On Friday, March 16, in a surprising 48 page decision, City Land Use Hearing Officer Steven M. Chavez granted the appeal of 7 organizations to stop the City and the charitable organization Dawn Legacy Pointe from constructing a Safe Outdoor Space (SOS) on two city own lots located at 1250 Menaul Blvd. NE.
Appealing the Planning Department decision were the Santa Barbara-Martineztown Neighborhood Association; Crowne Plaza hotel; LifeRoots Inc.; Sunset Memorial Park, Greater Albuquerque Hotel and Lodging Association; Menaul School; and Albuquerque Hotel Project. The SOS would be a tent encampment for 50 homeless woman who are victims of sex trafficking.
A “Safe Outdoor Space” is defined as a lot, or a portion of a lot, developed to permit homeless encampments with 40 designated spaces for tents, allowing upwards of 50 people, require hand washing stations, toilets and showers, and require a management plan, fencing and social services offered.
HISTORY OF APPEAL
It was on September 28, 2022 after an appeal hearing that Land Use Hearing Officer Steven M. Chavez sent back to the Planning Department the original Dawn Legacy Pointe application, The hearing officer ordered the City to give legal notice to adjacent property owners and hold a hearing on the application. The City Planning Department had originally granted the Dawn Legacy application for the SOS behind closed doors without giving notice to surrounding property owners, neighborhood associations and businesses as require by law. The Planning Department held no public hearing on the application and the Family Community Services Department gave Dawn Legacy assistance in identifying city property for the SOS, assisted with its design and with the application and agreed to provide funding.
On December 22, 2022 the Planning Department granted for a second time approval for Safe Outdoor Space (SOS) on the city owned lots at 1250 Menaul Blvd, NE. The proposed Legacy Point Safe Outdoor Space is within walking distance of Menaul School, across the street from the T-Mobile Call Center and a Quality Inn & Suites, it borders Sunset Memorial Park and one block Carrington College and two apartment complexes and immediately East of the Freeway is the massive TA Travel Truck which is known in law enforcement circles for prostitution and illicit drug activity. Immediate south of the truck stop on University Blvd is the Crown Plaza Hotel
MAJOR GROUNDS FOR APPEAL OUTLINED
The Santa Barbara-Martineztown Neighborhood Association outlined the major grounds for their appeal which are worth noting:
1. The City Planning Department failed to follow City policies, procedures, and regulations required for the approval of the Safe Outdoor Spaces and applications for “special use” or “conditional use” zoning.
2. The city planning department “fast tracked” the Dawn Legacy application to approve the application just 8 days before the City Council could repeal the Safe Outdoor Space amendment on August 16 thereby acting in bad faith and to the determent of other property owners and businesses in the area.
3. The City of Albuquerque Planning Department unilaterally decided to review and grant the Dawn Legacy Point application behind closed doors without any public input, without notice to adjacent and surrounding property owners and without any public hearings.
4. The City of Albuquerque failed to notify the SBMTNA of the Safe Outdoor Space application filed by Dawn Legacy Pointe for 1250 Menaul NE and failed to allow input thereby denying the association due process.
5. The City Planning Department gave preferential treatment to the Dawn Legacy applicants by working with the applicants to identify city property to be used for a Safe Outdoor Space with the City Family and Community Services Depart agreeing to fund operating costs, with both city departments not affording other potential applicants the same opportunity.
6. The city council failed to enact operating procedures for Safe Outdoor Space encampments and failed to provide direction to the City departments charged with approving or disapproving Safe Outdoor Spaces applications and allowed approvals to be made without any kind of objective, standards-based decision-making process.
7. Dawn Legacy submitted a plagiarized operating procedure of a nonprofit unsanctioned encampment in another city and the City accepted those operating procedures.
8. The security plan offered Dawn Legacy Pointe and approved by the city for the homeless camp is defective and insufficient for the campsite to ensure safety of the tenants.
9. The City of Albuquerque Planning Department and the Solid Waste Department knowingly allow ed the establishment of a public nuisance in the form of a Safe Outdoor Space in the Martinez Town Santa Barbara Neighborhood. The Planning Departments actions are tantamount to the City allowing Coronado Park to become the city’s DeFacto city sanctioned homeless encampment in violation of the city’s own public nuisance law and city ordinances.
10. The City of Albuquerque Planning Department did nothing to provide processes for development decision of 1250 Menaul NE to ensure a balance of the interests of the City, property owners, residents, and developers and ensure opportunities for input by affected parties.
11. The operation and existence of a Safe Outdoor Space encampment at 1250 Menaul NE have had a determental impact on the Martinez Town Santa Barbara neighborhood and will adversely affect property values and interfer with residence peaceful use and enjoyment of their residential properties.
12. The encampment as proposed for 1205 Menaul, NE will become a magnet for crime and prostitution, or illicit drug trade given that it is in close proximity to a truck stop known for prostitution and illicit drug activity amongst law enforcement.
13. The location is directly across the street from a major call center and a Quality Inn & Suites and within walking distance of Menaul Boarding School and apartments. Occupants of the Safe Outdoor spaces are not confined and are free to go and come as they please and will easily wind up uninvited wherever they want to go, including the truck stop, and disrupt the peaceful use and enjoyment at any one of those locations or engage in illicit activity themselves.
ALLEGATIONS MADE BY OTHER APPELANTS
In addition to the above grounds for the appeal offered by the Santa Barbara-Martineztown Neighborhood Association, other appellants have alleged their own unique argument againsts the Dawn Legacy Point Safe Outdoor Space. Those argument include the following:
Menaul School argued that the safety of their students will be placed in jeopardy by the encampment and that the encampment will attract other homeless to school grounds. The school said uninvited homeless have already been on the school grounds resulting in security measures taken,
Sunset Memorial Park argued that it is already experiencing unacceptable trespassing of the homeless requiring increasing security and cleanup efforts. Homeless have been reported trespassing on the cemetery grounds using fountains for bathing and defecating and interfering with burial ceremonies. The cemetery believes that the Dawn Legacy Point Safe Outdoor Space will contribute to the problem.
The Crown Plaza reported an unacceptable number of the homeless have accosted its clientele in its parking lot and on hotel property and that the Safe Outdoor Space will attract more homeless to the area or its occupants to the motel soliciting from the hotel clientele.
FINDINGS OF HEARING OFFICER WITH ANALYSIS AND COMMENTARY
On February 27,2023 a daylong hearing was held on the second appeal of the city’s approval of the Dawn Legacy Point Safe Outdoor Spaces before Land Use Hearing Officer Steve Chavez.
The March 16 decision of Land Use Hearing Officer Steve Chavez contains an extensive listing and a summary of all documents reviewed by the hearing officer. Those documents include all application documents submitted by Dawn Legacy Point for the SOD, transcripts from the previous hearings and well over 1,000 documents submitted by the parties for review. The decision also lists all witnesses who testified.
The link to review the entire 48 page ruling is here:
Quoting in part the relevant portions of the March 16 written decision of City Land Use Hearing Officer Steven M. Chavez, the hearing officer found and ruled as follows:
- “Two of the appeal claims included that the SOS approval process under the Integrated Development Ordinance was unconstitutional and that the approval process must be vetted in a quasi-judicial public hearing, subject to public notice. Appellants argue that because the review process lacked public scrutiny, the administrative review of SOS applications, without a hearing, violated substantive and procedural due process under law.” The hearing officer ruled that the constitutional challenges were beyond the scope of review in administrative Land Use appeal hearings.
EDITOR’S COMMENTARY: The constitutional challenges may be beyond the scope of review in administrative Land Use hearings, but such arguments are routinely made in courts of law involving zoning issues. The Planning Department’s failure to give notice and conduct a hearing did in fact violate substantive and procedural due process under law and will be grounds for litigation against the city which is likely if the city persists with the encampment.
- “All seven appellants contended that the City Staff charged with reviewing the Dawn Legacy Point application were biased or were predisposed to approve it because the land proposed to be utilized for the use is owned by the City.” The hearing officer found that the facts and evidence presented did not establish actual bias, or even the appearance of bias, and were based “conjecture and nothing more.”
EDITOR’S COMMENTARY: It was not “conjecture and nothing more” that the city was biased or predisposed to approve the SOS. The Family and Community Services Director Carol Pierce and Deputy Director Lisa Huval testified to how they met with and worked with the Dawn Legacy Director privately behind closed doors and with Planning Department officials to find city land and assisted them with the application process and were offered city finances. Likewise, the Planning Department officials gave guidance to the application process as well.
- “The Appellants argued that the environmental studies in the record establish that the proposed SOS site at 1250 Menaul Blvd. NE would be harmful to occupants of the SOS use.” Land Use Hearing Office Steve Chavez disagreed and found that “the appellants failed to establish with objective evidence that the proposed site is environmentally harmful for a SOS temporary land use.
EDITOR’S COMMENTARY: It was illogical and made no sense for the hearing officer to simply dismiss outright the results of the environmental studies. The land is the cite of the defunct quarry used for construction of the freeway and one environmental study did say portions of the land is contaminated and that remediation was needed of the contaminates.
- “Three of the appellants argued that the SOS temporary use will become a public nuisance or an anticipatory nuisance or that the use conflicts with the Menaul Sector Redevelopment Plan.” The hearing office found that the argument lacked substantive objective evidence.
EDITOR’S COMMENTARY: There is both subjective and objective evidence that the Dawn Legacy Pointe SOS will become a “public nuisnance” or “anctcipatory nuisance”. The city’s “de facto” city sanctioned homeless tent encampment Coronado Park that had to be closed is the prime example of what can and will happen. The City was forced to close Coronado Park after it became a magnet for crime including murders and rapes and drug trafficking. The Menaul Sector Redevelopment Plan has been approved by the City Council and was created to try and revitalize the corridor because of crime and the homeless frequenting the area and having an adverse impact on businesses.
- All seven appellants argued in their appeal that the Dawn Legacy Pointe application record, which was reviewed by City Staff and ultimately approved, amounted to “less than substantial evidence” which is necessary to obtain an approval under the Integrated Development Ordinance (IDO) for a SOS use. After meticulously reviewing each document of evidence submitted and reviewed by City Staff, the hearing officer agree with the 7 appellants on this contention. The land use hearing officer found that the Planning Department’s approval of the application was “unsupported by the record” , and as such, he concluded that “it too lacked the requisite showing necessary under the Integrated Development Ordinance.” The hearing officer found that the City’s decision notification letter “lacked any cognizable findings, and it is in direct contravention of what is required by the Integrated Development Ordinance.”
EDITOR’S COMMENTARY The hearing officer was correct with this ruling.
- “There are standards and general requirements applicable to nearly all temporary uses and specifically to a Safe Outdoor Spaces. The IDO places the responsibility on an applicant for a Safe Outdoor Space temporary use to discuss the temporary use with a Zoning Enforcement Officer (ZEO) to determine the location, duration, and potential impacts of the temporary use. The appellants argue that there was a lack of documentation in the record showing that this initial procedural step was met by the applicants and by the Zoning Enforcement Officer or a designee.” Other than oral testimony in the appeal hearings, Land Use Hearing Officer Chavez found no objective documentary evidence in the record that this procedural starting point in the application process ever took place and no one within the City documented that a discussion on potential impacts of the SOS use at 1250 Menaul Blvd. 822 NE ever occurred.
EDITOR’S COMMENTARY The hearing officer was correct with this ruling.
- “The Integrated Development Ordinance has numerous requirements for an SOS applicant to satisfy, all of which must be supported by substantial evidence. Within the IDO, the review of an SOS application requires “as a matter of law” to make findings, “each” supported by substantial evidence.” The appellants contended and the hearing officer agreed, that the Operational Plan, the Security Plan, the provision of onsite support, and the offering of services, all required under the IDO for a Safe Outdoor Space were are inadequate to establish substantial evidence for approval.
EDITOR’S COMMENTARY The hearing officer was correct with this ruling.
- “DLP’s [Dawn Legacy Point] plans also have additional shortfalls with the precision of what types of services it will offer at the SOS site, specifically with the services categorically required in IDO, … The record is bereft of any evidence that “job training,” “education services,” “recreational services, and activities for use by the occupants” can or will be offered by or through DLP.
EDITOR’S COMMENTARY The hearing officer was correct with this ruling.
Land Use Hearing Officer Chavez made the following rulings:
“I find (1) that there is an insufficient factual basis to approve the application; the application is not supported by substantial evidence to satisfy explicit Use-specific Standards in the IDO; and
(2) that the decision approving the application is not supported by substantial evidence and violates at least two IDO requirements for such decisions. To expeditiously dispose of the matter, I do not propose another remand. …
The decision approving [Dawn Legacy Point’s] application for a Temporary [Safe Outdoor Space ] Use use permit should be reversed and the DLP application should be denied.
I propose that the City Council reverse City Staff’s decision and deny the application.”
NOTICE OF CITY COUNCIL HEARING
On April 3, the Albuquerque City Council will consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision.
REACTION TO RULING
Karl Holme, executive director of the Greater Albuquerque Hotel and Lodging Association, lauded the decision of the land use hearing officer. Holme said her organization’s members support city efforts to find solutions for the unhoused, but the two city lots at 1250 Menaul Blvd, NE are too visible and sends the wrong message to people from out of town driving through on the interstate. Holme said this:
“That’s our one chance as a city to really promote Albuquerque. … It’s a giant billboard and it really should be a pleasant focal point. It’s kind of like our front door.”
John Salazar, an attorney with Rodey Law Firm who represents the Crowne Plaza Hotel, also agreed with the decision. Salazar said homeless people who walk up and down the Menaul corridor already “make it difficult for the hotel to do business” by accosting guests in the parking lot and inside the hotel.
Salazar also noted the City council recent approval of the Menaul Metropolitan Redevelopment Area and said this:
“It makes no sense to put a tent encampment at the western entrance of the Menaul redevelopment area … [which will attract even more homeless].”
Maria Rodriguez, interim spokeswoman for the city Planning Department, said the land use hearing officer’s denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved.” In particular, the safe outdoor space is required to have 24-hour on-site services, but the application instead indicated it would provide on-call services. Rodriguez said this:
“They are welcome to reapply if they meet that requirement the next time around. … It just really seems like it was a small kind of technicality.”
The links to relied upon and quoted news sources are here:
MENAUL METROPOLITAN REDEVELOPMENT AREA APPROVED
Within the City of Albuquerque, there exists what are referred to as Metropolitan Redevelopment Areas. There are 19 known and approved Metropolitan Redevelopment Areas (MRA). Each redevelopment area has an adopted redevelopment plan that guides the City’s redevelopment strategy. The criteria for a metropolitan redevelopment areas includes “the property’s potential for reinvestment given site location, whether reinvestment in the property would catalyze investment in the MRA area broadly and how inclusion of the area will further the investment and development goals and strategies.” The inclusion of the property in a metropolitan redevelopment area “runs with land” means the requirements would be in place for future owners and projects.
In February and March the Albuquerque Development Commission and the Albuquerque City Council respectively approved Menaul Metropolitan Redevelopment Area. The Menaul Boulevard corridor is characterized by its important role within the economy of Albuquerque. The area is well located and central to the city with access to both Interstate 40 (I40) and Interstate 25 (I25) and in close proximity to the rail lines and the airport. There are stable and well-established neighborhoods to the north.
Menaul is home to many locally owned small businesses that provide retail, dining options, and other services, as well as larger retail and hospitality chains. Generally, the retail and service business are located along Menaul, with hotels located in proximity to I25 and I40. Generally, light industrial and storage uses are located between Menaul and I40, and between Menaul, Candelaria, I25 and the North Diversion channel.
While this is a very important area for supporting Albuquerque’s economic development, it is also an area that has problems with crime, and vacant or under-utilized buildings. The purpose of this project is to support the redevelopment and ongoing economic development of the Menaul Boulevard area. The area that this report will be focusing on are all the non-residential properties in the area bounded by I25 (west), Candelaria (north), San Mateo (east), and I40 (south).
MENAUL PROPERTY BEING LOOKED AT FOR GARBAGE TRANSFER STATION
In addition to the Dawn Legacy Pointe plan to establish and operate a “Safe Outdoor Space” at 1250 Menaul Blvd, NE to provide a tent encampment for 50 women who are homeless and who are “sex-trafficking victims”, the city’s Solid Waste Department wants to use 1 of the 2 adjoining city owned parcels of land for a garbage transfer station. The transfer station would allow individual city trash trucks to drop off their loads so larger vehicles could then transport the garbage to the landfill. It has been reported that while the city has looked at other sites for the garbage transfer station, the Menaul property is the only location currently under consideration.
COMMENTARY AND ANALYSIS
It is downright disgusting that Maria Rodriguez, interim spokeswoman for the city Planning Department, seriously downplayed the hearing officers ruling saying the denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved” and went on to encourage further application before the City Council decides the case and by saying “They are welcome to reapply if they meet that requirement the next time around.” The comments were out of line and insulting to the appellants who raised serious, legitimate objections to the Safe Outdoor Space and who have been essentially pulled through the ringer by the City Planning Department and the Family Community Services Department who are hell bent on granting the application and mandating two separate appeals.
Despite the Hearing Officers ruling that the allegation of biasness was unfounded and subject to speculation, it is clear that the Planning Department and the Family and Community Services Department went out of their way to give preferential treatment and financial aid to the applicants for a Safe Outdoor Space for unhoused woman who are “sex-trafficking victims”. Never mind the fact that victims of sex trafficking need stable and permanent housing and services and placing such women in tents to live is very degrading and revictimizes them again.
KELLER MUST BE HELD ACCOUNTABLE
Safe Outdoor Spaces have been one of the most divisive issues in the city for the last year. Safe Outdoor Space city sanctioned homeless encampments are not just an issue of “not in my back yard,” but one of legitimate anger and mistrust by the public against city elected officials and department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.
It was Mayor Tim Keller who first advocated for “Safe Outdoor Spaces” and who snuck $950,000 in his 2022 general fund budget for them. The City Council haplessly agreed to Safe Outdoor Spaces and then reversed course after public outcry and the attempt to exclude them failed with Keller vetoing the measure.
Only in the screwed up “Burque World” of Mayor Tim Keller can it be imagined that 2 adjoining lots of prime commercial property own by the city worth upwards of $7 million would be used for a Safe Outdoor Space for a tent encampment for women who are “sex-trafficking victims” and then the city would construct and run a “garbage transfer station” next to it. As has been originally proposed both the Safe Outdoor Space and the Solid Waste Transfer station would literally border on the West of the Menaul Metropolitan Redevelopment Area. The optics are so very representative of the kind of failed Mayor Tim Keller really is and how messed up he operates and thinks.
The general public has legitimate concerns that Safe Outdoor Space homeless tent encampments will become crime-infested nuisances, such was the case with Coronado Park. The homeless crisis will not be solved by the city but must be managed with permanent housing assistance and service programs, not nuisance tent encampments.
NOTICE OF PUBLIC HEARING
On April 3 the Albuquerque City Council will met and consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision to grant the Dawn Legacy Point application. Voters and residents are urged to contact and voice their opinion and tell all city councilors to vote YES on AFFIRMING the Zoning Hearing Officers decision and to deny once and for all the Dawn Legacy Point Application for a Safe Outdoor Space.
Their phone number and email address are:
CITY COUNCIL PHONE: (505) 768-3100
CITY COUNCIL AND SUPPORT STAFF EMAILS