Mel B. O’Reilly Guest Opinion Column: The Increased Property Tax Consequences Of “Up Zoning” Amendments To City’s Zoning Laws; COMMENTARY: Contact Your City Councilor And Voice Your Opposition To Integrated Development Ordinance Amendments

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The Integrated Development Ordinance (IDO) is essentially all  of the city zoning laws on how properties are zoned for residential, commercial or industrial use. The Integrated Development Ordinance includes zoning and subdivision regulations to govern land use and all development within the City of Albuquerque. It establishes the City’s system of planning citywide. The IDO allows the Albuquerque City Council to amend it every two years. In the last two years, this amendment process has resulted in 139 amendments to the IDO.

With the election of Mayor Tim Keller to a third 4 year term and a new Albuquerque City Council, there is a major controversy brewing city wide and on the Albuquerque City Council involving Mayor Tim Keller, his Planning Department and a few members of the Albuquerque City Council. They want to enact another wave of blanket amendments to the Integrated Development Ordinance (IDO). Mayor Tim Keller and the City Planning Department want to double or triple housing density in established neighborhoods to address what they claim is the City’s affordable housing shortage.

The city council is now considering another wave of 140 amendments to the Integrated Development Ordinance (IDO). The biggest and most dramatic amendments would be to  “up zone” virtually all residential homes and residential lots in established neighborhoods. To put this in perspective, residential zoning covers 27% of the city’s land and 68% of its properties. City officials have said that 68% of the city’s existing housing is single-family detached homes with 120,000 existing residential lots with already built homes. The city’s faulty logic is that doubling or tripling density on 120,000 existing residential lots will flood the market and make available more affordable housing. The false presumption being made is that existing property owners want and can afford to double or triple density on their properties and if not investors or developers will do it.

If approved by the city council, townhomes, duplexes and apartments could be built in every established neighborhood in Albuquerque. The zoning amendments would allow construction of apartments and small businesses like “bodegas”, small  convenience stores, coffee shops and restaurants as permissive uses on all  corner residential lots without requiring city approval or zoning change applications.

Every single residential property in established neighborhoods would be re-zoned for permissive use requiring no city applications. Adjacent residential property owners would have no rights to oppose, contest nor appeal “up zoning” construction which will likely result in  adjacent property owners suing  to enforce “restrictive covenants” and perhaps class action lawsuits against the city.

What has not been addressed and what the Albuquerque City Council needs to  discuss is what impact up zoning will have on residential real property values for property tax assessment. The taxable value of a property is 33 1/3% of the assessed value as determined by the Bernalillo County Assessor.

The State of New Mexico property tax code is clear. Under the State of New Mexico property tax code, Section 7-35-1, NMSA, residential property assessments may NOT rise more than 3% per year unless the property changes ownership, is improved or is rezoned.

The below guest opinion column addresses head on the  increased property tax consequences of  the “up zoning amendments” to the city’s zoning laws known as the Integrated Development Ordinance.

GUEST OPINION COLUMN BY ATTORNEY MEL B. O’REILLY

Private attorney Mel B. O’Reilly has submitted the following guest opinion column to be published on www.PeteDinelli.com on the potential property tax consequences of the IDO up zoning amendments.  His guest column is being published as a public service announcement in an effort to educate the public and the City Council. Mr. O’Reilly has given his consent to publish his article with no compensation.

BIOGRAPHY

Mel B. O’Reilly of The Lawyers O’Reilly PC is an Albuquerque attorney who has practiced law continuously since 1971. He has represented clients in civil and criminal matters and trials. His clientele has included individuals, banks, corporations, partnerships, and estates and trusts. He has handled matters involving real estate  development, subdivision, planning and zoning, representing both developers and investment property owners.

THE PROPERTY TAX CONSEQUENCES OF PLANNING AND ZONING AMENDMENTS TO INTEGRATED DEVELOPMENT ORDINANCE. 

The proposed amendments to the City of Albuquerque’s Integrated Development Ordinance (IDO) make changes that will: 1) Increase the appraised value of residential property resulting in a tax increase; and 2) Deprive people of the right to object to a land owner’s desire to redevelop property to serve as a commercial business or multi-family development.

The proposed amendments will allow an owner of property zoned and developed as residential property to redevelop their land to a higher use by converting the property to a multi-family development by splitting an existing home into a duplex or by converting the property into a condo or townhome development.

Under the proposed amendments, my understanding is that an owner could put in a commercial business such as a bodega, tiendita, or small store.

And if you don’t think that your neighborhood can handle the increased traffic, water, and sewer demands, too bad. The proposed amendments eliminate your right to object to any developer’s redevelopment whim.

Even if an owner does not make any changes to his or her own real property, the proposed amendments give them the right to build and thus triggers the county assessor’s duty to ensure that property is assessed at its current and correct market value. So if a property is currently assessed as a single-family residential property and can now lawfully accommodate a storefront, the county assessor would need to reevaluate the property for property tax assessment purposes.

It doesn’t matter if an individual property owner actually redevelops their property. The mere fact that they could do so subjects the property owner to a change in assessed value because of the change in permissive use and zoning.

State law requires that all property subject to valuation for property taxation purposes be classified as either residential property or nonresidential property. NMSA 1978, § 7-36-2.1A NMSA 1978.

Residential property in New Mexico has a special method of valuation that provides that the value of the property as appraised in 2001 can increase year-over-year by no more than three percent. NMSA 1978, § 7-36-21A. This valuation structure keeps a long-time owner’s property taxes low, even when the real estate market value of property increases, and enables people to continue living in the homes they own.

But that year-over-year limitation goes away if a residential property owner builds structures on their property or if the use or zoning of the property has changed since the preceding year. NMSA 1978, § 7-36-21A. Under state law, a property’s predominant use determines whether it is taxed a residential or nonresidential property. See, NMSA 1978, 7-36-2.1B and NMAC 3.6.5.8C.

But enough about the effects on taxation.

Let’s talk about the livability of our community.

Albuquerque’s development ordinances were crafted to preserve the views of the mountains and our skies. The neighborhood amenities required by law were designed for single family density and use. The proposed amendments relax parking requirements, will increase street and pedestrian traffic, and will increase the burden placed on our water, drainage, and sewer systems.

And if a neighborhood’s school can only accommodate so many students, where are the extra classrooms going to be built to accommodate an increase in the student population?

Will fire stations, parks, playgrounds, police service, and other amenities and services be able to match the increased demands wrought by increased traffic and population density? Who will pay for new infrastructure, police stations, fire stations, water mains, drain and sewer lines, schools, curb cuts, road construction and repair, and capital outlay facilities.

As it stands now, the burden is on the redeveloper and they have to seek approval before redeveloping their lot. The proposed amendments grant the redeveloper the permissive use to redevelop their property and strip you of your right to object or appeal.

If the proposed amendments pass and you think a neighbor’s plan to put in townhomes on an existing single-family lot is going to negatively impact your community, then you’ll only be able to look to your neighborhood’s restrictive covenants and hire an attorney to file a lawsuit.

Please contact your City Councilor and voice your concerns.”

Sincerely yours,

Mel B. O’Reilly

Attorney At Law

NOTICE OF CITY COUNCIL LUPZ MEETING

The next meeting of the City Council LUPZ committee will be held on January 28 in the City Council Chambers in basement of city hall commencing at 5:00 p.m. You can sign up to speak at the meeting the day before by going to the City Council web page.

The emails to contact all 9 City Councilors followed by their Policy Analyst to voice your opinions are:

Please contact your city council and tell them to vote no on all the IDO amendments.

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About Pete Dinelli

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.