On May 12, the Keller Administration announced it was issuing what it referred to as “Request for Interest” calling on city developers to share ideas on developing 11 City owned vacant properties into affordable housing. The request for information comes before a bid process that would see the city give away vacant land it owns to developers after first collecting ideas for development.
The “Request for Interest” included a map highlighting eleven city-owned properties that could be developed into housing. Eight of the city owned properties are west of Rio Grande and many are empty lots in residential areas. The Request for Interest closes on May 30, 2025.
According to Joseph Montoya, the Deputy Director of Health, Housing and Homelessness, the goal of the “Request for Interest” is to find new ideas to address the city’s housing crisis. Montoya said this:
“Instead of sitting vacant, these properties could be transformed into homes and communities. … Through this Request for Interest, we are leaning on our strong partners for their valuable insight to add more needed units to our City’s inventory. … We wanted to know if we had people interested in developing affordable housing, and of course, in this case, we can give the property away. … Hopefully, we’ll have interest on all the lots. That’s our hope because there’s such a dire need here. … A lot of them already have infrastructure on them. All of them are already zoned [for residential development] … So, from our perspective, these are lots that we already know are appropriate for the development of affordable housing. … Anytime you’re giving away free land, I think that’s a win-win. … That’s the incentive right there.”
Mayor Tim Keller said this in the city release:
“The housing crisis is now, and we’re fully committed to using every tool at our disposal to address it. … Investing in a range of affordable housing options creates pathways to stability, uplifts families, and prevents more people from falling through the cracks and becoming unhoused.”
NEW MEXICO ANTI DONATION CLAUSE EXCEPTION
The anti-donation clause in the New Mexico Constitution prohibits state and local governments from making donations to or in aid of private entities. This includes preventing public funds from being used for private benefit, like supporting private businesses or non-profit organizations. The clause’s purpose is to prevent corruption and ensure public funds are used for public purposes.
The initial reaction to the city of Albuquerque giving away 11 vacant lots it owns free and clear is that it violates the “anti-donation clause” of the New Mexico Constitution. According to the New Mexico Anti-Donation Clause, it would generally be considered a violation for a city to give away land without commensurate consideration. It would constitute a “donation” or “transfer without value” to another. However there is an exception when it comes to affordable housing.
The anti-donation clause contains a clear exception and allows a city to give away land for free for affordable housing.
Article IX, Sec. 14 of New Mexico Constitution is the Anti Donation Clause and it provides in part as follows:
Neither the state nor any county, school district or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association or public or private corporation or in aid of any private enterprise.
… .
[A. through D. Exceptions]
- Nothing in this section prohibits the state, or the instrumentality of the state designated by the legislature as the state’s housing authority, or a county or a municipality from:
(1) donating or otherwise providing or paying a portion of the costs of land for the construction on it of affordable housing;
(2) donating or otherwise providing or paying a portion of the costs of construction or renovation of affordable housing or the costs of conversion or renovation of buildings into affordable housing; or
(3) providing or paying the costs of financing or infrastructure necessary to support affordable housing projects.
https://codes.findlaw.com/nm/new-mexico-constitution/nm-const-art-ix-sect-14/
BUYING “SURPLUS PROPERTY” FROM THE CITY
The City of Albuquerque Real Property Division has identified a number of properties that could benefit the community by being developed as future Affordable Housing locations.
The City of Albuquerque owns tracts of land and/or buildings that are sometimes no longer needed to satisfy a public purpose. These types of properties are known as “surplus properties.” The City of Albuquerque has city ordinances regarding the disposal of surplus real property. These ordinances dictate how properties are determined to be surplus, how they are valued, and how they are sold or disposed of. The POSTSCRIPT below provides the ordinances.
Before the City sells, exchanges, or donates real property, it must be determined that the property is not essential for a municipal purpose. The Administrative Real Property Review Board makes the determination that a piece of real property is not essential for a municipal purpose. After property is determined as NOT ESSENTIAL, an appraisal of the value of the property must be made by the city’s Property Management Division or a qualified private appraiser.
Once the City’s Real Property Division identifies a potential surplus property, it seeks to have it declared not-essential by the City Council. Non-essential properties are then marketed for sale in accordance with City Ordinance and are sold through a bidding process.
Real property with a value of $500 or less can be sold for cash at a public or private exchange without notice. Real property with a value exceeding $500 may be sold at a public or private sale to the highest bidder. No real property shall be sold or exchanged for less than 90% of its appraised value.
Real property of any value may be sold to, exchanged with or donated to the state, any of its political subdivisions or to the Federal government after a determination by the Mayor or Council as provided herein that such sale, exchange or donation is in the best interests of the city.
COMMENTARY AND ANALYSIS
This falls squarely into the category of “Just because you can does not mean you should.” Joseph Montoya, the Deputy Director of Health, Housing and Homelessness shows a real level of arrogance when he said this:
We wanted to know if we had people interested in developing affordable housing, and of course, in this case, we can give the property away. … Anytime you’re giving away free land, I think that’s a win-win. … That’s the incentive right there.”
POOR STEWARDS OF CITY ASSETS
Keller and Montoya are poor stewards of city assets when they simply want to just give away city land to developers. They need to be told in no uncertain terms the city land is NOT theirs to be given away. It’s a “win-win” only for developers and a “lose-lose” for the public. It’s NOT free land. It is land paid for with taxpayer money to become city owned and in turn owned by the taxpayers. It is NOT land that Montoya and Mayor Keller can simply give away to developers as they see fit.
Montoya says “ A lot of [the lots] already have infrastructure on them. All of them are already zoned [for residential development.]” Simply put, vacant land that is already zoned for residential and with infrastructure is a very valuable commodity. Vacant land within the city is also limited, and once it’s developed, it’s developed forever. It also is an asset that will only appreciate in value.
There are other options that Mayor Keller and the Health, Housing and Homelessness Department need to explore other than simply giving away land to local city developers. Those would include long term leases of the land, say for 75 years for the useful life of development, for very minimal consideration, like $100 dollars a year, where the city retains title and ownership of the land. The city could also enter into a joint powers agreement with the state to build affordable housing on the city owned property.
Another major option would be for the City to seek funding from the New Mexico Mortgage Finance Authority to develop the land on its own for affordable housing. On July 24, 2024, the New Mexico Mortgage Finance Authority (NMFA) officials reported on the findings of the state’s most recent housing needs assessment. It outlined how $84.6 million in state funding would be allocated to address those needs. At its May and June meetings, the New Mexico Mortgage Finance Authority Board of Directors approved a $50 million allocation, along with the $34.6 million in state fiscal year 2025 severance tax bond funding. The breakdown includes:
- $26.6 million to create more housing.
- $20 million for down payment assistance.
- $10 million to preserve existing affordable housing.
- $1 million to create stable housing environments.
- $27 million in reserve to use based on particular demands.
Although time has elapsed, and the funding is likely no longer available, the MFA will continue with its efforts to fund projects for affordable housing.
The link to full, unedited MFA housing needs assessment is here:
https://drive.google.com/file/d/1SzAnXnO_nHI5ef3onk_5tPKhKrIaIQLc/view
The Keller Administration needs to withdraw the “Request for Interest” immediately and explore other options.
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POSTSCRIPT
The City of Albuquerque has city ordinances regarding the disposal of surplus property, including real property and personal property. These ordinances dictate how properties are determined to be surplus, how they are valued, and how they are sold or disposed of. Following are the ordinances:
5-2-1 DISPOSAL OF REAL PROPERTY NOT ESSENTIAL FOR A MUNICIPAL PURPOSE.
Prior to the sale, exchange, or donation of real property belonging to the city, such real property shall be determined to be not essential for a municipal purpose as provided herein. After such a determination has been made, the real property may be disposed of by the Mayor in the following manner:
(A) Prior to disposal of real property, the Mayor shall cause an appraisal to be made by the Property Management Division or a qualified private appraiser. No real property shall be sold or exchanged for less than 90% of its appraised value.
(B) Real property having a value of not more than $500 may be sold for cash at a public or private exchange without notice.
(C) Real property having a value of more than $500 may be:
(1) Sold at a public or private sale to the highest bidder meeting the published terms and conditions of the sale after publishing a notice of such sale in a local newspaper of general circulation once each week for two consecutive weeks prior to the sale.
(2) Exchange at a public or private exchange after publishing a notice of such exchange in a local newspaper of general circulation once each week for two consecutive weeks prior to the exchange.
(D) Real property of any value may be sold to, exchanged with or donated to the state, any of its political subdivisions or to the Federal government after a determination by the Mayor or Council as provided herein that such sale, exchange or donation is in the best interests of the city.
(E) Real property acquired by the city through lien or mortgage foreclosure may not in the discretion of the Mayor or his designated representative be subject to this article in the event the sale of the property is to the foreclosure owner of same, and it is or was the owner’s residence, and provided further than any such sale shall be for not less than the principal and interest due.
(F) Contracts for disposal of city real property pursuant to divisions (C) and (D) of this section shall be submitted to the Council by the Mayor at the first regularly scheduled Council meeting after their execution when the value of the real property is more than $50,000. Procedure shall be as follows:
(1) All contracts which are submitted to the Council in accordance with the requirements of this section shall be supported by the current appraisal relied upon to determine the value of the city property, the Council’s determination that the property is not essential for a municipal purpose, and a description of the disposal process and the other offers received.
(2) The Council may approve, take no action or disapprove the contract.
(3) If the Council disapproves by majority vote of the members present and voting, the contract shall be void.
(4) The Mayor may withdraw the contract at any time from the Council or may present revisions thereof. In the event of withdrawal, the contract shall be a nullity. In the event of revision, the provisions of this section shall apply to the same extent as if a new contract were being submitted.
(’74 Code, §5-3-1) (Ord. 3-1975; Am. Ord. 36-1976; Am. Ord. 59-1979; Am. Ord. 23-1983; Am. Ord. 22-2007)
5-2-2 DETERMINATION THAT REAL PROPERTY IS NOT ESSENTIAL FOR A MUNICIPAL PURPOSE.
(A) Administrative Real Property Review Board. Prior to making the determination that a piece of real property is not essential for a municipal purpose, the Administrative Real Property Review Board shall analyze said property and make a recommendation regarding whether the property is essential for a municipal purpose to the person who shall make the determination, as provided for in this article. The Administrative Real Property Review Board shall be composed of the Director of the Department of Finance and Management or his designated representative, the Property Manager, the City Attorney or his designated representative, the Director of the Planning Department or his designated representative and, if appropriate, a representative of the department by which the property in question was to have been used. The Review Board shall consider the adopted Albuquerque/Bernalillo County Comprehensive Plan and related master plans and expected city development patterns as a basis for their recommendation. The Review Board shall transmit a written analysis with their recommendation.
(B) For real property owned by the city having a value of not more than $10,000, the determination that the real property is not essential for a municipal purpose shall be made by the Mayor.
(C) For real property owned by the city having a value of more than $10,000, the determination that the real property is not essential for a municipal purpose shall be made by the Council.
(’74 Code, § 5-3-2) (Ord. 3-1975; Am. Ord. 36-1976)
5-2-3 REAL PROPERTY NOT ESSENTIAL FOR A MUNICIPAL PURPOSE TO BE PROPERLY ZONED PRIOR TO SALE.
After real property belonging to the city has been determined not essential for a municipal purpose and prior to its appraisal and disposal, the Planning Department shall review its zoning to determine that the zoning is appropriate in terms of the city’s master plan, in particular the master plan documents which comprise the Albuquerque/Bernalillo County Comprehensive Plan, and the potential use of the property. If the Planning Department determines that the zoning is appropriate, it shall so notify the Mayor. If the Planning Department determines that the zoning is not appropriate, it shall initiate a zone change to an appropriate zone, and it shall notify the Mayor of the final action taken on this request. No real property shall be appraised or disposed of until the Planning Department has notified the Mayor that it is appropriately zoned or until the Planning Department has notified the Mayor of final action on its request for a zone change.
(’74 Code, § 5-3-3) (Ord. 36-1976)
5-2-4 LEASING OF REAL PROPERTY OWNED BY THE CITY.
(A) Leases or other conveyances for a specified term of an interest in real property owned by the city or amendments to such leases or other conveyances shall be submitted to the Council by the Mayor after negotiation or prior to bidding when:
(1) The term of the lease or other conveyance is proposed to be in excess of two years. For the purposes of this division, TERM OF CONVEYANCE shall include not only the initial term but also any option to renew where the option is at the sole discretion of the lessee; or
(2) The term of the lease or other conveyance is proposed to be in excess of one month and the income or other consideration to be received by the city is proposed to be in excess of $500 per month. For purposes of this section, an easement granted to a utility operating under a franchise granted by the city shall not be considered as a lease or other conveyance.
(B) All proposals which are submitted to the Council in accordance with the requirements of this section shall be supported by a message setting out the circumstances, benefits, responsibilities and advantages relative thereto.
(C) The Council may approve, take no action or disapprove the proposal.
(D) If the Council disapproved by majority vote of the members present and voting, the proposal may not be entered into.
(E) The Mayor may withdraw the proposal at any time from the Council and may present revisions thereof. In the event of withdrawal, the proposed lease or other such conveyance shall be a nullity. In the event of revision, the provisions of this section shall apply to the same extent as if a new proposal were being submitted.
(’74 Code, § 5-3-4) (Ord. 71-1976; Am. Ord. 9-1987; Am. Ord. 58-1990; Am. Ord. 22-2007)
5-2-5 ACQUISITION OF REAL PROPERTY.
(A) The Mayor is authorized to enter into contracts for the acquisition of any interest in real property, subject to the approval of the Council as outlined herein. Except in emergencies, the Mayor shall enter into such contracts only when the Council has authorized purchase of the specific parcel or a parcel of its type and location category; such Council authorization is evidenced by the fact that:
(1) Sufficient money, designated for acquisition of the property, has been previously appropriated by the Council; or
(2) Acquisition of such property is specified in the current two-year Capital Improvements Budget; or
(3) The city-owned property to be utilized as consideration in an exchange has previously been declared nonessential for municipal purposes, pursuant to §§ 5-2-1 and 5-2-2, and the Council resolution declaring the property nonessential authorized the city property to be used as consideration to acquire the specific parcel or a parcel of its type and location category.
(B) The contracts, including those accomplishing trades, shall be submitted to the Council by the Mayor at the first regularly scheduled Council meeting after their execution when:
(1) The value of the real property is more than $50,000; and
(2) Sufficient money to be used to acquire the real property has not been previously appropriated by the Council.
(C) All contracts which are submitted to the Council in accordance with the requirements of this section shall be supported by a message setting out the circumstances, benefits, responsibilities and advantages relative thereto.
(D) The Council may approve, take no action or disapprove the contract.
(E) If the Council disapproves by majority vote of the members present and voting, the contract shall be void.
(F) The Mayor may withdraw the contract at any time from the Council or may present revisions thereof. In the event of withdrawal, the contract shall be a nullity. In the event of revision, the provisions of this section shall apply to the same extent as if a new contract were being submitted.
(G) Open Space Acquisitions. The Mayor may from time to time, or shall upon request of the Council, issue solicitations seeking competitive offers to sell the properties on the Council-approved city open space priority acquisition list.
(’74 Code, § 5-3-5) (Ord. 32-1980; Am. Ord. 9-1983; Am. Ord. 22-2007; Am. Ord. 2016-008)
5-2-6 LEASING OF REAL PROPERTY BY THE CITY.
(A) Leases or other conveyances, except construction and utility easements, for a specified term of an interest in real property to the city or amendments to such leases or other conveyances shall be submitted to the Council by the Mayor after negotiation when the term of the lease or other conveyance is proposed to be in excess of six months and the income or other consideration to be paid by the city is proposed to be in excess of $500 per month.
(B) All proposals which are submitted to the Council in accordance with the requirements of this section shall be supported by a message setting out the circumstances, benefits, responsibilities and advantages relative thereto.
(C) The Council may approve, take no action or disapprove the proposal.
(D) If the Council disapproves by a majority vote of the members present and voting, the proposal may not be entered into.
(E) The Mayor may withdraw the proposal at any time from the Council and may present revisions thereof. In the event of withdrawal, the proposed lease or other such conveyance shall be a nullity. In the event of revision, the provisions of this section shall apply to the same extent as if a new proposal were being submitted.
(’74 Code, § 5-3-6) (Ord. 27-1990; Am. Ord. 22-2007)
5-2-7 HOME AND BUSINESS PROPERTY PROTECTION.
(A) Title. This section shall be entitled the Home and Business Property Protection Ordinance.
(B) Findings. The Council finds that:
(1) In the 2005 decision entitled Kelo, et al. vs. City of New London, Connecticut, et al., 545 U.S. ___ (2005), the United States Supreme Court upheld the taking of private property for uses that would promote job growth and increase tax revenues.
(2) While the revitalization of urban areas, the elimination of blight, and economic development are laudable goals, a municipality’s actions to achieve these goals should not result in taking occupied homes and property occupied by a business from its citizens.
(3) The Kelo case expanded the purpose of eminent domain beyond the purposes contemplated by the State Metropolitan Redevelopment Code, the State Eminent Domain Code, and the city’s Metropolitan Redevelopment Ordinance.
(4) The Council will not support the use of its powers of eminent domain to take an occupied residence or property occupied by a business that is not blighted or a public nuisance for a purpose that is justified only by “economic development.”
(C) Council approval required. Any eminent domain action initiated by the city justified only by economic development that would result in the total taking of an occupied residential property, or property occupied by a business, under the Fifth Amendment of the United States Constitution and state law must be approved by the City Council prior to its initiation.
(D) Conditions for approval. The Council shall not approve a taking of an occupied residence or property occupied by a business unless it first finds that the eminent domain action is for a public purpose as set forth in the State Metropolitan Redevelopment Code or the State Eminent Domain Code.