority to zone from Sections 3-21-1 through 3-21-26" and "[i]t has no zoning authority beyond that provided by statute".

All assertions by Appellees in the record are that our plans are in some fashion in violation of the Zoning Ordinance and Ordinance 21-04 is repeatedly used in the Findings of Fact as justification.  Per Mechem, Zoning Authority is restricted by NM Stat §3-21-1 to 26.  The scope and limitations of zoning authority is documented by NM Stat §3-21-1 (A)(1-5).  NM Stat §3-21-1(A) asserts zoning actions must demonstrably address health, safety, morals or the general welfare ahead of the implementation of any action.  In application of Mechem to our denials we document that Laurie’s Mandated Changes applied to our home plans fails the NM Stat §3-21-1(A) Test and additionally, Laurie’s Dwelling Unit Definition is not within the scope of permissible regulations or restrictions within NM Stat §3-21-1 (A)(1-5).

 

In Finding 5(first) Appellees assert that Laurie’s Mandated Changes ‘eliminates’ the second dwelling unit.  As we have previously stated, because the assertion that we intended a second dwelling unit is proven false, her action to mandate changes is rendered fraudulent.  Additionally, ‘elimination’ is a false assertion even if we had proposed two dwelling units and is not based on any facts or rational basis or logic within the Dwelling Unit Definition or within the record. Laurie’s Connected Interpretation accurately describes every multi dwelling unit hotel and the majority of multi dwelling unit apartment complexes in the United States – they are all built as one contiguous heated space accessible through one door.  Also consider the popular practice nation-wide of converting garages to accessory dwelling units, resulting in multiple dwelling units within the same contiguous heated space accessible from the same door.  Hence the door and heated hallway demanded by Laurie’s Mandated Changes targets a non-existent issue, does not serve to change any dwelling unit’s status or limit dwelling unit counts.  Laurie’s Mandated Changes serves no NM Stat §3-21-1 (A) objective and Finding 5(first) is a false statement.

 

The second element of zoning authority scope in NM Stat, §3-21-1 (A)(1-5) is directly observable.  None of Laurie’s Dwelling Unit Definition is authorized within the state’s express authority, limited to restrictricting height, size, lot coverage, yard size, density of population or location or land use for our home.  The Zoning Ordinance cannot be construed to permit a zoning authority to infringe upon our property rights associated with developing a floorplan that meets our individual lifestyle, specifically the right to construct non-contiguous and unheated rooms.  We assert both as property rights and no testimony in the record has shown how asserting our property rights infringes on any rights of our neighbors. 

 

Per Mechem, since Laurie’s Mandated Changes do not serve NM Stat §3-21-1 (A) objectives and the actions are not explicitly authorized under NM Stat, §3-21-1 (A)(1-5), Mechem concludes in stating a zoning act that is beyond the authority of a zoning authority and does not serve the objectives of zoning is an ultra vires act.  We have demonstrated both hence Laurie’s Mandate is Ultra Vires.  NM Stat §3-21-1 is violated by Laurie, mis-using the authority delegated to Zoning Authorities by NM Stat §3-21-1 to 26 without valid justification, hence she is in violation of NM Stat §3-21-10.

Defect 5 of 5 – Procedural Due Process Violations {Conclusion 4}

Standard of Review – Actions were not in accordance with the law per NMRA 1-074(R)(4)

In the Denial

 

We do not find any precedent that fits our circumstance but STATE EX REL. BATTERSHELL V. CITY OF ALBUQUERQUE, 1989-NMCA-045, 108 N.M. 658, 777 P.2d 386 (Ct. App. 1989) (‘Battershell’) is frequently cited to establish the minimum Procedural Due Process Requirements that must be present in some form in an administrative action.  Simply stated on July 19 and July 20 2021 we received no procedural due process whatsoever and were bullied into submission by Appellees.  In the appeal we discussed the specific mechanisms of both denials <Appeal 48:40-50:40>.  The record shows we never received notice of the basis of the Denials based in the Zoning Ordinance, we were never afforded any meaningful opportunity to respond and were in fact actively blocked from responding by both Laurie and the mayor.  Any expectation of fairness, of discovery, or civil discourse were never on the table in any form, nor were politeness, decency or professionalism.

 

The first Denial between the phone call and Laurie’s email clearly established an ultimatum, constituting in our minds a complete taking of our property rights – we could not build and as the record shows, we tried multiple times that day to get her on the phone and she refused to answer or respond to voice mail requests to return our calls <RP78>.  And our escalation to the mayor explicitly asking how to appeal was ignored <RP75-RP76>.

 

After our second denial of our changed use-case plans there was again no notice of any specific defects, nor any opportunity given to question or appeal meaningfully.  We were defeated and faced Laurie’s statement of ultimatum – “if you don’t do it you’ll never get your fucking permit” <Appeal 49:03-49:45> and we submitted our third plan with Laurie’s Mandated Changes July 22 2021.

 

In the Appeal

Again following Battershell, we contend the minimum expectations of a fair hearing were not met resulting in an unfair appeal hearing in violation of our procedural due process right.  We were told informally by the clerk that we would be allowed to read a written statement – so this is all we prepared for, based on Laurie’s two Denials.  The charges of building a fire wall and having rooms not ‘interior connected’ were added as alleged defects during the Appeal and after, giving us no chance to defend against these attacks.  The Zoning Ordinance section 49 covering appeals does not document any procedural expectations of the appeal hearing so we are left to consider only Battershell to indicate what should be expected as a minimum. We read Battershell to require 1) that all witnesses must be sworn; 2) that cross examination of all witnesses must be allowed; 3) that notice of the mechanisms of the appeal be provided in advance; 4) that we have the right to introduce evidence including calling witnesses; 5) the proceedings must adhere to the fundamental principles of justice and procedural due process.

 

All Witnesses were not sworn.  Appellee’s Lawyer was never sworn and we were told during the hearing by the witness that he was not a witness <Appeal 1:13:34-1:13:52>.  However Appellee’s lawyer provided false testimony at least three times during the appeal that became part of the findings of fact which is an act of a witness. 

 

Laurie provided false testimony regarding the creation of her connected interpretation, attempting to establish that she had been working on it since April, when in fact it came in to existence on July 21, two days after she used it against us.

 

Cross examination of all witnesses was not allowed.  Under the guise of providing his ‘opinion’, Appellee’s Lawyer testified falsely that we were building a fire wall <Appeal 54:55-55:45>.  In preventing us from objecting to <Appeal 53:30-53:36> or cross examining Appellee’s lawyer <Appeal 1:15:20-1:15:40> the appeal violates this requirement.

 

We received no formal communication documenting the procedures or our rights in appeal.  We were told we would only be allowed to read a written statement based on Laurie’s Denials – and our statement was cut off before complete.

 

We were not allowed to introduce evidence including calling witnesses.  This was never offered, hence we never pursued it.  We would have called the Planning Approver in the denial, Joe Benney Building Inspector that approved our permit on July 20 <RP48><RP87>.

 

These items taken together clearly demonstrate the hearing lacked fundamental fairness resulting in our procedural due process rights being violated. 

 

We go beyond the proven lack of procedural due process and declare Appellees to be biased in this appeal hearing.  We refer to the collection of all issues previously discussed, on the record, taken together demonstrate bias per REID V. NEW MEXICO BD. OF EXMRS., 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198 (S. Ct. 1979) {7} states: “The inquiry is not whether the Board members are actually biased or prejudiced, but whether, in the natural course of events, there is an indication of a possible temptation to an average man sitting as a judge to try the case with bias for or against any issue presented to him” .  The indications are clear in the wanton multiple violations of our procedural due process rights led by a professional lawyer/mayor who knows the law and reliance on false testimony that we were never going to get a fair hearing and we assert the erroneous nature of the Findings of Facts and its fraudulent assertions confirms this.

 

In the Findings of Fact

We summarize the disposition of our arguments against the Findings of Fact Document:
Finding 1, Finding 2, Finding 4(second),Finding 13, Finding 14 are factually false statements observable in the record <RP53>

Finding 3, Finding 4(first), Finding 7, Finding 8, Conclusion 1, Conclusion 3, Conclusion 5 are all negated due to the use of fraudulent, arbitrary assertions of unwritten requirements that were unique to our permit application, under the guise of the Zoning Authority of Appellees

Finding 5(first), conclusion 4 are negated as being ultra vires mandates placed on our plans for approval

Finding 9, Finding 10 are negated as an illegal attack on our equal protection rights and violation of state law

Finding 12 is negated along with the other statutory defects of Ordinance 21-04 rendering it invalid

Finding 5(second), Finding 6, Finding 11 we have no quarrel with as they are of no consequence.

Conclusion 2 is irrelevant since we presented no evidence that we sought to build two dwelling units.

 

It was not until after we received our approved permit on August 5 2021 that we pursued justice for ourselves.  It was in this process that we discovered the rights we are now asserting. Conclusion 4 is invalid due to the extortion we experienced through Laurie’s unauthorized Denial based on her illegal redefinition of the Dwelling Unit Definition and her ultra vires act to force us to comply with Laurie’s Mandated Changes to cure falsely and improperly charged Zoning Ordinance defects which did not exist in order to receive our permit.  The harm in this action occurred July 19 2021 and persists.  Laurie’s illegal behavior is directly responsible for our second and third permit applications and our July 16 2021 application remains unapproved.  MILLER V. CITY OF ALBUQUERQUE, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665 (S. Ct. 1976) Paragraph {20} states the precedent for Appellee’s violations of their own Zoning Ordinance and New Mexico State Laws, “the failure to comply with its own published procedures was fatal to the decision”…” an invalid act cannot be made valid by ratification.” And ELDORADO AT SANTA FE, INC. V. COOK, 1991-NMCA-117, 113 N.M. 33, 822 P.2d 672 (Ct. App. 1991) states simply: “Failure to follow statutory procedures violated petitioners' due process rights, and no subsequent act could correct the defect”.

 

Based on the record, substantial evidence exists that Appellees have with deliberation and purpose, repeatedly violated New Mexico State Laws and the New Mexico Constitution in the act of Denying our permit.  The extent of malfeasance in these proceedings is breathtaking and requires all fraudulent evidence including everything tainted by the misrepresentations of Appellees be removed and their decision reversed.  In the event the court remands we request a move to a venue external to the Village of Corrales, who have proven they are biased and willing to violate New Mexico State Law in order to prevent our home from being built.

 

  1. Statement of Relief;

We request a rapid review and determination of this case based solely on the record and that any request for hearing be denied – the record is clear and complete.

We request that the decision of Appellee Laurie Stout on July 19 2021 and affirmed October 12 2021 by Appellees The Council that declared our home non-compliant with the Corrales Zoning Ordinance be reversed and that our original plans as submitted on July 16 2021 be acknowledged as a legitimate single dwelling unit design and we be allowed to modify our home back to this intent.

We request Just Compensation in the amount of $6,500 for the costs incurred to modify our home to comply with Laurie’s Mandated Changes and Just Compensation in the amount of $9,000 for the costs to be incurred to return our home to their July 16 2021 intent by removing the hallway and door of Laurie’s Mandated Changes.