On July 30, Dawn Legacy Point filed the very first application for a ‘Safe Outdoor Space’ homeless encampment. The Dawn Legacy Point homeless encampment is intended to provide accommodations for upwards of 50 women who are homeless and who are “sex-trafficking victims” and other vulnerable populations. The homeless encampment is to be located on vacant land at 1250 Menaul Blvd, NE which consists of two large parcels of property owned by the city with an assess value of $4,333,550.
On August 8, the City Planning Department approved the Dawn Legacy Point application for a Safe Outdoor Space homeless campsite at 1250 Menaul, NE. Seven appeals of the Dawn Legacy Point Safe Outdoor Spaces were filed asking the City Planning Department to reverse its decision and deny the Safe Outdoor Space application of Dawn Legacy.
The 7 appellants are:
- Martineztown Santa Barbara Neighborhood Association
- Menaul Middle School
- Life Roots
- Reuele Sun Corporation, a participant in the Menaul Redevelopment Area
- Crown Plaza Hotel, a participant in the Menaul Redevelopment Area
- T-Mobil Cell Phone Call Center
- Greater Albuquerque Hotel and Lodging Association
On September 28, 2022 an all-day hearing was convened by a City Land Use Hearing officer to hear the appeals. All seven appeals were heard separately but consecutively at the September 28, 2022 hearing. As a matter of administrative efficiency and economy, the appeals were consolidated and considered together for disposition
On October 10, City Land Use Hearing Officer Steven M. Chavez issued his decision in the appeal of Dawn Legacy Point application. Hearing Officer Chavez REMANDED the Dawn Legacy Point application back to the city Planning Department for further review after finding “substantial and meaningful violations of due process” of law to the appellants.
NEW MEXICO SUN ARTICLE
On October 13, the on line news agency “New Mexico Sun” published a report on the remand. The article was written by New Mexico Sun staff reporter Andy Nghiem. Below is the article followed by a link to the article:
HEADLINE: “ABQ Hearing Officer remands Dawn Legacy Pointe SOS application finding ‘substantial and meaningful’ violations of due process”.
By Andy Nghiem
“In response to appeals filed by the Santa Barbara Martineztown Neighborhood Association (SBMTNA), the Menaul School, and several local businesses, City of Albuquerque Land Use Hearing Officer Steven Chavez (LUHO) issued an October 10 ruling remanding the Dawn Legacy Pointe “safe outdoor space” (SOS) homeless encampment application back to planning. The officer found that in their rush to approve the SOS, City Staff and the applicant committed “substantial and meaningful” violations of “due process” by failing to provide appropriate notice.
In his ruling, Chavez wrote that, “…the applicants failed to properly send notification of the pending SOS application to all the qualifying abutting property owners within 100-feet of the proposed site (excluding right-of-way). Because the defect is so substantial and meaningful involving due process, a remand is fundamentally the shortest path to a final resolution of these appeals.”
Chavez also added that “Planning Staff disregarded the manner of notice required which is specifically applicable to all applications requiring “administrative decisions” in the IDO,” “The practical impact … was that a meaningful number of property owners who otherwise would be entitled to individualized notice of the application were not sent notice,” and, “Staff and the applicant erred because they disregarded an otherwise applicable process for a seemingly irreconcilable process that resulted in inadequate notice. Moreover, Staff’s interpretation of the IDO contravenes New Mexico law.” “Staff and the applicant erred and as stated above, a remand is the only cure to this due process violation.”
The SBMTNA’s appeal against Dawn Legacy Pointe’s ‘Safe Outdoor Space’ (SOS) application focused on several issues, not the least of which highlight the lack of transparency and due process extended to the public and the impacted communities. The appeal contended that by failing to follow established policies required for the approval of applications relating to ‘special’ or ‘conditional’ use zoning the City and the applicant ultimately acted in bad faith by “unilaterally” reviewing and approving Dawn Legacy Pointe’s application” behind closed doors” without notice to the public and without the required opportunity for public input. The appeal also claimed the City extended “preferential treatment” and gave “insider information” to Brad Day and Dawn Legacy Pointe while not affording the same to other SOS applicants.
The New Mexico Sun previously reported that days after the city of Albuquerque began accepting applications for safe outdoor spaces, the newly formed Dawn Legacy Pointe proposed an encampment at 1250 Menaul NE, a parcel just west of Interstate 25 within the Martineztown neighborhood. Following the news of the proposed encampment, the SBMTNA sent a letter to Family and Community Services Director Carol Pierce expressing outrage as the proposal was not discussed with them.
“The Santa Barbara Martineztown Neighborhood Association (SBMTNA) was informed that you attended a westside neighborhood meeting and informed them about providing homeless outdoor spaces in or near their area and the Martineztown Santa Barbara boundaries at 1250 Menaul NE,” the letter read. “This location is at the corner of Menaul NE and the Frontage Road. This news was disturbing because your office has never approached us to discuss this proposal.”
Albuquerque commercial real estate developer, Brad Day, has taken a special interest in pushing the ‘save outdoor space’ homeless encampment scheme for months. Despite not being listed on any of the corporate documents of Dawn Legacy Pointe or Street Safe New Mexico (the non-profit listed as fiscally sponsoring DLP), Day’s name appears several times on the 1250 Menaul ‘safe outdoor space’ application.
According to the City Planning Department’s instructions for a ‘special’ or ‘conditional’ use (like SOS) as well as other SOS applications received, applicants are required to notify neighborhood stakeholders of their application to allow for public notice and hearings. However, Lopez and the members of the SBMTNA never received any notification from Dawn Legacy Pointe or Safe Streets New Mexico regarding their pending application to place a homeless encampment in their neighborhood.
New Mexico Sun previously reported that following an Aug. 11 meeting between local Santa Barbra Martineztown leaders and city officials which included commercial real estate developer and ‘safe outdoor space’ advocate Brad Day, where Day and officials informed the group that the Dawn Legacy Pointe encampment application had already been approved, SBMTNA President Loretta Naranjo Lopez told the New Mexico Sun that it “seems like the city has known what they were going to do here for a while.”
“The city also knows the impact of homeless encampments next to neighborhoods and to not involve us from the beginning is incredibly discouraging,” Lopez continued. “Failing to have us at the table, especially when they know how dangerous these encampments are, shows a complete lack of regard for the welfare and safety of our community. They can call it ‘safe’ all they want, but we’re not safe and experience has shown us that.”
Because the violations of notice and due process were so “substantial and meaningful” the LUHO did not make any rulings beyond those focused on the failure to follow appropriate notice processes – leaving the door open for those issues to be considered in future hearings should the application proceed following its remand. Saying in the ruling that, “[b]ecause a remand is appropriate, proposed findings regarding the other appealable issues are not deliberated here.”
The link to the full article is here:
SUMMARY OF ISSUES
The hearing officers remand decision is 16 pages long and highly technical in nature containing and citing provisions of the Integrated Development Ordinance under which the Dawn Legacy Point application was approved by the City Planning department. The hearing officer pointed out that all the appeal arguments were substantially similar and had to do with an administrative decision from City Planning Staff for a proposed temporary Safe Outdoor Space (SOS) use application submitted by Dawn Legacy Pointe.
The only issue addressed in the remand order disposition was the issue presented regarding the lack of notices to abutting property owners. Notwithstanding, the hearing officer’s “fact findings” supporting his decision to remand and his summary of issues argued by the appellants merit review.
FACTS SUPPORTING REMAND
Land Use Hearing Officer Chavez made the following “findings of fact”:
“The record and the disposition of remand is supported by the following facts in the record:
1. In the most recent amendment of the IDO, effective July 28, 2022, the SOS use became a lawful temporary use which also included regulatory permitting provisions for their approval in the IDO
2. Dawn Legacy Pointe is a new incorporated non-profit entity, incorporated to provide safe outdoor space services to homeless persons in the City of Albuquerque.
3. Even though Planning Staff testified that an “application” was submitted by Dawn 31 Legacy Pointe to the City Planning Department on July 30, 2022, there is not an application in the record from Dawn Legacy Pointe or from their representative(s) for a SOS temporary use at any location.
4. To satisfy the requirement of sending notice of the application to abutting property owners under the IDO, in the record there are two “Property Owner Notice Forms” for the proposed temporary use, notifying the Sunset Memorial Park landowner to the West of the proposed SOS use, and notifying the City of Albuquerque as the lot owner of an unidentified lot.
5.The record also includes three AGIS City Zoning maps depicting the proposed lot
6. Presumably to support an application, there are documents in the record which were submitted by the applicants, including a site plan and other relevant exhibits, but there is not an application in the record. The only indication demonstrating that the City Planning Staff approved the “application” is exhibited in a computer file print-out sheet. The print-out sheet indicates a review date of August 10, 2022, and a review status of “approved.”
7. The record shows that the following documents were submitted to the Planning Department by Dawn Legacy Pointe:
A. A single page proposed site plan for the .79.-acre proposed SOS site
B. A two-page document labeled “Safe Outdoor Spaces Operation/Security 49 Plan.”
C. A one-page document labeled “Safe Outdoor Space Registration Form.”
D. A one-page document labeled “Intake Report Tracking” apparently copied 53 from the Mesilla Valley, Community of Hope—a non-profit entity designed to provide a wide array of homeless services in the Las Cruces area.
E. A four-page document apparently copied from Camp Hope labeled “Camp 56 Hope Agreements” with an attached waiver of liability form for homeless.
F. A single-page letter dated July 31, 2022, from Mathew Whelan, the City Director of the Solid Waste Management Department, advising Dawn Legacy Pointe that pending approval of the temporary use application, the City granted permission for use of one-acre of the site at 1250 Menaul Boulevard NE for 6-months, presumably for the proposed SOS use.
8. The proposed site is zoned NR-LM (Non-residential, light-manufacturing) under the IDO.
9. The proposed site is owned by the City of Albuquerque. Apparently, the City intends to enter into a lease and a solid waste management agreement with Dawn Legacy 67 Pointe soon.
10. The first appeal … was filed by the Santa Barbara Martineztown Neighborhood Association (SBMNA) on August 12, 2022. The next three appeals … filed by 9. Crown Plaza Albuquerque, the Greater Albuquerque Hotel and Lodging Association, and Beth Brownell and Scott Cunningham, respectively, were filed with the City on August 19, 2022. Two more appeals … were filed on August 23, 2022, by LifeRoots, Inc. and by Menaul School, respectively. The last appeal … was filed on August 25, 2022, by Robert D. Reule. All the appeals are timely filed.”
SUMMARY OF ISSUES ARGUED BY THE APPELLANTS
Land Use Hearing Officer Chavez summarized the appellants arguments as follows:
“1. Appellants contend that City Staff reviewed the Dawn Legacy Pointe application in an abnormal, expedited manner and, as a result, failed to scrutinize the application; gave preferential treatment to the applicants; and failed to properly notify all the abutting property owners and the SBMNA of the application and its review by City Staff.
2. The appellants contend that the operating and security plans approved by City Staff for the SOS use are inadequate; that the applicants have insufficient resources to operate a SOS temporary use; and that these deficiencies will result in the use becoming a public nuisance and/or it will adversely impact/affect the SBMNA membership and their neighborhoods, the business uses, and the Menaul School on Menaul Boulevard near the site.”
Land Use Hearing Officer Chavez issued the following remand instructions:
“To correct the due process violation regarding lack of notice, Planning Staff and the applicants must assure that individual notice is sent to:
All owners, as listed in the records of the Bernalillo County Assessor, of property located partially or completely within 100 feet in any direction of the subject property. Where the edge of that 100-foot buffer area falls within any public right-of-way, adjacent properties shall be included.
Before any administrative decision can be made on Dawn Legacy Pointe’s application, this is the minimal notice required [under the IDO] … The applicant [Dawn Legacy] must also show proof of sending the notices.
Anyone who satisfies the standing criteria of the IDO for appeals can appeal the subsequent administrative decision within the time specified in the IDO for such appeals.
Specifically, for the appeal issues that were not considered herein, an appellant must file a new appeal within the time required after the remand runs its course, but after Staff have made a subsequent administrative decision on the application.”
COMMENTARY AND ANALYSIS
It is very disappointing, but not at all surprising, that the Land Use Hearing Officer remanded the cases back to the Planning Department and ordered that it give proper notice to all the surrounding property owners. It was a course of least resistance to play it safe with the Keller Administration which is aggressively pushing the SOS to be approved.
The hearing officer should have granted all 7 appeals and denied the SOS application and set aside the Planning Department’s award of the SOS which would have forced Dawn Legacy to either accept the denial of the applications or to appeal directly to the City Council. It’s likely the City Planning will now just find a way to grant the application and the appellants will again be forced to appeal to a hearing officer and no matter the outcome of that appeal, the 7 appellants or Dawn Legacy, will appeal a second decision of the hearing officer to the City Council. It is the City Council who has the ultimate and final say on all land use issues and this entire mess of the Dawn Legacy application will eventually have to be decided by the City Council.
The downside is that Dawn Legacy will no doubt try to correct the defects in its original application giving it a second bite at the apple unless of course it decides to withdraw the application. The upside of the remand is that Dawn Legacy’s plans were to open the encampment in October. Now Dawn Legacy must place it on hold until they and the city get their act together, which is still a big if given the sure incompetence exhibited with the first application.
Mayor Tim Keller and his administration should be absolutely ashamed about what occurred with application and its treatment of surrounding property owners trampling on their rights and who were forced to appeal to protect their rights. There is no getting around it. What the Planning Department did in rushing the application process simply did not pass the smell test. What also did not pass the smell test is when the city gave Dawn Legacy preferential treatment and identifying city property for them to use.
Even if Dawn Legacy manages to correct it application, what will still remain is that the Safe Outdoor Space Use will have an adverse impact on the area and will result in the SOS property becoming a public nuisance. It will also adversely impact the South Broadway Martinez town Neighborhood Association and its membership the businesses in the area, and the Menaul School.
The Dawn Legacy Point homeless encampment is intended to provide accommodations for upwards of 50 women who are homeless and who are “sex-trafficking victims”. What is being created at 1205 Menaul, NE is a location for victims to become victims once again. There is no common sense to it at all and it is indeed just plain crazy. Mayor Tim Keller holds himself out as a progressive and has made housing of the homeless a top priority, yet ostensibly he has no problem with a Safe Outdoor Space to be use for victims of sex-trafficking. Shame on Tim Keller.
The actual location is troubling and has the potential of becoming a magnet for crime, prostitution or illicit drug trade. It’s located near a truck stop known amongst law enforcement for prostitution and illicit drug activity. It’s directly across the street from a major call center, a motel suite and is walking distance of Menaul Boarding School and apartments. Occupants of the ‘Safe Outdoor Space’ will not confined and would be free to go and come as they pleased and could easily wind up uninvited wherever they want to go. This includes the truck stop and disrupting the peaceful use and enjoyment at nearby locations or engaging in illicit activity.
Another upside to the hearing officer remanding the case is that Dawn Legacy could simply withdraw the application for the safe outdoor space, which would be the right thing to do and it is a real possibility.
Confidential sources are saying that Dawn Legacy have been offered the use of a building to house the proposed victims of sex trafficking. Woman who are victims of sex trafficking need permanent housing that is a safe place to live and be provided with far more stable housing than a tent in an open space lot area owned by the city. Forcing victims of sex trafficking to live in tents is nothing more than victimizing them again.
On October 20, it was reported that Dawn Legacy has added 18 more property owners to the list of those who must be given notice of its application and that the organization sent the letters out on Tuesday, October 18. Brad Day, a volunteer consultant for Dawn Legacy Pointe, said that once the application is approved again, the organization remains ready to “very quickly” launch the safe outdoor space once it gets the go-ahead. Day said this:
“We’re all set – we’ve got our insurance, we’ve got the fencing contractor lined up, we’ve got the tents and all the other materials that we need. We’re ready to go.”
Santa Barbara Martineztown Neighborhood Association President Loretta Naranjo Lopez said the association maintains that any city approval would be “detrimental and discriminatory” to the area and said this:
“We don’t want them there, period! We’re going to fight it all the way. We’re going to do everything possible to make sure they don’t stay there.”
The link to the quoted news source is here:
For those who may be unfamiliar, a review of the land use appeal process is in order.
A review of an appeal of a planning department land use decision, such is the Dawn Legacy Point Application for a Safe Out Door Spaces, is called a “whole record review” to determine whether the administrative decision approving the application was fraudulent, arbitrary, or capricious; or whether the decision is not supported by the evidence in the record; or if in approving the proposed use there was error in applying the requirements of the Integrated Development Ordinance (IDO), a plan, policy, or regulation. At the appeal level of review, the administrative decision and record must be supported by substantial evidence to be upheld.
The Land Use Hearing Officer (LUHO) may propose to the City Council that the Council affirm, reverse, or otherwise modify the lower decision to bring it into compliance with the standards and criteria of this IDO. The City Council also delegated authority to the LUHO to remand appeals independently and directly for reconsideration or for further review if a remand is necessary to clarify or supplement the record or if a remand will expeditiously dispose of the matter.
In administrative appeals, the appellants must first demonstrate that they each have “standing” to pursue the appeals. Standing is a jurisdictional, fact-based question under the IDO that must be determined before the merits of any appeal is resolved. Standing limits participation in appeals because if an appellant cannot sufficiently demonstrate standing, the LUHO is obligated to recommend a disposition that the appeal be denied. Under the IDO, an appellant must have a sufficient connection as an aggrieved party to have standing.
For purposes of the Dawn Legacy appeals, there were two alternative means for the appellant to demonstrate that they had standing to proceed with their appeals under the IDO:
First: An appellant had to demonstrate that they are property owners within 100-feet of the proposed SOS site, or that they are representatives of neighborhood associations whose boundaries include the proposed site or whose boundaries are within 100-feet of the site . This 100-foot proximity requirement expressly applies to temporary uses in the IDO … .
Second: An alternative pathway for standing was to demonstrating that the “property rights or other legal rights” of the appellant had “been specially and adversely affected by the decision” of the Planning Department in granting the application .