Judge denies motion to dismiss zone appeal

Wednesday, March 4, 20

Judge denies motion to dismiss zone appeal
Julia M. Dendinger News-Bulletin Staff Writer; jdendinger@news-bulletin.com


After 90 minutes of arguments from four attorneys, a district court judge ruled that the San Clemente
Neighborhood Association would get its day in court.
District Court Judge George Eichwald denied a request Tuesday for dismissal of the association’s appeal
of a county commission zoning decision from July of last year. He also ruled to allow the Valencia Soil
and Water Conservation District (VSWCD) to file a brief of amicus curiae or friend of the court in the
matter.

In November, the association filed an appeal in district court asking for a reversal on the county
commission’s decision to amend the zoning of 30 acres on the west mesa above Los Lunas from outland
district to heavy industrial (I-3).
The zone change was to allow Plains Pipeline to build a bulk fueling terminal on the site. The acreage sits
in the unincorporated area known as San Clemente.
Eichwald did not set a date for the hearing but did note that his schedule would be open within the next
few months and he wanted to schedule it quickly. “I know this matter is important to both sides,” he said.
The judge heard arguments on the amicus brief first. Attorney Robert McNeill represented the VSWCD
and the brief’s author, district supervisor Dr. Teresa Smith de Cherif, on the matter of the amicus brief.
He informed the court that he was the pro bono counsel for the district and was presenting an amended
brief that had not yet been filed with the court clerk.
Eichwald asked if opposing counsel, Pete Domenici Jr., had received the amended brief. Domenici said
he had received it “just today.”
McNeill said the purpose of an amicus brief is to assist the court in rendering a decision on a matter,
noting that the court has broad discretion in reviewing briefs or other information that pertained to a
matter before a judge.
“There were a lot of people who will be affected who were not notified,” he said. “There is an issue of
how the county commission meeting was conducted. Due process is basically a rule of fundamental
fairness. Notice needs to be meaningful notice, not just publishing something in an obscure newspaper.
“There are a lot of folks who have a lot of standing in this matter. We ask that they be heard. You have
discretion what is appropriate for this court. I ask that you allow the Valencia Soil and Water
Conservation District to submit this brief and make available the information.”
Verne Payne, the attorney representing the association, said he and the association supported the motion
to allow the amicus brief to be filed. “The court does have judicial discretion,” he said. “If this
information is of value to the court fine. If not, then disregard it.”
Domenici said that the request to file the amicus brief was an attempt to delay the proceedings and to
amend the record of the matter. “This is on the verge of being substation ally prejudicial to my client,” he
said. “This is an attempt to bring in things that are outside the record. This amended brief has six to eight
entirely new factors.”
He continued, saying the conservation district had ample time to file its brief before now. “They missed
the appeal deadline after the commission made its final decision and the deadline to file the statement of
issues,” Domenici said.
Domenici went on to point out that de Cherif had spoken at the county’s hearings and, while not a party
with standing to the appeal, had become involved in the process at that point and should have filed in a
timely manner.
“When this was originally filed, it was frivolous,” he said. “Since then, Mr. McNeill did amend the brief.
You have to determine your own jurisdiction. When someone participates in a hearing and then misses
the filing deadline, they are out. Soil and Water is out.”
County attorney Adren Nance said the county also objected to the filing of the amicus brief. “The brief is
supposed to take into account critical legal facts,” he said. “They are attempting to introduce new facts
that cold have been brought in during the original hearing.”
In his ruling, Eichwald said that he had been inclined to deny the amicus brief because of the VSWCD’s
lack of legal representation, but McNeill’s presence changed that opinion.
He said he would allow the brief but did specify that the conservation district was not a party. “They may
file the brief,” the judge said. “This proceeding is not to try the matter again but a review of the record.”
Eichwald did note that he would be relying only on information already contained in the record of the
matter. “I am not going to take anything that is not in the record proper into consideration,” he said.
An amicus brief was filed in with the courts December of last year on behalf of the conservation district
by de Cherif. However, she filed it pro se or without a licensed attorney. In part, Domenici’s objection to
the brief stemmed from that situation.
In his response in opposition to the brief, Domenici says the district is “a governmental subdivision of the
stat, a public body politic and corporate” and as such, must be represented by a licensed attorney.
The judge ultimately allowed the district to file the brief, giving Domenici 15 days to file a response.
In the matter of dismissing the case entirely, Domenici argued that central issue was standing. And that
hinged on the question of just who filed the appeal.
The attorney questioned whether the association had standing to appeal the commission’s decision since
the “San Clemente Neighborhood Association” is not a recognized entity in the state of New Mexico.
“The members of an entity must have standing. There has been nothing showing that the members of this association have standing,” Domenici said. “They have to establish who they are, where they live and

why the association has standing and why it should be allowed to speak on their behalf. None of that has
been done.”
Domenici noted that only three individuals spoke at the county commission’s public hearing.
Payne said he would hate to see an issue of “such importance” dismissed because of a mistake on his part.
“I screwed up,” he said. “During the county commission hearings, I referred to them as a neighborhood
association in English and then transferred that onto the filed brief.”
San Clemente is commonly known by its English name as the San Clemente Neighborhood Association,
but its official name in Spanish is La Asociación de la Comunidad de San Clemente.
He went on to say that only three people addressed the commissioners in June because after three-and-ahalf
hours of testimony by paid experts from Plains Marketing, the commission chair had asked if those
in opposition could appoint two or three spokespeople.
“So I said, yes, of the 141 residents of San Clemente, we can have two or three represent them,” Payne
said. “Those residents signed and presented a petition in opposition to the zone change to the commission.
The commission also accepted a petition with over 400 signatures of people in support; people who did
not even live in the San Clemente area.
“So they are the ones who determined who had standing and they said anyone living in Valencia County
can have a say. The name was my error, and I don’t think it should be used to push through a zone change
where these people have their homes.”
Payne asked the judge to allow the matter to go forward and be heard on its merits. “That will prevent
prejudice on either side,” he said.
Domenici concluded, saying that but for the amicus brief and 15 days these proceedings would have been
closed. He went on to say that the matter was ready for a hearing on the merits.
“The court knows what is going on with the economy,” Domenici said. “This is a major project, and the
variables are changing for my client. When the change was approved, the county gave us three years to
make substantial completion on the project.”
Payne argued that the three years did not begin until the matter currently before the judge was decided. “I
would be willing to stipulate that the three years began when the commission made its decision,” he said.
Domenici laughed, saying he was willing to stipulate to Payne’s argument that the clock didn’t start
ticking until the judge ruled on the merits of the case.
At the June 18 county commission meeting, before the final vote was taken, Commissioner Ron Gentry
did ask that a condition be placed on the approval. “Given the current economic climate and considering
this is spot zoning, this is not an industrial park, I would like it included that if the entity does not proceed
and develop the facility within three years, the zoning reverts back to outland district,” he said. “If they do
not go ahead with the project, I would hate to see an I-3 (heavy industrial) zone just sitting there for all
the other possible I-3 uses.”
Commission chair Pedro Rael said he would support such a condition on the zone change. “That way, the
people living there know what’s going to happen,” he said. San Clemente is part of Rael’s district.
Max Griego, an attorney representing Plains, said that the company would stipulate to the three-year
condition. He did ask if the commission expected the project to be completed at the end of that time.
“This is a $37 million project we’re talking about,” he said.
Gentry clarified, saying the county wanted to see “substantial development” by the end of three years.
Rael amended his motion to state that the company had three years after the end of any final appeals on
the matter to make substantial development on the facility.
Eichwald denied Domenici’s motion to dismiss and reiterated his ruling to allow the amicus brief to be
filed.

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