On October 25, KRQE News 13 reported a  Larry Barker follow-up investigation on the reinstatement of  APD Lieutenant Jim Edison. The story is as hard hitting as it gets and raises more than a few disturbing questions. Below is the full transcript of the news story followed by the link to review the new account:

“ALBUQUERQUE, N.M. (KRQE) – It is a well-documented case of high-level wrongdoing at the Albuquerque Police Department. While assigned to the Chief’s office, Lieutenant Jim Edison pocketed tens of thousands of dollars in illicit overtime. Over a 12-month period, the lieutenant was paid $242,758. That’s more than the police chief and even the mayor.

It began in 2020 after Lt. Edison was tapped to lead APD’s COVID-19 response. His duties included coordinating testing, contact tracing, compiling stats, and responding to virus-related emails and phone calls. Even though his assignment was a day shift desk job, Lt. Edison padded his pay with thousands of hours in time and a half call-out overtime. Homicide Detectives receive call-out O/T when they respond after hours to a crime scene. Lieutenant Edison claimed call-out overtime for after-hours emails and phone calls. He told a supervisor he was allowed two hours of call-out overtime for any phone call he received outside regular working hours.

For example, Saturday, January 16, 2021. Edison hit up taxpayers 12 hours of overtime for making phone calls and sending emails on his day off.

January 22, 2021. The lieutenant documented seven minutes of off-duty work and claimed eight hours of overtime.

Sunday, January 31, 2021. Edison accounted for 22 minutes of work and claimed ten and a half hours of overtime.

Edison put in for overtime hours practically every day for a full year, even Christmas. On December 25, 2020, Edison claimed eight hours O/T. And there must have been some kind of email emergency on New Year’s day 2021 because, instead of celebrating, the lieutenant said he was doing police work and claimed 11 hours of overtime.

Last year, APD launched a series of Internal Affairs investigations aimed at the lieutenant’s timecard practices. In a memo from an Internal Affairs Investigator, Edison was informed, “It is alleged you have committed fraud by being paid over 40k for the first two months of 2021.”

Internal Affairs informed Chief Harold Medina, “…a reasonable likelihood of a criminal prosecution exists against Lt. Edison.” Following extensive investigations, IA Investigators concluded Lt. Jim Edison had violated numerous APD Codes of Conduct, Rules, and Regulations.

Earlier this year, then Interim Superintendent For Police Reform, Eric Garcia, told KRQE News 13 that Edison’s violations were “very serious.”

“Lt. Edison decided to claim overtime when it wasn’t appropriate. Lt. Edison wasn’t truthful with his supervisor. … He was abusing the system,” Chief Medina said in a February interview.

Edison was fired from APD last November. Because any police officer who violates New Mexico police standards can have their Law Enforcement Certification revoked, APD is required to report Edison’s misconduct to New Mexico’s Law Enforcement Academy for investigation. “The relationship that exists between the citizens of the state of New Mexico and the licensed professionals who are charged with delivering public safety to them is critical. Public trust in those licensed professionals is paramount,” said Benjamin Baker, the New Mexico Law Enforcement Academy Interim Director.

(New Mexico Law Enforcement Academy Letter to Chief Medina. Click the image to read full letter.)

APD’s leadership violated state law by failing to report Edison’s misconduct to the Law Enforcement Academy. “I’ve corresponded with the leadership at the City of Albuquerque Police Department, alerting them to this matter being brought to my attention … and the absence of a filed complaint from their office with the (Academy) Board,” said Benjamin Baker.

In late August, APD finally reported Jim Edison’s misconduct to the Law Enforcement Academy. His Police Officer Certification is under review by the Academy’s Board.

End of story? Not quite. You see, he’s back. In June, APD rehired Jim Edison. Today, he’s a police Lieutenant assigned to the Airport. And what about that documented timecard misconduct? The city wiped it clean like it never occurred.

Here’s what happened. Edison appealed his firing to the City Personnel Board. However, after he threatened to sue the city for civil rights violations, APD did an about-face and apparently decided Edison’s misconduct wasn’t so bad after all. City officials negotiated an out-of-court settlement behind closed doors. Jim Edison was reinstated retroactively to November with full back pay and benefits. And, just to make sure there are no hard feelings, the city handed Edison something extra, a bonus check for $20,000.

As part of the Settlement Agreement, Edison will be demoted and his misconduct discipline will be reduced from termination to a two-week suspension. Disciplinary actions arising from the timecard wrongdoing will be removed from his personnel record.

“I’ve never seen anything like this,” says former police officer Tom Grover. Grover is an attorney specializing in police misconduct cases. “It’s a public record. I don’t think you can just make it disappear. I’ve never seen a disciplinary record be removed. They did the investigation. There were findings. There was a final decision to discipline. It just goes away?” Grover said.

(Click the image to read the Full and Final Settlement and Release of Claims made and entered into by and between Jim Edison and the City of Albuquerque.)

Jim Edison’s firing last year was based on violations of APD’s internal Codes of Conduct. Because Edison’s timecard activity may violate state statutes, APD referred the matter to the Attorney General for a criminal investigation. So will Jim Edison be charged with a crime? We may never know. As part of the Settlement Agreement, APD pledged not to refer allegations of Edison’s misconduct to outside law enforcement agencies. And if a referral has already been made, APD must retract the referral.

“I thought, how strange is this? How can you withdraw a complaint of commission of a crime,” says retired state prosecutor Steve Suttle. Suttle says, in his 30-year career, he’s never seen a provision like that. “Facts are facts. And if there are facts here, after investigation, that reveal acts of crimes, the D.A. or the A.G. is perfectly within their power to pursue those with the bringing of charges or an indictment,” Suttle said.

https://www.krqe.com/news/larry-barker/apd-overtime-scandal-lt-accused-of-bilking-taxpayers-reinstated/

BACKGROUND OF THE INVESTIGATION

On July 1, it was reported that APD Lieutenant Jim Edison who was fired in November 2021 for overtime pay abuse had been reinstated by the city at the same rank pursuant to a settlement reach between Edison and the City. Edison had been with the department for 14 years. He was terminated after an Internal Affairs investigations found he had claimed more overtime hours than he had worked, that he lied to investigators and that he retaliated against the supervisor who initiated the investigation into his conduct. Edison appealed his termination by APD alleging he did nothing wrong and that he was entitled to the overtime claimed and paid.

https://www.abqjournal.com/2513251/apd-lieutenant-fired-in-scandal-reinstated-ex-accusations-of-overtim.html

Lieutenant Jim Edison’s alleged overtime pay abuse dates back to early 2020 during the first days of the pandemic. At the time, he was transferred to the Chief’s Office to head up APD’s COVID-19 response. Edison was responsible for coordinating testing, contact tracing, pandemic-related stats, emails and phone calls. Edison’s job in the Chief’s Office was primarily administrative desk work. When he was transferred to the Homeland Security Division, his new commander raised questions about the hours he was claiming.

PREVIOUS KRQE NEWS 13 INVESTIGATIVE REPORT

According to a March 14, 2021, KRQE 13 Investigative Report, over the course of one year, Lieutenant Jim Edison was paid $242,758 which consisted of a base pay and overtime pay. To put this staggering amount into perspective, hourly based pay for APD Lieutenants in 2020 and 2021 was $40 an hour or $83,200 a year. In other words, Edison was paid $159,558 in overtime in addition to his $83,200 base pay resulting in $242,758 paid in the one year reviewed. Edison was paid $186,944 in 2020 and $173,672 in 2021. In 2020, more than $95,000 was paid in overtime.

Edison was paid upwards of 3 times his base pay all because of overtime which is paid at the rate of time and a half. KRQE reported that in order for Lieutenant Jim Edison to be paid $242,758 yearly figure in 2021, Edison “cheated” on his overtime pay claims every day for a full year. Even though Edison’s overtime pay claims violated APD personnel rules and regulations, APD’s top command staff in the chief’s office failed to oversee it and approved it without any questions.

https://www.krqe.com/news/larry-barker/worst-ive-seen-apd-overtime-scandal-uncovered/?fbclid=IwAR2TIlXiLXq-846jXOXDUDGq5Yi59yUVGkaiGMJWrc4A0eRKVX6acvV__Qg

WHAT THE INTERNAL AFFAIRS INVESTIGATION FOUND

The Internal Affairs investigation found that Lieutenant Jim Edison was frequently claiming 2 hours or more of overtime for any task he did outside of work hours. An example given is that he would send a master spreadsheet of COVID-19 numbers to his supervisor every morning around 3 a.m. and claim two hours of overtime when the actual time worked was routinely under half an hour. The Internal Affairs investigator concluded that “overall, Lt. Edison could have combined work or completed [his work] during his shift to cut down on overtime.”

The Internal Affairs investigation found that:

“the department failed to adequately re-address and supervise Lt. Edison’s behavior in January 2021 and February 2021, which allowed Lt. Edison to continue to violate the same and additional policy violations.”

Internal Affairs also found that Deputy Chief Michael Smathers failed to ensure Edison was correctly coding his overtime hours and failed to identify that what he was claiming was not within department policy. Smathers received an 8-hour suspension and a letter of reprimand.

CITY SETTLEMENT TERMS WITH EDISON

Edison appealed his termination and reached a settlement agreement with the city in May. Edison’s private Attorney Tim White said Edison was reinstated and was assigned to the Aviation Department.

Edison threatened to file a lawsuit against the city for wrongful discharge and retaliation based on alleged violations of his civil rights and the New Mexico Whistleblower Protection Act.

The major terms of the settlement agreement negotiated between the city and APD Lieutenant Jim Edison include the following:

1.  The city agreed to withdraw its decision to terminate Edison and removed the discipline from his record.

2.  The city agreed not to refer allegations of criminal conduct to any outside law enforcement agency agree if a referral had already been made, APD must retract the referral.

3.  The city agreed to pay all of Edison’s his back pay since the date of his termination and agreed to pay Edison an additional $20,000. At the time of his termination Edison was paid $40 an hour or $83,200 a year. According to the city’s transparency portal, Edison is now making $43.20 per hour and has earned more than $50,000 so far this year which includes his back pay.

4.  Although Edison returned to the department as a lieutenant, he agreed to “self-demote” and undergo an audit of his previous pay records to determine whether he was overpaid. No later than November 18 Edison will “voluntarily and irrevocably demote to the rank of sergeant or to patrol officer” and he will not be eligible for any promotions.

5.  Instead of the 120-hour and 80-hour suspension he was initially handed, Edison agreed to serve a 96-hour suspension with 16 hours held in abeyance for six months as long as he isn’t subject to further discipline.

6.  It was agreed that the the city will conduct an independent audit of Edison’s pay records from February 2020 through May 21, 2021, and “determine whether his claims for overtime were consistent with the law.” If the audit determines Edison was overpaid “the city will first confer with employee for reimbursement and may thereafter pursue collection of overpaid amounts through appropriate judicial process.” If the audit finds that Edison was underpaid, he will be paid as required by the City and Police Union Collective Barging Agreement (CBA).

7.  The settlement perovides that Edison “retains all rights to deny audit findings and to oppose reimbursement for any reason.”

8.  Edison denies in the settlement he committed any misconduct, and the city denies all allegations he had raised against it.

At the time when the settlement was reported on, Chief Harold Medina said that Edison “wasn’t exactly breaking the law” when it came to his overtime claimed. Medina said Edison was taking advantage of the union collective bargaining contract which allows the management positions of Lieutenant to be part of the police union, which violates New Mexico statutory law that prohibits management to join unions.

The collective bargaining agreement between the city and the police union includes patrol officers, detectives, sergeants and lieutenants. The police union contract provides that when officers are called into work outside of regular hours, they are guaranteed to be paid a minimum of two hours at the rate of time and a half, no matter the actual time worked, which could be a matter of a few minutes.

The link to the quoted news source material is here:

https://www.abqjournal.com/2513251/apd-lieutenant-fired-in-scandal-reinstated-ex-accusations-of-overtim.html

TWO SEPRATE COMPLAINTS INVESTIGATED

An anonymous complaint to Albuquerque’s Civilian Police Oversight Agency (CPOA) launched an Internal Affairs investigation into Lieutenant Jim Edison’s overtime pay abuse. The CPOA investigator concluded Lieutenant Jim Edison violated rules, regulations and codes of conduct by cheating on his overtime. He was given a two-week suspension by APD Chief Harold Medina.

Despite APD’s investigation, Edison continued to misrepresent overtime on his timesheets which led to a second Internal Affairs investigation. Edison’s supervisor was Deputy Chief Mike Smathers. Even though Edison’s daily overtime clearly violated APD policy, Deputy Chief Smathers never questioned the overtime work claimed by Edison on his timesheet and routinely approved his time on the department’s payroll system.

The Internal Affairs Investigator concluded Deputy Chief Smathers violated multiple rules and regulations by failing to review Edison’s timesheets. Smathers received a one-day suspension for his conduct as a result of the civilian police oversight agency investigation.

In a second Internal Affairs probe, the Investigator concluded Smathers violated APD rules and policy a second time by failing to review Lt. Edison’s timesheets. According to internal affairs Detective Anastacio Zamora:

“There is no evidence Deputy Chief Smathers conducted any follow-up with anyone [except Lt. Edison] to ensure things were done correctly.”

Deputy Chief Smathers was given a written reprimand for his role in the Internal Affairs case. Albuquerque’s Superintendent for Police Reform, Sylvester Stanley, who retired after 8 months on the job, made the final decision to discipline Deputy Chief Smathers.

APD Police Chief Harold Medina bent over backwards to defend Deputy Chief Smathers saying the one-day suspension was appropriate. Medina had this to say:

“Up here on the fifth floor of the Police Department, the executive staff, we’re so busy that to go through the fine details of looking through somebody’s timesheets is not something that we’re going to be carving out time for. … Jim Edison deceived Deputy Chief Smathers and Deputy Chief Smathers took accountability for that and was disciplined.

The biggest thing that Deputy Chief Smathers did wrong is he had faith and belief in Jim Edison. Jim Edison betrayed that trust. And it’s very difficult for me to paint a negative brush on Deputy Chief Smathers for being a good leader, respecting his people, listening to his people and believing in his people.”

https://www.krqe.com/news/larry-barker/worst-ive-seen-apd-overtime-scandal-uncovered/?fbclid=IwAR2TIlXiLXq-846jXOXDUDGq5Yi59yUVGkaiGMJWrc4A0eRKVX6acvV__Qg

MORE THINGS CHANGE, THE MORE THEY STAY THE SAME

During the last 10 years, the Albuquerque Police Department has consistently gone over its overtime budget by millions. In fiscal year 2016, APD was funded for $9 million for over time but APD actually spent $13 million. A March 2017 city internal audit of APD’s overtime spending found police officers taking advantage of a system that allows them to accumulate excessive overtime at the expense of other city departments. A city internal audit report released in March 2017 revealed that the Albuquerque Police Department spent over $3.9 million over its $9 million “overtime” budget. For the last 3 years, APD has exceeded its overtime budget by as much as $4 million or more each year. In 2019, APD spent $11.5 million paying sworn police overtime when the budget was $9 million.

COMMENTARY AND ANALYSIS

It is very difficult to accept that as part of the civil Settlement Agreement that the  Mayor Tim Keller Administration and APD would agree  not to refer allegations of criminal conduct to any outside law enforcement agency.  What is even more disgusting is that the Keller Administration and APD would agree if a referral has already been made, APD would retract the referral.  What also does not pass the smell test is that an additional $20,000 was added to the settlement, which was on top of payment of backpay.  The settlement ultimately stands for the proposition that APD sworn officers who engage in overtime pay fraud and who collect thousands in overtime pay are “above the law” and will not be prosecuted for their misconduct.

APD Police officers earning excessive overtime is nothing new. It has been going on for years and is very common knowledge. From a personnel management standpoint, when you have a select few that are taking home the lion’s share of overtime, it causes moral problems with the rest. Excessive overtime paid is a red flag for abuse of the system, mismanagement of police resources or the lack of personnel. The answer to end the historical APD overtime pay abuses once and for all has always been to initiate criminal prosecutions for fraud and  civil lawsuits for reimbursement of fraudulent overtime pay. That will never happen as long as Mayor Tim Keller and Chief Harold Medina have no problem with the conduct.

When Tim Keller was New Mexico State Auditor, he carefully crafted a public persona of a “white knight” government watch dog who combated what he called “waste, fraud and abuse”, so much so that he established a fraud division within the State Auditor’s Office.  After serving less than 2 years of a 4-year term as State Auditor, Keller announced for Mayor in 2017 and rode his public persona as a white knight to a landslide victory.  As State Auditor, Keller relished the publicity over his efforts to combat “waste fraud and abuse” in government and by government officials. As Mayor of Albuquerque, Tim Keller refuses to hold his own police department accountable for “waste, fraud and abuse” in police overtime.

The settlement has raised more than a few eyebrows within APD and city hall observers.  Rumors circulating at city hall are that APD Lieutenant Jim Edison has very damaging and very sensitive information on the conduct of APD Chief Harold Medina and Mayor Tim Keller that he has witnessed and has covered up.  The public will never know the truth of the rumors given the confidentiality provisions of the settlement.

Notwithstanding the settlement, the Bernalillo County District Attorney and the New Mexico Attorney General are not parties to the settlement. Neither the District Attorney nor the Attorney General are bound by the terms of the settlement and they are totally within their rights and authority to conduct a criminal investigation into the matter and even charge for overtime fraud if they wanted to.

A criminal investigation is not at all likely to happen anytime soon, if at all,  given the fact that Bernalillo County District Attorney Raul Torrez is now  running for Attorney General and Attorney General Hector Balderas is leaving office on January 1, 2023.  Besides, for the last 2 years during this whole sordid mess, both have chosen to ignore the APD overtime pay abuse scandals even after the City  and the New Mexico State Auditor has issued audits confirming what has happened and essentially delivering completed investigation to them both.

On October 25, news media outlets and social media and political bloggers made a big deal out of a poll on the race for the governor in New Mexico that gave Republican Mark Ronchetti a slight edge in the race. The poll was conducted by the Trafalgar group which is a political and corporate survey company. The poll was conducted October  17-19 with a margin of error of 2.9%.

Based on their survey, the poll gave Republican Mark  Ronchetti a 1%  lead in the race with 46.6%  of the vote compared to 45.5% for Governor  Michelle Lujan Grisham. The poll has a nearly 3% margin of error, effectively making the race too close to call. The poll is the first poll ever to show Ronchetti in the lead.

The poll reports 1,077 people who responded. Around 48% were Democrat, 36% were Republican, and 16% either had no affiliation or aligned with another party. What skews the poll is that 58% of people who responded to the poll were Anglo, and only 31% were Hispanic.

The link to the quoted news source is here:

https://www.kob.com/new-mexico/new-poll-puts-ronchetti-ahead-of-lujan-grisham-in-governors-race/

https://www.koat.com/article/poll-reports-ronchetti-ahead-of-lujan-grisham/41770836

PREVIOUS POLLS

As of October 11, there had been a total of 5 polls conducted by the news media in the 2022 race for New Mexico Governor. All 5 polls have Democrat Governor Lujan Grisham leading Republican Mark Ronchetti by as low of only 3% and as high as 16%. Averaging out all 5 of the previous polls reflected that Governor Michelle Lujan Grisham polling average is 48.8% compared to Ronchetti’s 39.2%. Ronchetti never once surpass 40% to 43% in any of the polling which is essentially the Republican base in New Mexico. Lujan Grisham  busted the magic 50% plus one in only 1 polls.

RONCHETTI  FALSE  AD  ATTACKS  JAY MCCLESKEY SPECIALTY

Mark Ronchetti can only be considered a very flawed candidate very much like Donald Trump  given the fact that he is an ultra  right wing TV personality with no government and management experience and given who is running his campaign.

If Republican Mark Ronchetti has in fact closed the gab in the polling, and is now leading, the likely reason is his never ending negative campaign ads often seen run 3 times consecutively on TV stations. One ad accuses the Governor of releasing a prisoner from prison early and then committing murder  and another featuring the grandparents of his murder victim urging her defeat. Ronchetti  ads have been  found to be misleading or false by at least 2 local  news outlets. Instead of aggressively refuting the ads at first with her own campaign ads, an unsuccessful attempt was made to have the ads removed.  The Lujan Grisham campaign is now running ads pointing out the falsehoods in the Ronchetti ads.

The Ronchetti vicious attack ads should not come as any surprise and were expected. Least anyone forgets, Jay McCleskey is Republican Mark Ronchetti’s campaign manager and political consultant. Simply put, Jay McCleskey is the go-to guy for anyone who is Republican running for office willing to spend and do whatever it takes to win an election at any and all costs.

A “political hit piece” is the lowest form of negative campaigning used by all successful bottom feeder political consultants to smear the reputation of an opponent. It’s difficult to respond to a political hit piece, especially at the end of a contentious campaign such as the current Governor’s race  or if an opponent does not have the financial resources to respond to the lies and the liars who tell them.

In New Mexico, McCleskey has elevated the “political hit piece” to an art form. His tactics are often condemned by the public and those who are the target. The problem is that negative campaigning and smear tactics work and has worked for Jay McClesky over too many years and too many campaigns.

Jay McCleskey is New Mexico’s version of Lee Atwater or Karl Rove, two of the most despicable right wing Republican bottom feeders and political consultants and strategists for the Republican Party.  McClesky has even received praises for his work from Karl Rove.  McClesky is known for his negative slash-and-burn tactics to disparage and viciously malign Democrats at all levels and he has been very successful at it in New Mexico for the last 20 years making a very lucrative living.

McClesky managed the successful campaigns of Mayor Richard Berry and Governor Suzanna Martinez as well as numerous campaigns for local and state offices. McClesky is currently managing the campaign of Republican Paul Pacheco for Bernalillo County Sherriff.  Former Republican Governor Susana Martinez was vicious in going after members of her own party who disagreed with her and she did that with Jay Mc Clesky carrying out her orders.

It was reported that Southern New Mexico rancher Scott Chandler, a Republican, settled a defamation lawsuit he filed claiming political consultant Jay McCleskey and the former Republican Governor’s political action committee circulated untruthful mailers about him during the 2016 campaign. On December 15, 2021, the case was settled with McClesky’s insurance company agreeing to pay $375,000 to settle the defamation claims against McClesky.

COMMENTARY AND ANALYSIS

Simply put, the Trafalgar poll accuracy is in serious doubt  because of those who were polled.  The poll was a straight horse race poll and did not go into great detail on the issues that are motivating voters. The poll was weighted with 57% of those polled as being Anglo, which is Ronchetti’s core supporters,  which is 10 points too high. The poll has Hispanic voters at 31% of the projected electorate which is way too low.  Hispanics along with woman voters are the core supporters of Governor Lujan Grisham.  Trafalgar is also Republican funded polling operation.

The only real takeaway from the Trafalgar poll is the race is tightening as Election Day gets closer, but this is expected and normal for New Mexico politics. Political news website Real Clear Politics averaged all the current polling data together. With the inclusion of the Trafalgar survey, the Real Clear Politics average of all the latest polls has Governor Michelle Lujan Grisham leading Ronchetti by 3.7%.  However, it also ranked the race as a toss-up which only confirms that the race  is not over yet.

Early voting has already begun and voter turn out is already high, which likely favors Governor Michelle Lujan Grisham. Reports are that as much of 12% of the projected vote has been cast.

The second and final poll for the Albuquerque Journal on the Governor’s  race will be published this Sunday. It is  the one singular poll that has the potential of ending the race all because of its decades old accuracy.

Since being sworn into office as Mayor on December 1, 2017, Tim Keller has made dealing with the city’s homeless a major priority. The homeless have reached crisis proportions with them becoming far more visible and aggressive by illegally camping in parks, on streets, in alleyways and in city open space,  whenever they want and declining city services. Keller has proclaimed an “all the above approach” to deal with the homeless costing millions. This blog article explores exactly what Mayor Tim Keller is doing to deal with the homeless crisis to implement his “all the above approach” policy. It’s a policy that is nothing more than a shotgun approach to the homeless crisis  and it is failing.

QUANTIFYING CITY’S HOMELESS NUMBERS

Each year the “Point in Time” survey is conducted to determine how many people experience homelessness on a given night in Albuquerque, and to learn more about their specific needs. The PIT count is done in communities across the country. The New Mexico Coalition to End Homelessness (NMCEH)  is contracted by the city to do the survey.

In August, the 2022 the Point In Time (PIT) homeless survey reported that the number total homeless in the city was 1,311 with 940 in emergency shelters, 197 unsheltered and 174 in transitional housing. Surprisingly, the survey found that there are 256 fewer homeless in 2022 than in 2021 which was 1,567.  In 2019, the PIT found 1,524 homeless.

In even numbered years, only sheltered homeless are surveyed for the PIT survey. In odd numbered years, both sheltered and unsheltered homeless are surveyed. The 2022 PIT report provides the odd number years of shelter and unsheltered homeless in Albuquerque for 8 years from 2009 to 2019 and including 2022.  During the last 12 years, PIT yearly surveys have counted between  1,300 to 2,000 homeless a year.  Those numbers are:  2011: 1,639, 2013: 1,171, 2015:1,287,  2017: 1,318, 2019: 1,524, 2021: 1,567 and 2022: 1,311.

https://www.nmceh.org/_files/ugd/6737c5_4ecb9ab7114a45dcb25f648c6e0b0a30.pdf

The PIT survey statistics have never supported the city or charitable provider claims the city has upwards of 5,000 homeless. When the 2022 PIT Survey results were released showing a decline in the number of homeless, the City’s Family and Community Services Department went  out of its way to disparage the results by dismissing it as an “undercount” saying “We need to base our services and solutions on the situation today, not yesterday, or six months ago when the count was taken.” The department likely downplays the results to avoid cuts in its budget and to avoid scrutiny of how the millions of funding is being spent.

What cannot be refuted are the PIT survey statistics over the last 5 years are very consistent.  The survey statistics do not support the contention that the city’s homeless count is near the 5,000 claimed by the private providers who the city has service contracts.

FUNDING INCREASES

On June 23, 2022 Mayor Tim Keller announced that the City of Albuquerque was adding $48 million to the FY23 budget to address housing and homelessness issues in Albuquerque. The City  also announced it was working on policy changes to create more housing and make housing more accessible. The key appropriations passed by City Council included in the $48 million are:

· $20.7 million for affordable and supportive housing
· $1.5 million for improvements to the Westside Emergency Housing Center
· $4 million to expand the Wellness Hotel Program
· $7 million for a youth shelter
· $6.8 million for medical respite and sobering centers
· $7 million for Gateway Phases I and II, and improvements to the Gibson Gateway Shelter facility
· $555,000 for services including mental health and food insecurity prevention

The link to the quoted source is here:

https://www.cabq.gov/family/news/mayor-keller-signs-off-on-major-housing-and-homelessness-investments

In fiscal year 2021 (July 1, 2020 to June 30, 2021) the Family and Community Services Department and the Keller Administration spent upwards of $40 Million to benefit the homeless or near homeless. The 2021 enacted city budget (July 1, 2021 to June 30, 2022 ) for Family and Community Services Department provides for affordable housing and community contracts totaling $22,531,752, emergency shelter contracts totaling $5,688,094, homeless support services contracts totaling $3,384,212, mental health contracts totaling $4,329,452, and substance abuse contracts for counseling contracts totaling $2,586,302.

The link to the 2021-2022 city approved budget is here:

https://www.cabq.gov/dfa/documents/fy22-approved-budget-numbered-w-hyperlinks-final.pdf

Mayor Keller  has increased funding to the Family Community Services Department for assistance to the homeless with $35,145,851 million spent in fiscal year 2021 and $59,498,915 million being spent in fiscal 2022  with the city adopting a “housing first” policy.

Mayor Keller’s 2022-2023 approved budget significantly increases the Family and Community Services budget by $24,353,064 to assist the homeless or near homeless by going from $35,145,851 to $59,498,915.

The 2022-2023 enacted budget for the Department of Community Services is $72.4 million and the department is funded for 335 full time employees, an increase of 22 full time employees.  A breakdown of the amounts to help the homeless and those in need of housing assistance is as follows:

$42,598,361 total for affordable housing and community contracts with a major emphasis on permanent housing for chronically homeless. It is $24,353,064 more than last year.

$6,025,544 total for emergency shelter contracts (Budget page 102.), down $396,354 from last year.

$3,773,860 total for mental health contracts (Budget page105.), down $604,244 from last year.

$4,282,794 total for homeless support services, up $658,581 from last year.

$2,818,356 total substance abuse contracts for counseling (Budget page 106.), up by $288,680 from last year.

The link to the 2022-2023 budget it here:

https://www.cabq.gov/dfa/documents/fy23-proposed-final-web-version.pdf

The 2022-2023 adopted city contains $4 million in recurring funding and $2 million in one-time funding for supportive housing programs in the City’s Housing First model and $24 million in Emergency Rental Assistance from the federal government.

CITY SPENDING PER HOMELESS

The amount the city is spending for services per year per homeless person who are receiving some sort of city services can be calculated for 2022-2023 budget year.

The 2022  Point in Time Report reflects that the number of emergency sheltered homeless is 940 with 174 in “transitional housing” for a total of 1,114.   Therefore, the city is spending a minimum of $15,171.05   per homeless person, per year through the charitable service providers calculated as follows:   $16,900,554 (total of service contracts for 2022-2023) DIVIDED BY 1,114 (940 Emergency Sheltered and 174 Transitional housing) = $15,171.05.

The $15,171.05 per person, per year is for services only by contracted providers and does not include the $4.5 million operation costs for the Westside 24/7 shelter nor the budgeted operating costs for the new Gateway Homeless Shelter when it is fully operational. 

 Further, the amount does not include the $42,598,361 allocated for affordable housing and permanent housing for the near homeless or chronically homeless with the actual number of those receiving city funding  unavailable.

 TWO CITY SHELTERS FOR THE HOMELESS

During the past 5 years, Mayor Keller has established two 24/7 homeless shelters, including purchasing the Loveless Gibson Medical Center for $15 million to convert it into a homeless shelter.

The city is funding and operating 2 major shelters for the homeless, one fully operational with 450 beds and one that will be fully operational by Winter that will assist upwards 1,000 homeless and accommodate 330 a night. Ultimately, both shelters are big enough to be remodeled and provide far more sheltered housing.

WESTSIDE EMERGENCY HOUSING CENTER

It was on October 22, 2019 that Mayor Tim Keller announce that the Westside Emergency Housing Center (WEHC) would become a 24/7 homeless shelter. It is a “one-stop-shop” with service providers providing medical services, case management and job placement services. It costs about $4.5 million a year to operate the shelter with about $1 million of that $4.5 million invested in transporting people to and from the facility.

https://www.krqe.com/news/albuquerque-metro/city-plans-on-expanding-services-at-westside-emergency-housing-center/

The Westside Emergency Housing Center has upwards of 450 beds to accommodate the homeless on any given night. The shelter offers shelter to men, women, and families experiencing homelessness in Albuquerque. While staying at the WEHC, the homeless have access to a computer lab, showers, medical examination rooms, and receive three meals a day. The WEHC is a 24/7 operation and has a staff of 80 to assist those who stay at the shelter.  The shelter does connect men and women to permeant housing and other resources.

GATEWAY HOMELESS SHELTER

Since being sworn in as Mayor on December 1, 2017, Mayor Tim Keller made it known that building a new city operated homeless shelter was his top priority. Keller deemed that a 24-hour, 7 day a week temporarily shelter for the homeless critical towards reducing the number of homeless in the city.

On April 6, 2021, Mayor Tim Keller held a press conference in front of the Gibson Medical Center, formerly the Lovelace Hospital, to officially announce the city had bought the massive 572,000 square-foot building that has a 201-bed capacity, for $15 million.  Keller announced that the massive facility would be transformed into a Gateway Center Homeless Shelter. On September 3, 2022 it was reported that the ABQ Gateway Center will likely to open some time this winter.  According to the 2022-2023 approved city budget,  $1,691,859 has been allocated for various vendors to operate Westside Emergency Shelter Center.

The city is planning to assist an estimated 300 more homeless residents and connect them to other services intended to help secure permanent housing. The new facility is intended to serve all populations of men, women, and families. Further, the city wants to provide a place anyone could go regardless of gender, religious affiliation, sobriety, addictions, psychotic condition or other factors.

The city facility is to have on-site case managers that would guide residents toward counseling, addiction treatment, housing vouchers and other available resources.  The goal is for the new homeless shelter to provide first responders an alternative destination for the people they encounter known as the “down-and-out” calls.

The city estimates 1,500 people could go through the drop-off each year. The “dropoff  for the down and outs” will initially have 4 beds.  It is primarily imagined as a funnel into other services.  While that likely will include other on-site services, city officials say it will also help move people to a range of other destinations, including different local shelters, or even the Bernalillo County-run CARE Campus, which offers detoxification and other programs.

Interior demolition and remodeling of the 572,000 square foot building has been going on for a number of months to prepare the facility for a homeless shelter.  The beds for 50 women as planned and for the first responder drop-off is to come online this winter. The city plans to launch other elements of the 24/7 shelter by next summer.

According to Keller, the city’s plan is to continue adding capacity, with ultimate plan to have a total of 250 emergency shelter beds, and 40 beds for medical sobering and 40 beds for medical respite beds for a total of 330 bed capacity.  Counting the other outside providers who lease space inside the building, city officials believe the property’s impact will be significant.

The link to quoted news source material is here:

https://www.abqjournal.com/2529657/abq-gateway-center-likely-to-open-some-time-this-winter-ex-mayor-say.html

“NO ARREST” POLICY

The homeless has reached crisis proportions with the homeless having become far more visible and aggressive by  illegal camping  in parks, on streets, in alleyways and in city open space areas.   When it comes to the “homeless crimes” of illegal camping, criminal trespassing and loitering, Mayor Keller  acquiesced with the Albuquerque Police Department (APD) implementing  a “no arrest” policy. Orders for immediate removal their camps are not given to the homeless.  Instead homeless are given 72 hours to vacate illegal campsite locations essentially giving them permission to continue to violate the law for 72 hours.  

APD’s policy is that arrests are the very last resort to deal with the homeless and citations are to be issued. At one time, police arrest discretion of the homeless was taken away from APD officers and APD could not arrest until it was approved by the Family and Community Services Department and after it conducted outreach measures. This policy has since been rescinded.  APD is allowed to make arrests only when the circumstances warrant such as a violent felony endangering public safety.

For 5 years, Mayor Keller allowed Coronado Park to become a “de facto” city sanctioned homeless encampment allowing  it to become  a public nuisance.  Criminal activity spiked at the park over four years. The city park had an extensive history lawlessness including drug use, violence, murder, rape and mental health issues. City officials said it was costing the city $27,154 every two weeks or $54,308 a month to clean up the park only to allow the homeless encampment to return.

On July 25, Mayor Tim Keller, calling Coronado  Park “the most dangerous place in New Mexico” was forced to close down the park  because of violent crimes, including 4 murders,  and environmental ground contamination concerns without any plan for dealing with the 75 to 125 homeless that were displaced.   City officials said that upwards 120 people camp nightly at the park. It should never be forgotten by anyone that it was Keller who created “the most dangerous place in New Mexico”

SAFE OUTDOOR SPACES

It was on June 6, 2022 the City Council enacted an amendment to the Integrated Development Ordinance (IDO) to allow for city sanctioned “Safe Outdoor Spaces”. “Safe Outdoor Spaces” are city sanctioned homeless encampments located in open space areas that will allow upwards of 50 homeless people to camp, require hand washing stations, toilets and showers, require a management plan, 6-foot fencing and provide for social services.

Under the adopted amendment, Safe Outdoor Spaces are allowed in some non-residential and mixed-use zones and must be at least 330 feet from zones with low-density residential development. The restrictions do not apply to campsites operated by religious institutions. Under the IDO amendments, Safe Outdoor Spaces are allowed for up to two years with a possible two-year extension.

On June 22, after tremendous public outcry and objections, two bills were introduced that would repeal safe outdoor spaces. One bill introduced would stop the city from accepting or approving Safe Outdoor Space applications and the other will eliminate “safe outdoor spaces” from the zoning code altogether.

On July 30, Dawn Legacy Point filed the very first application  for a ‘Safe Outdoor Space’ homeless encampment. The homeless encampment is intended to provide accommodations for upwards of 50 women who are homeless and who are “sex-trafficking victims”.  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.  The Family Community Service Department gave Dawn Legacy preferential treatment to Dawn Legacy and agree to help fund the project.  On August 8, the City Planning Department unilaterally and behind closed doors rushed to approve the Dawn Legacy Point application and did not give notice to adjoining and surrounding property owners. Seven appeals were filed and on October 10, a city Land Use Hearing Officer a his decision and 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

On Friday, August 26, Mayor Tim Keller announced he vetoed the Albuquerque City Council legislation that placed a moratorium on “Safe Outdoor Spaces.”   Keller argued in his veto message that the city cannot afford to limit its options for addressing homelessness and said he understood how new policies sometimes take time to refine after testing.  Keller wrote in part in his veto message:

“We need every tool at our disposal to confront the unhoused crisis and we need to be willing to act courageously. … However, reasonable time, testing and piloting has not been allowed”.

Keller’s veto of the one-year moratorium on SOS encampments was upheld by the city council.

The link to the quoted news source article is here:

https://www.abqjournal.com/2527750/new-keller-veto-aims-to-save-safe-outdoor-spaces.html

The repeal legislation was referred to the Environmental Planning Commission (EPC) for review and hearing and to make recommendations to the City Council.   On Thursday, September 15, the Environmental Planning Commission (EPC) voted to repeal “Safe Outdoor Spaces” from  the Integrated Development Ordinance (IDO) by  deleting  all references of Safe Outdoor Spaces effectively outlawing the conditional land use anywhere in the city.

“HOUSING FORWARD ABQ” PLAN

On October 18, Mayor Tim Keller announced his “Housing Forward ABQ” plan. It is a new “multifaceted initiative” where Mayor Keller is hoping to add 5,000 new housing units across the city by 2025 above and beyond what private industry normally creates each year. As it stands now, the city issues private construction permits for 1,200 to 1,500 new housing units each year. According to Keller, the city is in a major housing crisis and studies show the city needs as many as 13,000 to 30,000 new housing units.

To add the 5,000 new housing units across the city by 2025, Keller  is proposing that the City of Albuquerque fund and be involved with the construction of new low income housing to deal with the homeless or near homeless.    The strategy includes “motel conversions” and  a zoning code “rebalance” to enhance density.  It includes allowing “casitas” which under the zoning code are formally known as “accessory dwelling” units.  Keller wants to allow “different forms of multi-unit housing types” on residential properties.   63% of the city’s housing  is single-family detached homes.

According to Keller, the city will also be pushing to convert commercial office space into to residential use. The Keller administration is proposing $5 million to offset developer costs with the aim of transitioning 10 properties and creating 1,000 new housing units.  The new plan also includes “motel conversations” which is the city purchasing and turning old and existing motels into housing.

Keller argues in part that his “Housing Forward ABQ”  plan will bolster the construction workforce and  address current renter concerns.  According to a news release, the Keller Administration intends to seek to change the law to protect tenants from “predatory practices such as excessive application fees, clarifying that deposits must be refundable and capping other fees, especially in complexes that accept vouchers.”

During his October 18 news conference announcing his “Housing Forward ABQ” Keller emphasized the importance of amending the city’s Integrated Development Ordinance (IDO).  Keller  had this to say:

“Right now our zoning code will never allow us to meet the housing demand in the city … If you want a place to advocate, if you want a place to change policy, if you want a place to argue, it’s all about the IDO.”

City Council President Isaac Benton has long advocated for ways to increase the housing stock, previously pushing to legalize casitas.  In 2016, the city council rejected his  amid  neighborhood association opposition. Benton had  this to say:

“We’ve had these arguments over the years with some of my most progressive neighborhoods that don’t even want to have a secondary dwelling unit be allowed in their backyard or back on the alley. … You know, we’ve got to change that discussion. We have to open up for our neighbors, of all walks of life, to be able to live and work here.”

https://www.abqjournal.com/2541186/mayor-sets-goal-of-5k-housing-units-by-2025.html

“MOTEL CONVERSIONS”

“Motel conversions” includes affordable housing where the City’s Family & Community Services Department would acquire and renovate motels to develop low-income affordable housing options. The existing layout of the motels makes it cost-prohibitive to renovate them into living units with full sized kitchens. An Integrated Development Ordinance amendment will provide an exemption for affordable housing projects funded by the city, allowing kitchens to be small, without full-sized ovens and refrigerators. It will require city social services to regularly assist residents.  The homeless or the near homeless would be offered the housing.

One area of the city that has been targeted in particular by the Keller Administration for motel conversions is “Hotel Circle” in the North East Heights. Located in the area are a number of motels in the largest shopping area in SE and NE Albuquerque near I-40. The businesses in the area include Target, Office Depot, Best Buy, Home Store, PetCo and the Mattress Store  and restaurants such as  Sadies, the Owl Café, and Applebee’s  and other businesses. The city is already seeking to buy Sure Stay Hotel on Hotel Circle SE and has its eye on purchasing the abandoned and boarded up Ramada Inn for a motel conversion.

ANALYSIS AND COMMENTARY

Mayor Tim Keller has taken full advantage of loopholes within the Integrated Development Ordinance (IDO) to cut out general public involvement and input to promote and implement his shotgun “all the above approach” to the city’s homeless crisis. He has done so with the help and assistance of his Family and Community Services Department and the Planning Department who carry out his political agenda over public objections, such was the case with the  Safe Outdoor Spaces and the application process for Dawn Legacy Point.

When Keller says “Right now our zoning code will never allow us to meet the housing demand in the city … If you want a place to advocate, if you want a place to change policy, if you want a place to argue, it’s all about the IDO”  what he really means and what he wants is to be able to do whatever he wants without public input or interference from anyone.

Keller has also taken full advantage of City Council’s ineptness, disarray and failed leadership to implement his “all the above approach”  and his shotgun policies.  That may be “good politics” in Keller’s mind, but it sucks for the general public.  Keller does not realize that his actions are the very type of politics that creates hostility and mistrust of politicians.

EDITOR’S NOTE: The postscript to this blog article provides details on how the public have been cut out of the review process.

The millions being spent each year by the city to deal with the homeless with the “housing first” policy should be more than sufficient to deal with city’s actual homeless numbers, yet Keller demands and wants more from the public.  He wants Safe Outdoor Spaces and his “Housing Forward Abq” plan despite both being ill advised.

SAFE OUTDOOR SPACES

Safe Outdoor Spaces encampments violates the city’s “housing first” policy by not providing a form of permanent housing and with reliance on temporary housing.   Safe Outdoor Spaces are not the answer to the homeless crisis. “Safe Outdoor Spaces” will be a disaster for the city as a whole. They will destroy neighborhoods, make the city a magnet for the homeless and destroy the city’s efforts to manage the homeless through housing.  Safe Outdoor Spaces represent a very temporary place to pitch a tent, relieve oneself, bathe and sleep at night with rules that will not likely be followed. The answer is to provide the support services, including food and permanent lodging, and mental health care needed to allow the homeless to turn their lives around, become productive self-sufficient citizens and no longer dependent on relatives or others

“MOTEL CONVERSIONS” AND  KELLER’S “HOUSING FORWARD ABQ”

“Motel conversions” and  Keller’s “Housing Forward Abq” plan to add 5,000 new housing units across the city by 2025 above and beyond what private industry normally creates each year makes the false presumption that the city’s need for 13,000 to 30,000 new housing units is somehow related to the homeless crisis.  It is not.  The housing shortage is related purely to economics and the development community’s inability to keep up with supply and demand and the public’s inability to purchase housing. There is also a shortage of rental properties.

Keller pushing to convert commercial office space into to residential is misplaced and presumes that commercial property owner’s would be amenable to replacing their more lucrative commercial property into residential property which is a complete reversal from what normally happens.  It is far more common for residential property owners to seek commercial zoning changes for their properties. The Keller administration is proposing $5 million to offset developer costs with the aim of transitioning 10 properties and creating 1,000 new housing units.

It should not come as any surprise to anyone that Mayor Tim Keller wants and is promoting “motel conversions”. He refused to take any position on IDO when he was running for Mayor the first time in 2017. Besides, Keller is known for his own self-promotion and ONE ABQ slogan. Zoning issues tend to be very boring and difficult to integrate into slogans, unless of course it’s your own program and calling it “Housing Forward Abq”.  Perhaps Keller should change his slogan “ONE ABQ” to “ONE ABQ, ONE KELLER DEVELOPMENT”.

FINAL COMMENTARY

Being homeless is not a crime. The city has a moral obligation to help the homeless, mentally ill and drug addicted. The city is meeting its moral obligation to the homeless  with the millions being spent each year for services, shelter and housing. The blunt truth is that  Mayor Tim Keller, the City Council and the city will never solve homelessness  and it’s not at all likely that the city will ever be free of the homeless. All that can and must be done is to manage the homeless crisis but there must be limitations.  Adopting an “all the above approach” is just plain foolish on a number of levels.

Spending millions on homeless services, shelters and housing and having no visible impact on homeless squatters who have no interest in city shelters, beds, motel vouchers and who want to live on the streets and camp in city parks, in alleys and trespass as they choose is at worse evidence of incompetent management  and at best wasting city  resources.  Keller and company need to do a better job dealing with the homeless and those who refuse services.  Mayor Keller needs to take a more measured approach which must include reliance on law enforcement and perhaps the courts, such as civil mental health commitment hearings, to get those who refuse services and to get them off the streets in order to get them the mental health care and drug rehabilitation they desperately need.

“Safe Outdoor Spaces” and “motel conversions” will be a disaster for the city as a whole. They will destroy neighborhoods and established business areas and make the city a magnet for the homeless.  Mayor Tim Keller has mishandled the homeless crisis, including the closing of Coronado Park, supporting Safe Outdoor Spaces and now motel conversions.  All 3 will be Mayor Keller’s symbols and legacy of failure as the city deals the city’s most vulnerable population, the homeless.  What Mayor Tim Keller is doing is cramming Safe Outdoor Spaces and motel conversions down the throats of the community to promote his own political agenda, something he must be held accountable for should he seek another term or higher office.

____________________________

POSTSCRIPT

THE INTEGRATED DEVELOPMENT ORDINANCE

It was in 2015 that former Mayor Richard Berry during his second term started the rewrite process of the city’s comprehensive zoning code and comprehensive plan to rewrite the city’s entire zoning code. It was initially referred to as the  ABC-Z comprehensive plan and later renamed the Integrated Development Ordinance (ID0) once it was pasted.  In 2015, there were sixty (60) sector development plans which governed new development in specific neighborhoods. Forty (40) of the development plans had their own “distinct zoning guidelines” that were designed to protect many historical areas of the city.

The stated mission of the re write of the comprehensive plan was to bring “clarity and predictability” to the development regulations and to attract more “private sector investment”. The city’s web site on the plan rewrite claimed the key goals include “improve protection for the city’s established neighborhoods and respond to longstanding water and traffic challenges by promoting more sustainable development”. Economic development and job creation was argued as a benefit to rewriting the Comprehensive Plan.

Under the enacted Integrated Development Ordinance (IDO) the number of zones went from 250 to fewer than 20, which by any measure was dramatic. Using the words “promoting more sustainable development” means developers want to get their hands-on older neighborhoods and develop them as they see fit with little or no regulation at the best possible cost to make a profit. The IDO also granted wide range authority to the Planning Department to review and unilaterally  approve development applications without public input.

https://publicpolicy.wharton.upenn.edu/live/news/1581-impacts-of-gentrification-a-policy-primer/for-students/blog/news.php

Former Mayor Richard Berry said the adoption of comprehensive plan was a much-needed rewrite of a patchwork of decades-old development guidelines that held the city back from development and improvement.  The enactment of the comprehensive plan was a major priority of Berry before he left office on December 1, 2017. The Greater Albuquerque Chamber of Commerce and the construction and development community, including the National Association of Industrial and Office Parks (NAIOP), pulled all stops to get the plan adopted before the October 3, 2017 municipal election.  IDO was enacted with the support of Democrats and Republicans on the City Council despite opposition from the neighborhood interests and associations.

The rewrite was a rush job.  It took a mere 2 years to rewrite the entire zoning code  and it emerged as the Integrated Development Ordinance.  It was in late 2017, just a few weeks before the municipal election and the election of Mayor Tim Keller, that  the City Council  rushed to vote for the final adoption of the IDO comprehensive plan.  Outgoing City Councilor Republican Dan Lewis who lost the race for Mayor Tim Keller voted on the IDO refusing to allow the new council take up the IDO.

Critics of the Integrated Development Ordinance said it lacked public discussion and representation from a number of minority voices and minority communities.  They argued that the IDO should be adopted after the 2017 municipal election. There is no doubt that IDO will have a long-term impact on the cities older neighborhoods and favors developers. The intent from day one of the Integrated Development Ordinance was the “gutting” of long-standing sector development plans by the development community to repeal those sector development plans designed to protect neighborhoods and their character. The critics of the IDO argued that it made “gentrification” city policy giving developers free reign to do what they wanted to do without sufficient oversight.

PUBLIC CUT OUT OF THE PROCESS

The enacted Integrated Development Ordinance has provisions to allow the City Council to adopt major amendments every two years and make major changes to it. The IDO blatantly removes the public from the development review process, and it was the Planning Department’s clear intent to do so when it drafted the IDO.

On July 12, 2019, a guest editorial column was published by the Albuquerque Journal written by Dr. Joe L. Valles, President, Grande Heights Neighborhood Association. The column dealt with the city’s Integrated Development Ordinance (IDO). Portions of the guest column reveal just how bad the public has been shut out of the redevelopment process:

“There’s widespread disappointment and frustration with the Planning Department’s ongoing actions regarding the Integrated Development Ordinance (IDO). The IDO promise was “to ensure a high-quality built environment for nearby property owners and neighbors.” Without a vision for Albuquerque, however, unenforced and arbitrary rules in the IDO neither create new design nor ensure a high-quality built environment, and planners aren’t asking for it.  …

The Planning Department also has a problem with strict adherence to state statute; if not de-facto violations of the law, then due-process breaches and potential violations of the Open Meetings Act ignore its spirit. The Development Review Board (DRB) was granted gratuitous discretionary power by the IDO to hold hearings and grant variances without the requisite conformity to strict standards. The Land-Use Hearing Officer (LUHO) warned planners about potential problems in courts.

Obviously, the City Council heard, because … [city] councilors unanimously passed R-19-150. This resolution sponsored by Councilor Trudy Jones allows the DRB to further circumvent strict state statute requirements. “To hold public hearings”‘ was changed to “hold meetings” and “variance” was replaced with “waiver.” These changes further diminish the process and discredit policy making. It’s policy change without public engagement favoring one sole stakeholder – the development community. If these are the kinds of “fixes” we’re going to get, then we’re stooping to a new low.

The IDO blatantly removes the public from the development review process, and it was the planners’ clear intent to do so. Telling are 2013-14 inter-office planning memos [which state]:

“Keep neighborhoods under control … Rebalancing Neighborhood Association input into the process … need to either remove from (the) process or give them a charge … growth no matter what … eliminating sector plans …”

The flaw is that against written promises, coupled with planners’ open advocacy on behalf of commercial development interests, they created an unbalanced domination by the one stakeholder. Rather than standing as honest brokers, planners continue in their staff reports and testimony to present the most favorable cases for certain developers or their agents with apparent imbedded undue influence within the city.

Although initially touted as a badly needed document to clean-up conflicting zoning regulations, planning staff …  identified over 500 “fixes” needed to amend the IDO. Astute neighborhood people have also identified numerous essential amendments.

It’s what happens to a document that’s constructed “in a fairly strict timeline in order to complete this monumental project during the remainder of the Mayor’s term and we need to get this RFP out by early June in order to accomplish that.”

Thus, in a special meeting, City Council passed the IDO on the eve of the mayoral election. The clear aim was to get Mayor (Richard) Berry to sign it before Mayor Keller took office. Six of 9 councilors, city planners and supporters of the IDO gave in to the development industry, wiped out publicly supported sector plans and left resident landowners hanging.

Property owners wanted to keep their sector plans – their sense of place. IDO form-based zones were created to set the forms of buildings and allow development to proceed more quickly without public hearings, something easier done in an urban environment like Downtown.

 The flaw? Without visionary planning you can’t reasonably attempt to create “downtown environments” citywide. After all, a key objective of this effort was “to develop zoning that protects neighborhoods while encouraging the revitalization of commercial areas.” Where are those neighborhood protections?”

You can review the guest editorial article at the below link:

https://www.abqjournal.com/1339342/homeowners-left-out-of-abqs-development-ordinance-fixes-ex-planning-department-is-cutting-neighborho

Below is a guest opinion column submitted for publication on this blog by Colleen Aycock, a resident of Four Hills in SE Albuquerque. She is an organizer of “Women Taking Back Our Neighborhoods”. She has a Ph.D. in Rhetoric from the University of Southern California and has spent her professional life teaching writing at the college level, editing business magazines, and writing biographies for the U. S. Capitol, Statuary Hall. She serves on the Editorial Board for the International Boxing Research Organization (IBRO), has authored 5 books on boxing. She has been inducted into the New Mexico Boxing Hall of Fame. She has spent a lifetime in active civic volunteerism, having been president of Rotary Clubs in Texas and Maryland. She is currently president of P.E.O. Chapter AM, Albuquerque. Her email is cka13705@aol.com.

EDITOR’S DISCLAIMER: The opinions expressed in this guest column are those of Colleen Aycock and do not necessarily reflect those of the www.petedinelli.com blog. She has not been paid compensation to publish the guest column and has given her consent to publish on www.PeteDinelli.com.

COLLEEN AYCOCK GUEST COLUMN

MOTEL CONVERSIONS BAD PUBLIC POLICY TO DEAL WITH HOMELESS CRISIS

BY COLLEEN AYCOCK

The City of Albuquerque is involved in another City boondoggle. It is a Tiny Homes-type public housing project on steroids, with more units and with an impact that could potentially destroy entire business districts across Albuquerque.   The plan is called “Motel Conversions,” and the Mayor Tim Keller Administration’s goal is to buy motels and convert them into public housing projects, directed by Family & Community Services, eventually turning these City-purchased properties over to non-profit entities to run them.

On October 17, 2022, Mayor Keller announced that the city is ready to convert 10 commercial motels into public housing, and that the city plans to train individuals through their programs to perform the construction. The plan is to create “affordable housing” with “access for all.”

https://www.kob.com/new-mexico/city-announces-new-plan-to-tackle-housing-crisis-in-albuquerque/

This may sound like a laudable goal, but like the “Plans” to house the homeless in tents and tiny homes the city calls living spaces without restrooms and kitchens, the plan for Motel Conversions is equally bad. The plan will not create true, meaningful, or complete, permanent housing for already struggling residents. It will only create high-density slums and invite additional crime into the area. The slap in the face to taxpaying citizens is that the City will use the deep pockets of the taxpayers to fund these ill-planned projects.  The City wants to use and reallocate federal HUD grants and one-fifth of the $100-million tax bond money designated for “Affordable Housing” for motel conversions, all monies never intended for substandard housing.

Simply put, staying in a converted one-room, motel room for longer than a week is harmful and constitutes substandard permanent living conditions for anyone, especially for a family with children.  This “permitted design” should not be allowed by the City of Albuquerque or funded by HUD or with public bond money earmarked for “Affordable Housing”.  A converted motel room is NOT what Albuquerque taxpayers thought they were getting when they voted for the $100-million-dollar bond package for Affordable Housing. And a slum is not what HUD intended for its Community Grants.

SURE STAY HOYEL FIRST CITY PURCHASE ON HOTEL CIRCLE

The first of these “Motel Conversions” is planned for the largest business district in City Council District 9 serving SE and NE Albuquerque, along Hotel Circle at Eubank and Lomas, a decision by the City that all businesses in this district say will harm them.

Since last fall, a year ago, the City of Albuquerque and the Real Property Division have been interested in purchasing the Sure Stay Hotel on Hotel Circle SE, a private hotel business directly across the street from the Econolodge and Days Inn hotels. These for-profit hotels are bordered by other for-profit businesses in the largest shopping area in SE and NE Albuquerque near I-40. These businesses include restaurants and big box stores that attract large numbers of clients and tourists to the area. The businesses include Sadies, the Owl Café, and Applebees, Target, Office Depot, Best Buy, the Home Store, PetCo and other businesses critical to the healthy economic welfare of District 9 and the surrounding neighborhoods.

Before the City could purchase the Sure Stay hotel for this residential public housing Project, the City needed to create a zoning amendment in the Integrated Development Ordinance (IDO) which would allow for this type of business conversion for residential use by the City.

Thus, the creation, in July, of the loosely crafted “Motel Conversion” IDO amendment (0-22-10) which the City Council passed, with some opposition, which allows for any commercial structure, not originally built or intended for permanent residential housing, to be converted into structures without full service kitchens with appliances, and, in lieu thereof, allow for microwave and dormitory-style refrigerators.

With the building code and IDO changes in place, the City could legally purchase any commercial building for use of Family & Community Services for permanent public housing projects. But the City had to have the MONEY guaranteed for these purchases and conversions. That money would come from several sources, but primarily HUD and, with City Councilors’ blessing, an already passed tax bond for “Affordable Housing,” monies not designated specifically for Motel Conversions. That detail didn’t matter. The City would reallocate those and other HUD funds for these conversions.

In the Spring 2022, Assistant Family Community Services Director Lisa Huval justified the purchases by saying, “The City Council also this spring approved borrowing $20 million as part of a $100 million gross receipts tax bond package for affordable housing, which Huval, Deputy Director of Housing, said can go toward creating new units or acquiring and rehabilitating property.”  There is over $23 million in city and federal voucher funding available, including $9.8 million extra in ongoing annual funding added to the budget this year,” she stated.

The link to the quoted news source is here:

https://www.abqjournal.com/2537079/renters-seek-city-assistance-amid-soaring-costs.html

If the City Council knew this past spring that they were voting to reallocate these bond funds, the blame can be equally placed on City Council for allowing Family & Community Services to take $20-million from “affordable housing” to create Motel Conversions that would destroy business districts, specifically the business district, built and designed and named “Hotel Circle” exclusively for businesses.

HOUSING AND URBAN DEVELOPMENT FUNDING

On September  23, 2022, the Department of Family & Community Services published a notice in the “Albuquerque Journal” in its  Government Legals, fine-print, pages that stated the City intended to purchase Sure Stay Hotel by using Housing and Urban Development (HUD) funding of $3,059,662.12 in Community Development Block Grants,  $2,443,724.00 from Public Facilities monies  and $615,938.12 from Foreclosure Prevention for a total property purchase of  $6,119,324.24.  Public Facilities money are intended to be used for such things as fire departments, police stations, community centers. Foreclosure Prevention money is intended to be used to prevent foreclosures—and not to be used as funding with which to buy a property.

On September  29, 2022, six days later, the city  published in the “Albuquerque Journal” a  “Notice of Finding of No Significant Impact and Notice of Intent to Request Release of Funds from HUD”.   The notice stated:

“On or after Oct. 17, 2022 the City of ABQ, Dept. of Family and Community Services will submit a request to the HUD ABQ Field Office for the release of CDBG CARES and HOME American Rescue Plan (HOME_ARP) funding to the Sure Stay Hotel Acquisition and Renovation Project for the permanent housing with supportive services….”

The total HUD funding is estimated at $7,559,662.12.

Over 6 days, from September  23 to September  29, the published request for HUD funds increased by almost  $1.5 million from one document to the next. When the discrepancy was brought to the attention of Community Development Program Manager Monica Montoya, she responded that the original request was for $3,059,662.12 and that it be allocated for the contribution of the Sure Stay Motel acquisition, an original monetary request and location that the public never heard about but the city was already dealing with HUD funds. As the legal notice clearly published, other funds were being reallocated from “Public Facilities” and “Foreclosure Prevention”, grants that are inappropriate for the City’s purchase of a private motel.

With respect to  the discrepancy of funds from one notice to the other, Montoya stated that the released funding includes another HUD source that had already been approved for the purchase by saying “The Request for Release of funds also includes HOME-ARP funding for the rehabilitation of the Sure Stay. … That funding plan has already been accepted by HUD and therefore was not included in the amendment.” These back-room plans to take hotel businesses away from the business sector is a blatant example of the City’s machinations to weaponize federal public money against private citizens and businesses without full disclosure to the public. In the case of the Sure Stay Hotel, the transaction was not, at this point, completed but funds were being diverted to the purchase.

HARM MEASURED IN FUTURE COSTS

The actual consequences to established hotel and other businesses from the City’s plans to allow Safe Outdoor Spaces (SOS) which allows for tent living, also substandard housing,  next to an established hotel business must be considered. The cost of security and social services for these units do not outweigh the cost of lost neighborhood businesses, increased crime, and future long-term drug and mental health consequences for those forced to live, long term, in inhumane conditions. Flush with federal, state, and city money for constructing actual, livable residences, the Keller  Administration can and should design something better than tents, tiny homes and motel conversions for its population. Consider the cost to taxpayers of the appeals and litigation to come.

SAFE OUTDOOR SPACES APPEALS AND LITIGATION PROOF OF POOR PLANNING AND ITS CONSEQUENCES

PICTURE THIS:  A tent lot for the homeless situated behind a prestigious multistoried hotel, the Crown Plaza, that draws conventions to Albuquerque. The contrast is visually stark and economically devastating for the existing businesses and any potential business development for that area of Menaul.

Adopted in July along with the “Motel Conversion” amendment was the “Safe Outdoor Spaces” (SOS) amendment where as many as 40 to 50 individuals could live in tents or in their vehicles on an open space vacant lot. The SOS amendment garnered more public, press, and media attention than the “Motel Conversions” because of the back-and-forth battles between the City Council and Mayor over the SOS amendment. That battle consisted of the City Council passing the SOS amendment originally proposed by the City. Then Councilors changed their minds and introduced and passed a moratorium on the SOS—which the Mayor vetoed. The City Council then voted on the Mayor’s veto, but their votes failed to override his veto. 

Repeal legislation of the SOS amendment has been introduced and the Environmental Planning Commission (EPC) held a hearing on the legislation and voted to recommend total  repeal of SOS land use.

Because the SOS Amendment passed, 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” in addition to 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 assessed 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.

On September 28, 2022, an all-day hearing was convened by a City Land Use Hearing (LUHO) 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.

 All of the appeals sounded the same chord: loss of business income, expensive cost of private security, and threat of the location becoming even more unsafe and ill-suited for business purposes.

The fact of the matter is, that the City’s location of the S.O.S on Menaul violates the City’s own goals “to situate similar businesses together”, (the City’s justification in a ruling in Nob Hill for allowing multiple cannabis stores in close proximity). A commercial lot of tents is not a hotel and is a stark contrast and dissimilar business if you picture that tent lot in the backyard the Crown Plaza Hotel.

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.

CITY VIOLATES DUE PROCESS RIGHTS OF PROPERTY OWNERS

The most compelling legal fact considered in the SOS debacle at the LUHO Hearing was that the City never notified any surrounding and bordering business that the City intended to put inferior residential living spaces next door to their businesses. The General Manager of the Crown Plaza testified to the LUHO Officer that the hotel had been losing business due to the large number of homeless loiterers and high crime in the area. The Crown Plaza had over $750,000 of repeat convention contracts cancelled, all for reasons that the area had become unsafe. The LUHO officer found that Dawn Legacy Pointe’s SOS application lacked “substantial and meaningful” statutory violations of Due Process.

https://newmexicosun.com/stories/633374263-abq-hearing-officer-remands-dawn-legacy-pointe-sos-application-finding-substantial-and-meaningful-violations-of-due-process

The City’s modus operandi is clear:  The City can do whatever it wants behind closed doors, it can pass an ordinance to fit its secret plans without the public knowing where and what it intends to do with the ordinances; and, as shown with the Dawn Legacy SOS application, the City doesn’t seem to care about violating anyone’s due process.  With the Dawn Legacy application, the City violated the due process rights of adjacent property owners and rushed the approval of the land use to approve it behind closed doors. It is doing the same thing with Motel Conversions, but on a planned larger scale.

VIOLATION OF CONSTITUTIONAL RIGHTS REPEATING ITSELF WITH HOTEL CONVERSIONS

 The violation of constitutional rights is now repeating with Motel Conversions. Not a single business along Hotel Circle, from Lomas to Eubank has been notified of the City’s year-long plan to buy the Sure Stay Hotel for Family & Community Services to provide permanent public residential housing.

But the real travesty is evident in the City’s fast-hands, and probably illegal, use of tax-payers’ federal tax funds through HUD and other “reallocated” taxpayer monies the City is using for the purchase of these Motel Conversions.

There are other problems with the City’s purchase of the Sure Stay Hotel:

1) No Open Record Public Request for Purchase. Community Development Program Manager Monica Montoya stated that there was no public Request for Purchase (RFP) for the purchase of the hotel.

2) No Due Process. No businesses along Hotel Circle, SE, were notified and still have not been notified in writing or in person of the Sure Stay Hotel purchase by any public or elected official.

3) Hidden Costs for Services. The request to HUD for Release of Funding, published in the newspaper includes “supportive services” which has not been defined. There was no disclosure of  how much money these “services” will cost the taxpayer for the first year or thereafter. According to Monica Montoya, “supportive services” include such things as the delivery of vaccines and food boxes. It is sadly ironic to picture a delivery of a food box to client living a hotel room without a kitchen.

4) Cost of Crime. There is proof that this “Project” will make the business district more dangerous.

MOTEL CONVERSIONS HISTORY OF BEING IMPRACTICAL FOR PERMANENT LIVING

Motel conversions have a history of being impractical for permanent living and very, very dangerous to neighborhoods and businesses in the area. That proof can be found in the conversion of a motel on East Central, now called the Four Hills Studios. This long-term, low-income property accepting housing vouchers has experienced, in this year alone, a murder, assaults with serious bodily injury, drug dealers and drug-related crimes, and extortion of its residents. The police have reported over 400 calls to that location in the first half of this year. While the City doesn’t own this property, citizens are forced to pay the high costs from the consequences of its conversion for low-income residential use in a business district. (That motel conversion is now under new ownership with new managers, under the ADAPT program, a program that replaced the Safe City Strike Force to deal with harmful, derelict properties.)

There are other troubling financial questions regarding these motel sales. Those questions include:

Who are the sales agents? Who stands to gain financially from these sales?

How many reputable businesses will be put out of business when these projects pop up?

Where are the other 9 City-planned Motel Conversions locations?

The City has not been forthcoming with any answers to these questions.

A BACKWARD PROCESS

The city’s purchasing process for affordable housing is ill advised and backwards.  The City should be looking for properties that will promote quality living for residents in residential areas. The City needs to build the City up, not take inferior, cheap, and worn properties to rehab for the unfortunate, concentrating them in properties that are likely to become slums.

The City’s Planning Dept. should be asking the businesses in and around Hotel Circle for their input first. The City should have asked businesses how these public housing projects will affect their businesses and economic well-being.  Not a single business surveyed wanted this Sure Stay Housing Project to go forward. Their answers were a resounding: “It will destroy our business.” “Why is the City putting residential public housing in a business district?” “We are against this.” Like the City’s purchase of a commercial lot for tents in the backyard of a multi-storied hotel, it appears the City of Albuquerque through Family & Community Service is running rough-shod over the business district at Hotel Circle. Maybe the name of its road sign should be changed from “Hotel Circle” to ““No taxpayer Input Desired/Required.”

Why is the City doing this?  The simple answer: because it can, and the City has deep pockets from taxpayer funds with which to tap. 

SUMMARY

In a pre-planned move, for over a year now, the City has been setting in motion a plan to buy the Sure Stay Hotel on Hotel Circle, planning to change the IDO to make this and other purchases possible, planning to use one-fifth of the tax bond package for “inferior housing” (with City Council approval), and then planning to turn these City purchases over to Not-for-profit entities to run them—all plans that failed to notify the public or the businesses imminently affected.

What is happening now is NOT the best way to run a city or a public residential housing program, by buying up commercial properties willy-nilly in business districts, without a plan, anywhere the administration wants, without proper notification to the public, and failing to account for and use of HUD money for its intended purposes.

WHAT CAN YOU DO?

If you want to voice your opinion against the City’s purchase of the Sure Stay Hotel or any other motels for conversion into insufficient housing for permanent public “Projects” for low-income, homeless, or any other individuals, please add your name to the petition requested by the surrounding businesses on Hotel Circle.

The petition is located on Judy Young’s website. Judy is a member of Women Taking Back Our Neighborhoods and is running for Bernalillo County Commissioner, Dist. 5 in Albuquerque. She is the only candidate for office that has offered to help these businesses in their desperate cry for help in this matter.

Sign the Petition at: https://youngbernco.com/motel-conversions-petition

You can also request to HUD to STOP using HUD funds by re-allocating funds not meant to be used for purchases that will destroy businesses in existing business districts by emailing:  Lawrence Reyes, Dir.of Albuquerque HUD office:

lawrence.c.reyes@hud.gov.

Respectfully

Colleen Aycock

Founding member of Women Taking Back Our Neighborhoods

Democrat City Councilor Issac Benton and Republican Brook Bassan are proposing making changes and updating the city’s Pedestrian Safety Ordinance permitting anyone from certain kinds of activities on city owned medians. The ultimate goal is to restrict panhandling on city owned medians.  If this sounds at all familiar, its because it is.  It was in 2017 that Albuquerque City Councilor Trudy Jones sponsored the original “Pedestrian Safety Ordinance” that was enacted unanimously by the city council.  The original bill banned pedestrians from having exchanges with drivers.

The American Civil Liberties Union  (ACLU) filed  a federal civil rights lawsuit challenging  the city ordinance.  U.S. District Court Judge Robert Brack  in Albuquerque ruled in 2019 that the ordinance violated free speech protections because it was “not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.”  The city appealed the ruling and in 2021 the U.S. 10th Circuit Court of Appeals in 2021  upheld Judge Brack’s ruling.

The U.S. 10th Circuit Court of Appeals in its ruling  wrote:

“[The city was]  unable to establish that the ordinance does not burden substantially more speech than necessary to further its interest in pedestrian safety … [and] has almost completely failed to even consider alternative measures that restrict or burden the speech at issue less severely than does the ordinance.”

The federal appeals court  noted the city’s  argument on  accident reports failed to support the need for several of the ordinance’s provisions,  ruling the city’s arguments “actually belied any assertion that pedestrian presence near highway ramps or on medians, or pedestrian involvement in physical exchanges with vehicles occupants, gave rise to significant safety concerns.”

ORIGINAL LANGUAGE DECLARED UNCONSTITUTIONAL

The original language of the “Pedestrian Safety Ordinance” that was declared unconstitutional by the federal court  is as follows:

(D)   It is unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane unless reasonably required because of an emergency situation. For purposes of this section, a “physical interaction or exchange” is conduct by which a pedestrian intentionally makes physical contact with a vehicle in a travel lane or with any of its occupants, either directly or with an object.

 (E)   It is unlawful for any occupant of a motor vehicle within any travel lane or intersection to engage in any physical interaction or exchange with a pedestrian unless reasonably required because of an emergency situation. For purposes of this section, a PHYSICAL INTERACTION OR EXCHANGE is conduct by which an occupant of a motor vehicle in a travel lane intentionally makes physical contact with a pedestrian, either directly or with an object.

The complete, unedited ordinance can be found in the POSTSCRIPT following to this blog article.

The new Benton/Bassan bill deletes the egregious, unconstitutional language and the following language is substituted:

“It is unlawful for any person to stand in any travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit of entrance ramps thereto, or to otherwise enter a travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit of entrance ramps thereto, except for the purpose of legally crossing … It is unlawful for any person to access, use, occupy, congregate or assemble on any median that is located on any roadway with a posted speed limit of 30 miles per hour or greater and that does not possess a flat area of at least four feet (4’) in diameter”.

Note that the new  ordinance specifically bars individuals from standing in or entering street and highway travel lanes unless they are “legally crossing.” It also prohibits using or occupying medians on 30 mph or faster roads where there is not a flat surface at least 4 feet wide.

Under the new ordinance, if pedestrians are on a median that doesn’t meet the bill’s requirements, a $100 citation could be issued.  APD and the Albuquerque Community Safety Department (ACS) will  be authorized to give warnings, or  are a person can be criminally charged with a misdemeanor and fined a $100.

The new ordinance delineates  an extensive amount of statistics and cites New Mexico  as being  among the worst in the nation for pedestrian fatalities, with 9 deaths per 100,000 from 2009-2019. It also cited the 2020 death of Rachanda Myers, a mother of three who was hit and killed by a car sitting on a narrow median on Pan American Freeway.

The updated ordinance removes the unconstitutional  provisions of the original ordinance, including the part banning exchanges between drivers and pedestrians, and loosens up where pedestrians can be on sidewalks. Under the new version of the ordinance,  if people are on a sidewalk or median, it has to be at least four feet wide, on a street where the speed limit is under 30 miles per hour, and flat, having no greater than 8% grade.

Ordinance  co-sponsor Republican City  Councilor Brook Bassan  had this to say:

“I absolutely believe that people should be able to express their free speech, but I also think that people driving have a right to be safe when they’re driving to or from different locations and not have to worry if they’re going to hit somebody and kill them. And if people are a little bit more unbalanced, they need to be able to be safe too. … The priority is to make sure people are safer both to make sure people are safer standing on medians or sidewalks or if they’re driving.  … We’re working to have some enforcement that’s fair and that allows for the opportunity for some change to happen.”

Democrat co-sponsor City  Councilor Benton for his part  said he believes the new version can withstand a potential legal challenge because it does not specifically target people who are homeless and it  would also apply to people fundraising or otherwise using medians. Benton said this:

“If they’re doing it on a 2- or 3-foot-wide median in heavy traffic, that’s just not a safe situation.”

MAYOR TIM KELLER REQUESTED THE LEGISLATION

City Councilors Benton and  Bassan are sponsoring the legislation on behalf of the Keller administration. It was in September that Mayor Tim Keller requested that the ordinance be enacted. In a September memo to both, Keller wrote:

“Due to the … large number of pedestrian/vehicle-involved crashes, Albuquerque seeks to address general pedestrian safety concerns, and to prevent further unnecessary deaths and injuries resulting from pedestrian occupation of medians by amending the Traffic Code to disallow occupancy by pedestrians in medians” .

Mayor Tim Keller’s office issued the following statement after new ordinance was introduced:

“[The new ordinance represents]  common-sense regulations  and is responsive to specific Court of Appeals’ concerns. …  Medians are constructed to manage traffic flow, and narrow medians on high-speed roads are simply not safe places for anyone to stand.  We have to protect pedestrians and drivers with common-sense regulations. The City carefully evaluated the Tenth Circuit opinion and sought to address the specific concerns identified by the Court.  Most significantly, the City limited the scope of the new ordinance. The ordinance only prohibits people from standing on dangerous medians that are four feet or narrower.  This change is designed to protect both pedestrians and the traveling public, while also allowing for protected speech.”

The ACLU  for its part said it was reviewing the new ordinance and issued the following statement:

“We are still analyzing the bill and the City’s actions for consistency with the Court’s order and how the city council votes. We are committed to making sure that people in our city do not suffer criminal legal consequences for taking part in life-sustaining activities that are protected by basic constitutional rights. “

The links to quoted news source material are here:

https://www.kob.com/new-mexico/albuquerque-city-councilors-propose-median-safety-ordinance/

https://www.krqe.com/news/albuquerque-metro/albuquerque-councilors-propose-update-to-pedestrian-safety-bill/

https://www.abqjournal.com/2538089/city-trying-again-to-outlaw-activity-on-medians.html

CAMPING ON SIDEWALKS  HAS BEEN ILLEGAL FOR 50 YEARS

One of the most  common complaints are the  homeless camping where they want on city sidewalks. In July when Mayor Tim  Keller announced the closure of Coronado Park, which  had become an a de facto city sanctioned encampment, he  also announced a policy change when it  comes to encampments on sidewalks. Keller had this to say:

“The city has changed its policies with respect to certain areas, we are going to have a much quicker response time with respect to encampments. Those areas are sidewalks. …  It’s an ADA issue. It is too dangerous to camp on a sidewalk for people trying to use the sidewalk.”

The City has adopted a  Criminal Code”, 12-1-1 to 12-1- 99.  There are two specific  ordinances that apply and  that make it illegal to camp on sidewalks that  were enacted 50 years ago.  Those ordinances are:

12-2-3 CRIMINAL TRESPASS.

Criminal trespass consists of unlawfully entering or remaining upon the lands or property of another knowing that any consent to enter or remain has been denied or withdrawn by the person or persons lawfully in possession of the premises or after the request or demand to leave the premises by the authorized representative of the person or persons lawfully in possession of the premises.

(’74 Code, § 12-1-2-3) (Ord. 96-1973; Am. Ord. 78-1978) Penalty, see § 12-1-99

12-2-7 OBSTRUCTING MOVEMENT.

 Obstructing movement consists of:

   (A)   Hindering or molesting persons passing along any street, sidewalk, crosswalk, or other public way; or

   (B)   … .

Violation of either of the ordinances is a misdemeanor punishable by a fine of not more than $500, or by imprisonment for not more than 90 days, or by both such fine and imprisonment.

(’74 Code, § 12-1-2-7) (Ord. 96-1973; Am. Ord. 43-1988; Am. Ord. 55-1990; Am. Ord. 1-2004; Am. Ord. 21-2004) Penalty, see § 12-1-99

https://codelibrary.amlegal.com/codes/albuquerque/latest/albuquerque_nm/0-0-0-101138#JD_12-2-3

The Albuquerque Police Department issued a statement on the enforcement in a statement they said in part:

“Most encounters police have with people who may be criminal trespassing result in arrests on existing warrants. So, the criminal trespass may not be captured.”

The link to the quoted new source is here:

https://www.koat.com/article/target-7-albuquerque-sidewalk-camping-citations/41537630

COMMENTARY AND ANALYSIS

What was downright laughable  if not embarrassing  was when Mayor Tim Keller said “It’s an ADA issue. It is too dangerous to camp on a sidewalk for people trying to use the sidewalk.”  This comment is what you call a person trying to say something intelligent.   Ostensibly,  Keller is ignorant of the fact that both the city’s “criminal trespass” law and “obstructing movement” law were enacted 50 years ago in 1973 and close to 20 years before the Americans with Disabilities Act (ADA) was signed into law on July 26, 1990.  The laws have nothing to do with the with disabilities and everything to do with public safety and making  sure that  public rights of way are used for their intended purpose.

The biggest problem with the original ordinance sponsored by Republican City Councilor Trudy Jones is that it was obviously directed at the homeless or panhandlers and also at drivers stopping to pass items such as food, money or anything a driver wanted  to give as a handout to help make a beggar’s or a homeless person’s life a little less miserable. It came across as downright cruel and lacking any compassion interfering with people simply wanting to help with a handout.

In 2017, the city council was repeatedly warned about the language of the original  ordinance by the ACLU and the City Council simply ignored what it was being told and that the original ordinance was unconstitutional.  What was truly amazing is the poor advice the City Council was likely given in 2017 by the City Attorney’s Office and the fact that the City Attorney office appealed the original ruling.

From review of the new language and with the deletions of the unconstitutional language, the new version of the ordinance has a much better chance of being upheld as constitutional or going unchallenged in federal court. What is very promising is that the ACLU is also analyzing the new ordinance, and if it concurs, the city council should proceed with enactment of the new ordinance.

The homeless have reached crisis proportions with them becoming far more visible and aggressive by illegally camping in parks, on streets, in alleyways and in city open space whenever they want. When it comes to the “homeless crimes” of loitering, panhandling, illegal camping and criminal trespassing, Mayor Keller implemented a “no arrest” policy where arrests are the last resort and citations are to be issued. APD is allowed to make arrests only when circumstances endangering public safety warrant an arrest. This policy is ill-advised.

Being homeless is not a crime. The city has a moral obligation to help the homeless, mentally ill and drug addicted and is doing so with millions spent each year. With that said, homeless squatters who have no interest in city shelters, beds, motel vouchers and who want to live on the streets and camp in city parks, in alleys and trespass as they choose give the city no choice but to make it inconvenient for them to “squat” and force them to move on or be arrested by the Albuquerque Police Department.

The “new and improved” Pedestrian Safety ordinance if enacted by the  city council coupled with the two existing  ordinances  prohibiting camping on sidewalls has the potential of making a real difference. But that will only be the case if APD is cut lose to do its job of enforcement.

______________________

POSTSCRIPT

Following is the original and unedited “Pedestrian Safety Ordinance” sponsored by Republican City Councilor Trudy Jones and  enacted in 2017:

• 8-2-7-2 OCCUPYING ROADWAYS, CERTAIN MEDIANS AND ROADSIDE AREAS PROHIBITED; CERTAIN PEDESTRIAN INTERACTIONS WITH VEHICLES PROHIBITED.

(A)   It is unlawful for any person to stand in any travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit or entrance ramps thereto;

(B)   It is unlawful for any person to access, use, occupy, congregate or assemble within six feet of a travel lane of an entrance or exit ramp to Interstate 25, Interstate 40, or to Paseo del Norte at Coors Boulevard NW, Second Street NW, Jefferson Street NW, or Interstate 25, except on a grade separated sidewalk or designated pedestrian way, unless reasonably necessary because of an emergency situation where such area provides the only opportunity for refuge from vehicle traffic or other safety hazard;

(C)   It is unlawful for any person to access, use, occupy, congregate, or assemble within any median not suitable for pedestrian use, unless reasonably necessary during an otherwise lawful street crossing at an intersection or designated pedestrian crossing, or because of an emergency situation where the median provides the only opportunity for refuge from vehicle traffic or other safety hazard. For purposes of this section, a MEDIAN NOT SUITABLE FOR PEDESTRIAN USE is:

(1)   Any portion of a median that is less than six feet in width, and located within a roadway with a posted speed limit of 30 miles per hour or faster or located within 25 feet of an intersection with such a roadway; or

(2)   Is the landscaped area of the median as defined by this Traffic Code; or

(3)   Is otherwise identified by signage as not suitable for pedestrian use by the City Traffic Engineer based on identifiable safety standards, including but not limited to an unsuitable gradient or other objectively unsuitable features.

(D)   It is unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane unless reasonably required because of an emergency situation. For purposes of this section, a “physical interaction or exchange” is conduct by which a pedestrian intentionally makes physical contact with a vehicle in a travel lane or with any of its occupants, either directly or with an object.

(E)   It is unlawful for any occupant of a motor vehicle within any travel lane or intersection to engage in any physical interaction or exchange with a pedestrian unless reasonably required because of an emergency situation. For purposes of this section, a PHYSICAL INTERACTION OR EXCHANGE is conduct by which an occupant of a motor vehicle in a travel lane intentionally makes physical contact with a pedestrian, either directly or with an object.

(F)   Nothing herein shall be construed as preventing maintenance or construction activities within medians or roadside areas by public agencies or agents thereof, entering or exiting a bus or other form of public transit at authorized pick up and drop off locations, or as preventing physical interactions or exchanges between pedestrians and occupants of vehicles where the vehicle is lawfully stopped or pulled over outside of a travel lane, or parked at a location where on-street parking is permitted.

(’74 Code, § 9-5-14.2) (Ord. 65-1974; Am. Ord. 2017-028; Am. Ord. 2019-017)

Click to access O-2019-017.pdf

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:

1. Martineztown Santa Barbara Neighborhood Association
2. Menaul Middle School
3. Life Roots
4. Reuele Sun Corporation, a participant in the Menaul Redevelopment Area
5. Crown Plaza Hotel, a participant in the Menaul Redevelopment Area
6. T-Mobil Cell Phone Call Center
7. 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:

https://newmexicosun.com/stories/633374263-abq-hearing-officer-remands-dawn-legacy-pointe-sos-application-finding-substantial-and-meaningful-violations-of-due-process

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.”

 REMAND INSTRUCTION

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.

NEWS UPDATE

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:

https://www.abqjournal.com/2541779/ruling-neighbors-not-properly-notified-of-safe-outdoor-space-ex-con.html

POSTSCRIPT

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 .