On November 30, 2023, it was reported that mid heights District 7 Albuquerque City Councilor Tammy Fiebelkorn introduced and was  sponsoring two  city ordinances that targeted  the city’s apartment industry. One ordinance was  entitled the “Residential Tenant Protection Ordinance” and targeted what  Fiebelkorn deemed “deceptive” practices and “unreasonable” fees charged by residential rental  proper owners and landlords.  The second was  the “Residential Rental Permit  Ordinance” that would mandate  a permitting system to operate residential rental properties.

At the time of introduction, Fiebelkorn said she had numerous  renters who contacted her and complained that  they ended up paying a lot more for the apartments they rented than they expected because of “hidden fees”. The bill would require landlords to post a list of application fees, minimum income and credit score requirements, plus background check results that could disqualify applicants. Fiebelkorn said this at the time:

“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard. … What we’re trying to do is make it real clear and transparent for people who are like looking for a rental unit.”

While Fiebelkorn said  she  believes most landlords are not overcharging tenants, she said her proposals will keep some bad actors at bay and she said this:

“I think that there is always a role for regulation so that we can protect those that are most vulnerable in our community.”

https://www.kob.com/new-mexico/albuquerque-city-councilor-pushes-for-more-renter-protection/

On March 6, the  Albuquerque City Council voted  4  Yes and 5  No  to kill Fiebelkorn’s “Residential Protection  Ordinance” as it had been amended since introduction in November of 2022. Voting YES with Fiebelkorn in favor of the bill were Democrats City Councilor Pat Davis, Isaac Benton and Klarissa Peña. The 5 who  voted  NO to kill the bill were Republicans Dan Lewis, Trudy Jones,  Renee Grout and Brook Bassan joined by Democrat Louis Sanchez.

WHAT THE BILL MANDATED

Fiebelkorn’s amended bill centered on the rental application process itself. The bill  would have required the following:

Rental property owners and landlords would be required to make upfront disclosures to potential applicants.

Rental property owners and landlords would  have to list  any parking, amenity, pet or other fees, as well as any financial penalties tenants might face for late payments or other lease violations.

Rental property owners and landlords  would also have to outline certain terms of their tenant-screening process so that would-be applicants knew ahead of time if they must have a specific credit score or income to qualify.

All application fees would be limited to $150 and require landlords refund it in cases where they rented the unit to someone else before processing others’ applications or when they denied an applicant without providing a reason.

Rental property owners and landlords   would have been prohibited from mandating that tenants have insurance for their personal property, though they could have still required that renters have insurance to cover damage to the rental unit.

PROS AND CONS VOICED

Before the vote, city councilors heard from multiple community members in favor of the legislation and local property owners who opposed it.  Many argued against the legislation with one claiming it conflicts with the State’s  Uniform Owner Resident Relations Act and would only confuse owners and residents.

Supporters described the bill as “common sense” protections for tenants. They argued the regulations would ease the burden on lower-income renters who currently struggle to pay multiple application fees and who need to know and plan for about  all the fees they will have to pay while in a rental agreement.

Rental industry representatives who spoke during the city council meeting called the bill “meddlesome” and “cumbersome”  and “unnecessary”.   They argued passage would likely result in them having to raise rents to account for the new regulations.

Before the final vote, Democrat City Councilor Louie Sanchez and Republican Trudy Jones urged the council  to postpone a decision to allow further work and changes to make the bill more acceptable but Fiebelcorn  rejected that idea. Fiebelkorn said she worked on the bill for months and  invited  all constituencies to participate and that she made significant changes to her original proposal to address various concerns. She said she was not sure what else could have done.

Sanchez and Jones  ultimately joined Republicans Brook Bassan, Renee Grout and Dan Lewis in voting down the proposal.

Democrat Councilor Louie Sanchez had this to say:

“Any time we force any entity to do something, whether it’s a public or private endeavor … the next thing that happens is the person in control raises the fees, raises the rent.”

Councillor Bassan had this to say:

“I don’t think that we should infringe upon property owners’ rights as property owners to do what they will with their property”.

After the vote Fiebelkorn  defiantly said this:

“It’s a shame we can’t protect the citizens of Albuquerque”.

MAYOR TIM KELLER VOICES DISAPPOINTMENT

Mayor Tim Keller, in a statement,  voiced his disappointment over the ordinance’s failure:

“Our city is in a housing crisis that is putting pressure our most vulnerable. Now is the time for additional resources to protect tenants and increase transparency in the rental process, and we are disappointed this ordinance did not pass. The proposed changes were conservative safeguards, needed especially now as so many people are struggling to find affordable places to live.”

Links to quoted news sources are here:

https://www.kob.com/new-mexico/albuquerque-city-council-votes-against-tenant-protection-ordinance/

https://www.abqjournal.com/2579151/albuquerque-city-council-rejects-tenant-protection-regulations.html

MAYOR KELLER’S “HOUSING FORWARD ABQ” PLAN

It was on November 10, 2022 that Mayor Tim Keller announced his “Housing Forward ABQ” plan to add 5,000 housing units to the existing housing supply by 2025.  Keller called his plan “transformative” and it includes updates to Albuquerque’s Integrated Development Ordinance (IDO). The updates to the IDO Keller is pushing is to allow construction of “casitas” or “two family” attached additions on all existing homes on  68%  of all the residential lots in the city,   allow 2  Safe Out Door spaces for homeless tent encampments in each city council district and allow  “motel conversions”  where the city is buying existing motels and converting them into low income housing rentals.

Mayor Keller has advocated and has fully supported the amendment to the IDO that allows for the land use known as “Safe Outdoor Spaces” to deal with the homeless crisis. “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 an adopted amendment to the IDO, two Safe Outdoor Spaces are now  allowed in all 9 city council districts and includes non-residential and mixed-use zones

Mayor Keller wants to amend the Integrated Development Ordinance to allow “casitas” or “two family” attached additions on all existing homes on  68%  of all the residential lots in the city.  The proposed legislation will dramatically increase options in  “R-1” residential zones.  “R-1”zoning  is  single family home lot zoning.   Upwards of 68% of all residential property zoned in the city is zoned R-1.  The proposed legislation will allow detached “casitas” or “two family” residence or duplexes up to 750 feet  on all existing residential lots in the city. City officials have reported that there are 120,000 existing single residential lots in the city and that allowing casitas and two family residences could double to 240,000 residential construction increasing housing density and rental units.  If casitas and two family residences are in fact allowed and used as rentals, Fiebelkorn’s ordinance would have applied.

COMMENTARY AND ANALYSIS

Mayor Keller’s disappointment that Residential Tenant Protection Ordinance was not enacted should not come as any surprise to anyone, especially home owners given the fact that Keller wants Safe Outdoor Spaces for the homeless in all  City Council Districts, and  wants to allow the construction of Casita’s and second dwellings in all areas of the city by amending the Integrated Deployment Ordinance, with all 3 having adverse and very negative impacts on residential areas.

The rejection of Fiebelkorn’s “Residential Tenant Protection Ordinance” was a good thing and an acknowledgement and respect for property rights and ownership as well as existing laws that protect both tenant and property owner rights to contract.  The title of the ordinance “Residential Tenant Protection Ordinance” was nothing more than pure politcal posturing and spin by City Councilor Tammy Fiebelkorn. In a real sense,  Fiebelkorn’s  ordinance amounted to nothing more than “class warfare” pitting landowners against their tenants.

Fiebelkorn proclaimed her new ordinances were   a “logical progression” of the discussion on rent control.  The only logical progression is the fact that Fiebelkorn is a self-proclaimed activist and who is considered the extremist on the city council who became upset with the City Council rejecting her politcal agenda to ask the New Mexico Legislature to repeal the state law that prevents cities throughout the state from implementing rent control. The 2023 legislature in fact rejected rent control legislation.

The ordinance  reflects  Fiebelkorn’s resentment or downright hostility towards property owners and the apartment industry that resisted  rent control.  Fiebelkorn herself said this:

“Most of the landlords in our city are fair, transparent, very clear with what folks are going to get. It’s the few that are making it really hard.”

With these comments Fiebelkorn  was  saying she wanted to make the entire apartment rental  industry miserable with city fees and bureaucratic mandates because “It’s the few that are making it really hard.”  She originally proclaimed  her Residential Tenant Protection Ordinance is a relatively painless way to help Albuquerque residents living on the margins to deal with soaring rental housing costs.  The truth is, there is absolutely nothing “painless” about the ordinance when it comes to real property owners and how it interferes with their property rights and their right to contract.

CITY COUNCIL USUPRING STATE STATUTES

The way the ordinance is written as amended, it is a blatant attempt to usurp and contravene provisions of the state  Owner – Resident Relations Act. The Act mandates written ‘‘rental agreements’’ or leases and provides that all agreements between an owner and resident and all  rules and regulations required  under the act must be embodied in  the terms and conditions of the written lease concerning the use and occupancy of a dwelling unit or premises.   (47-8-3, P,  Definitions.) 

The written lease agreement must delineate all the terms and conditions and parties performance requirements under the contract. Consequently, under the act, property owners are already required to make full disclosure of fees charged to be enforceable. Mandatory fees for nonrefundable or refundable applications fees, covered parking fees, fees for common area use such as pools and laundry room use, pest control and grounds maintenance are all terms and fees that must be included in residential rent agreements to comply with the Owner-Resident Relations Act.

The state law mandates written lease agreements that are enforceable contracts in a court of law. The act allows the parties to negotiate contract terms of any rental lease, including payment of fees of any kind. Tenants have the right to object to the fees as being unreasonable and landlords and owners who retaliate by failing to rent because of refusal to pay fees expose themselves to the Unfair Trade Practice violations and accusations that can result in triple damages under the Unfair Trade Practices Act and payment of attorney’s fees and costs.

Under the state law, no rental agreement may provide that the resident or owner agrees to waive or to forego rights or remedies under the state law.  (47-8-16 Waiver of rights prohibited.)  If an owner deliberately uses a rental agreement containing provisions known to be prohibited by law, the resident may recover damages sustained resulting from application of the illegal provision and reasonable attorney’s fees.  (47-8-17 Unlawful agreement provision.)

The remedies provided in the Uniform Owner-Resident Relations Act  are administered by the courts  to allow and  aggrieved party to  recover damages as provided in the Act.  It is the district, magistrate courts or metro courts that have  jurisdiction to enforce the lease over any person or with respect to any conduct or claim prohibited under the Act.  (47-8-10 Judicial jurisdiction.)

 METRO COURT LANDLORD-TENANT SETTLEMENT PROGRAM

The Bernalillo County Metro Court has a Landlord-Tenant Settlement Program that deals exclusively with landlord tenant disputes. If the court, as a matter of law, finds that any provision of a rental agreement was inequitable when made, the court may limit the application of such inequitable provisions to avoid an inequitable result.  (47-8-12 Inequitable agreement provision).

The mediation program is specifically for people involved in landlord-tenant disputes. The Landlord-Tenant Settlement Program  gives  landlords and tenants the opportunity to work out business agreements beneficial to both sides.  The service is free, and parties in a case  work with a volunteer settlement facilitator specially trained in housing matters.  Many of the facilitators are retired judges and experienced attorneys who will provide services pro bono.

The Metro  Court’s general Mediation program has been serving the community for 34 years and has evolved into the largest, ongoing court mediation program in the State of New Mexico.  Mediation Staff, along with professionally trained mediators, help people resolve more than 600 cases per year.  The program recruits and maintains a pool of approximately 75 professionally trained mediators who provide well over 1,000 hours of volunteer time to the court each year.

https://metro.nmcourts.gov/2020/05/06/landlord-tenant-settlement-program-to-launch-mid-may/

https://metro.nmcourts.gov/bernalillo-county-metropolitan-court/divisions/civil-unit/

ATTORNEY GENERAL

It is the New Mexico Attorney General that has the primary responsibility and authority to enforce the New Mexico Unfair Trade Practices Act,  57-12-1 to 57-12-24,  which makes unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce unlawful. The Unfair Trade Practices Act is New Mexico consumer protection act and it provides for private remedies.

https://law.justia.com/codes/new-mexico/2006/nmrc/jd_ch57art12-10897.html)

The Attorney General would also have the authority to ensure that the Owner – Resident Relations Act is being followed. Consequently, if the City Council or for that matter the tenants do indeed have legitimate complaints that there are unscrupulous landlords failing to disclose abusive fees, the Attorney General needs to step in and enforce the state’s consumer protection laws against them.   The Mayor or for that matter, the City Council can ask the Attorney General to step in and initiate action against unscrupulous landlords.

CONCLUSION

Simply put, Fiebelkorn wants rent control in the city and she refused to take no for an answer.  If the New Mexico legislature will not allow rent control, Fiebelkorn wanted to try and accomplish it indirectly through city ordinance by eliminating any and all fees paid by a tenant, regardless of legitimacy or need.

The “Residential Tenant Protection Ordinance”  was defective on its face in that there was no substantive enforcement provisions, no penalty provisions and no funding for enforcement. The “Residential Rental Permit Ordinance” was nothing more than retaliating against an entire industry that is opposed to rent control.  The new ordinances amounted to nothing more than overreaching by the city council while ignoring existing state laws  and programs that provide for specific remedies and penalties dealing with landlords and tenants.

On Friday, March 16, in a surprising 48 page decision, City Land Use Hearing Officer Steven M. Chavez granted the appeal of 7 organizations to stop the City and the charitable organization  Dawn Legacy Pointe  from constructing a Safe Outdoor Space (SOS) on two city own lots located at 1250 Menaul Blvd. NE.

Appealing the Planning Department decision were the Santa Barbara-Martineztown Neighborhood Association; Crowne Plaza hotel; LifeRoots Inc.; Sunset Memorial Park, Greater Albuquerque Hotel and Lodging Association; Menaul School; and Albuquerque Hotel Project. The SOS would be a tent  encampment for 50 homeless woman who are victims of sex trafficking.

A “Safe Outdoor Space” is defined as a lot, or a portion of a lot, developed to permit homeless encampments with 40 designated spaces for tents, allowing  upwards of 50 people, require hand washing stations, toilets and showers, and  require a management plan, fencing and social services offered.

HISTORY OF APPEAL

It was on September 28, 2022 after an appeal hearing  that Land Use Hearing Officer Steven M. Chavez sent back to the Planning Department  the original Dawn Legacy Pointe application, The hearing officer ordered   the City to give legal notice to adjacent property owners and hold a  hearing on the application.  The City Planning Department had originally granted the Dawn Legacy application for the SOS behind closed doors without giving notice to surrounding property owners, neighborhood associations and businesses as require by law. The Planning Department held no public hearing on the application and   the Family Community Services Department gave Dawn Legacy assistance in identifying city property for the SOS, assisted with its design and with the application and agreed to provide funding.

On December 22, 2022   the Planning Department  granted for a second time approval for Safe Outdoor Space (SOS)  on  the city owned lots  at 1250 Menaul Blvd, NE.   The proposed Legacy Point Safe Outdoor Space is within walking distance of Menaul School, across the street from the T-Mobile Call Center and a Quality Inn & Suites, it borders Sunset Memorial Park and one block Carrington College and two apartment complexes and immediately East of the Freeway is the massive TA Travel Truck which is known in law enforcement circles for prostitution and illicit drug activity. Immediate south of the truck stop on University Blvd is the Crown Plaza Hotel

MAJOR GROUNDS FOR APPEAL OUTLINED

The Santa Barbara-Martineztown Neighborhood Association outlined the major  grounds for their appeal which  are worth noting:

1. The City Planning Department failed to follow City policies, procedures, and regulations required for the approval of the Safe Outdoor Spaces and applications for “special use” or “conditional use” zoning.

2. The city planning department “fast tracked” the Dawn Legacy application to approve the application just 8 days before the City Council could repeal the Safe Outdoor Space amendment on August 16 thereby acting in bad faith and to the determent of other property owners and businesses in the area.

 3. The City of Albuquerque Planning Department unilaterally decided to review and grant the Dawn Legacy Point application behind closed doors without any public input, without notice to adjacent and surrounding property owners and without any public hearings.

 4. The City of Albuquerque failed to notify the SBMTNA of the Safe Outdoor Space application filed by Dawn Legacy Pointe for 1250 Menaul NE and failed to allow input thereby denying the association due process.

 5. The City Planning Department gave preferential treatment to the Dawn Legacy applicants by working with the applicants to identify city property to be used for a Safe Outdoor Space  with the City Family and Community Services Depart agreeing to fund operating costs, with both city departments not affording other potential applicants the same opportunity.

 6. The city council failed to enact operating procedures for Safe Outdoor Space encampments and failed to provide direction to the City departments charged with approving or disapproving Safe Outdoor Spaces applications and allowed approvals to be made without any kind of objective, standards-based decision-making process.

7. Dawn Legacy submitted a plagiarized operating procedure of a nonprofit unsanctioned encampment in another city and the City accepted those operating procedures.

8. The security plan offered Dawn Legacy Pointe and approved by the city for the homeless camp is defective and insufficient for the campsite to ensure safety of the tenants.

9. The City of Albuquerque Planning Department and the Solid Waste Department  knowingly allow ed  the establishment of a public nuisance in the form of a Safe Outdoor Space in the Martinez Town Santa Barbara Neighborhood. The Planning Departments actions are tantamount to the City allowing Coronado Park to become the city’s DeFacto city sanctioned homeless encampment in violation of the city’s own public nuisance law and city ordinances.

 10. The City of Albuquerque Planning Department did nothing to provide processes for development decision of 1250 Menaul NE to ensure a balance of the interests of the City, property owners, residents, and developers and ensure opportunities for input by affected parties.

 11. The operation and existence of a Safe Outdoor Space encampment at 1250 Menaul NE  have had  a determental impact on the Martinez Town Santa Barbara neighborhood and will adversely affect property values and interfer with residence peaceful use and enjoyment of their residential properties.

12. The encampment as proposed for 1205 Menaul, NE will become a magnet for crime and prostitution, or illicit drug trade given that it is in close proximity to a truck stop known for prostitution and illicit drug activity amongst law enforcement.

13.  The location is directly across the street from a major call center and a Quality Inn & Suites and within walking distance of Menaul Boarding School and apartments. Occupants of the Safe Outdoor spaces are not confined and are free to go and come as they please and will  easily wind up uninvited wherever they want to go, including the truck stop, and disrupt the peaceful use and enjoyment at any one of those locations or engage in illicit activity themselves.

ALLEGATIONS MADE BY OTHER APPELANTS

In addition to the above grounds for the appeal offered by the Santa Barbara-Martineztown Neighborhood Association, other appellants have alleged their own unique argument againsts the Dawn Legacy Point Safe Outdoor Space.  Those argument include the following:

Menaul  School argued that the safety of their students will be placed in jeopardy by the encampment and that the encampment will attract other homeless to school grounds. The school  said uninvited homeless have already been on the school grounds resulting in security measures taken,

Sunset Memorial Park argued that it is already experiencing unacceptable  trespassing of the homeless requiring increasing security and cleanup efforts. Homeless have been reported trespassing on the cemetery grounds using fountains for bathing and defecating and interfering with burial ceremonies.  The cemetery believes that the Dawn Legacy Point Safe Outdoor Space will contribute to the problem.

The Crown Plaza reported an unacceptable number of the homeless have  accosted its clientele in its parking lot and on hotel property and that the Safe Outdoor Space will attract more homeless to the area or its  occupants to the motel soliciting from the hotel clientele.

FINDINGS OF HEARING OFFICER WITH ANALYSIS AND COMMENTARY

On February 27,2023 a daylong hearing was held on the second appeal of the city’s approval of the Dawn Legacy Point Safe Outdoor Spaces before Land Use Hearing Officer Steve Chavez.

The March 16 decision of Land Use Hearing Officer Steve Chavez contains an extensive  listing and a summary of all documents reviewed by the hearing officer. Those documents include all application documents submitted by Dawn Legacy Point for the SOD,  transcripts from the previous hearings and well over 1,000 documents submitted by the parties for review. The decision also lists all witnesses who testified.

The link to review the entire 48 page ruling is here:

file:///C:/Users/HP/Downloads/SOS%20Appeals.%20LUHO%20Proposed%20Decision.3-16-23.pdfco

Quoting in part the relevant portions of the March 16 written decision of City Land Use Hearing Officer Steven M. Chavez, the hearing officer found and ruled as follows:

1. “Two of the appeal claims included that the SOS approval process under the Integrated Development Ordinance was unconstitutional and that the approval process must be vetted in a quasi-judicial public hearing, subject to public notice.  Appellants argue that because the review process lacked  public scrutiny, the administrative review of SOS applications, without a hearing, violated  substantive and  procedural due process under law.”  The hearing officer ruled that the constitutional challenges were beyond the scope of review in administrative Land Use appeal hearings.

EDITOR’S COMMENTARY: The constitutional challenges may be beyond the scope of review in administrative Land Use hearings, but such arguments are routinely made in courts of law involving zoning issues.  The Planning Department’s  failure to give notice and conduct a hearing did in fact violate substantive and procedural due process under law and will be  grounds for litigation against the city which is likely if the city persists with the encampment.

2. “All seven appellants contended that the City Staff charged with reviewing the Dawn Legacy Point application were biased or were predisposed to approve it because the land proposed to be utilized for the use is owned by the City.” The hearing officer found that  the  facts and evidence presented did not establish actual bias, or even the appearance of bias, and  were based “conjecture and nothing more.”

EDITOR’S COMMENTARY: It was not “conjecture and nothing more” that the city was biased or predisposed to approve the SOS.  The Family and Community Services Director Carol Pierce and Deputy Director Lisa Huval testified to how they  met with and worked with the Dawn Legacy Director privately behind closed doors and with Planning Department officials to find city  land and assisted them with the application process and were offered city finances. Likewise, the Planning Department officials gave guidance to the application process as well.

3. “The Appellants argued that the environmental studies in the record establish that the proposed SOS site at 1250 Menaul Blvd. NE would be harmful to occupants of the SOS use.” Land Use Hearing Office Steve Chavez disagreed and found  that “the appellants failed to establish with objective evidence that the proposed site is environmentally harmful for a SOS temporary land use.

EDITOR’S COMMENTARY: It was  illogical and made no sense for the hearing officer to simply dismiss outright the results of the environmental studies. The land is the cite of the defunct quarry used for construction of the freeway and one environmental study did say portions of the land is contaminated and that remediation was needed of the contaminates.

4. “Three of the appellants argued that the SOS temporary use will become a public nuisance or  an anticipatory nuisance or that the use conflicts with the Menaul Sector Redevelopment Plan.” The hearing office found that the argument lacked substantive objective evidence.

EDITOR’S COMMENTARY:  There is both subjective and  objective evidence that the Dawn  Legacy  Pointe SOS will become a “public nuisnance” or “anctcipatory nuisance”.   The city’s “de facto”  city sanctioned homeless tent encampment Coronado Park that had to be closed is  the prime example of what can and will happen. The City was forced to close Coronado Park after it became a magnet for crime including murders and rapes and drug trafficking. The Menaul Sector Redevelopment Plan has been approved by the City Council and was created to  try and revitalize the corridor because of crime and the homeless frequenting the area and having an adverse impact on businesses.

5. All seven appellants argued in their appeal  that the Dawn Legacy Pointe application record,  which was reviewed by City Staff and ultimately approved,  amounted  to “less than substantial evidence”  which is necessary to obtain an approval under the Integrated Development Ordinance (IDO) for a SOS use.  After meticulously reviewing each document of evidence submitted and reviewed by City Staff,  the hearing officer  agree with the 7  appellants on this contention.  The land use hearing officer found that the Planning Department’s approval of the application was  “unsupported by the record” , and as such, he concluded that “it too lacked the requisite showing  necessary under the Integrated Development Ordinance.” The hearing officer found that the City’s decision notification letter “lacked any cognizable findings, and it is in direct contravention of what is required by the Integrated Development Ordinance.”

  EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

6. “There are standards and general requirements applicable to nearly all temporary uses and specifically to a Safe Outdoor Spaces. The IDO places the responsibility on an applicant for a Safe Outdoor Space temporary use to discuss the temporary use with a Zoning Enforcement Officer (ZEO) to determine the location, duration, and potential impacts of the temporary use. The appellants argue that there was a lack of documentation in the record showing that this initial procedural step was met by the applicants and by the Zoning Enforcement Officer or a designee.” Other than oral testimony in the appeal hearings, Land Use Hearing Officer Chavez  found  no objective documentary evidence in the record that this procedural starting point  in the application process ever took place and no one within the City documented that a discussion on potential impacts of the SOS use at 1250 Menaul Blvd. 822 NE ever occurred.

EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

7. “The Integrated Development Ordinance has numerous requirements for an SOS applicant to satisfy, all of which must be supported by substantial evidence. Within the IDO, the review of an SOS application requires “as a matter of law” to  make findings, “each” supported by substantial evidence.” The appellants contended and the hearing officer agreed, that the Operational Plan, the Security Plan, the provision of onsite support, and the offering of services, all required under the IDO for a Safe Outdoor Space were are inadequate to establish substantial evidence for approval.

EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

8. “DLP’s [Dawn Legacy Point] plans also have additional shortfalls with the precision of what types of services it will offer at the SOS site, specifically with the services categorically required in IDO, … The record is bereft of any evidence that “job training,” “education services,” “recreational services, and activities for use by the occupants” can or will be offered by or through DLP.

 EDITOR’S COMMENTARY The hearing officer was correct with this ruling.

 FINAL  RULING

Land Use Hearing Officer Chavez made the following rulings:

“I find (1) that there is an insufficient factual basis to approve the application; the application is not supported by substantial evidence to satisfy explicit Use-specific Standards in the IDO; and

 (2) that the decision approving the application is not supported by substantial evidence and violates at least two IDO requirements for such decisions. To expeditiously dispose of the matter, I do not propose another remand. …  

The decision approving [Dawn Legacy Point’s] application for a Temporary [Safe Outdoor Space ] Use use permit should be reversed and the DLP application should be denied.

…

I propose that the City Council reverse City Staff’s decision and deny the application.”

NOTICE OF CITY COUNCIL HEARING

On April 3, the Albuquerque City Council will consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision.

REACTION TO RULING

Karl Holme, executive director of the Greater Albuquerque Hotel and Lodging Association, lauded the decision of the land use hearing officer.  Holme  said her organization’s members support city efforts to find solutions for the unhoused, but the two city lots at 1250 Menaul Blvd, NE   are too visible and sends the wrong message to people from out of town driving through on the interstate. Holme said this:

“That’s our one chance as a city to really promote Albuquerque. … It’s a giant billboard and it really should be a pleasant focal point. It’s kind of like our front door.”

John Salazar, an attorney with  Rodey Law Firm  who represents the Crowne Plaza Hotel, also agreed with the decision.  Salazar said homeless people who walk up and down the Menaul corridor already “make it difficult for the hotel to do business” by accosting guests in the parking lot and inside the hotel.

Salazar also noted the City council recent approval of the Menaul Metropolitan Redevelopment Area and said this:

“It makes no sense to put a tent encampment at the western entrance of the Menaul redevelopment area  … [which will  attract even more homeless].” 

Maria Rodriguez, interim spokeswoman for the city Planning Department, said the land use hearing officer’s denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved.”  In particular, the safe outdoor space is required to have 24-hour on-site services, but the application instead indicated it would provide on-call services. Rodriguez said this:

“They are welcome to reapply if they meet that requirement the next time around. … It just really seems like it was a small kind of technicality.”

The links to relied upon and quoted news sources are here:

https://www.abqjournal.com/2583124/safe-outdoor-space-on-menaul-hits-a-snag-as-hearing-officer-sides-wit.html

https://www.kob.com/new-mexico/report-cabq-land-officer-recommends-appeal-for-safe-outdoor-space-site/?utm_source=zetaglobal&utm_campaign=thumbnails&utm_medium=onsite

MENAUL METROPOLITAN REDEVELOPMENT AREA APPROVED 

Within the City of Albuquerque, there exists  what are referred to as Metropolitan Redevelopment Areas.  There are 19 known and approved Metropolitan Redevelopment Areas (MRA). Each redevelopment area has an adopted redevelopment plan that guides the City’s redevelopment strategy.  The criteria for a metropolitan redevelopment areas includes “the property’s potential for reinvestment given site location, whether reinvestment in the property would catalyze investment in the MRA area broadly and how inclusion of the area  will  further the investment and development goals and strategies.”  The inclusion of the property in a metropolitan redevelopment area “runs with land” means the requirements  would be in place for future owners and projects.

In February and March the Albuquerque Development Commission and the Albuquerque City Council respectively approved Menaul Metropolitan Redevelopment Area.   The Menaul Boulevard corridor is characterized by its important role within the economy of Albuquerque. The area is well located and central to the city with access to both Interstate 40 (I40) and Interstate 25 (I25) and in close proximity to the rail lines and the airport. There are stable and well-established neighborhoods to the north.

Menaul is home to many locally owned small businesses that provide retail, dining options, and other services, as well as larger retail and hospitality chains. Generally, the retail and service business are located along Menaul, with hotels located in proximity to I25 and I40. Generally, light industrial and storage uses are located between Menaul and I40, and between Menaul, Candelaria, I25 and the North Diversion channel.

While this is a very important area for supporting Albuquerque’s economic development, it is also an area that has problems with crime, and vacant or under-utilized buildings. The purpose of this project is to support the redevelopment and ongoing economic development of the Menaul Boulevard area. The area that this report will be focusing on are all the non-residential properties in the area bounded by I25 (west), Candelaria (north), San Mateo (east), and I40 (south).

MENAUL PROPERTY BEING LOOKED AT FOR  GARBAGE TRANSFER STATION

In addition to the Dawn Legacy Pointe plan to establish and operate a “Safe Outdoor Space” at 1250 Menaul Blvd, NE to provide a tent encampment for 50 women who are homeless and who are “sex-trafficking victims”, the city’s Solid Waste Department wants to use 1 of the 2 adjoining city owned parcels  of land for a garbage transfer station.  The transfer station would allow individual city trash trucks to drop off their loads so larger vehicles could then transport the garbage to the landfill. It has been reported that while the city  has looked at other sites for the garbage transfer station, the Menaul property is the only location currently under consideration.

COMMENTARY AND ANALYSIS

It is downright disgusting that Maria Rodriguez, interim spokeswoman for the city Planning Department, seriously downplayed the hearing officers ruling saying the denial was because Dawn Legacy Pointe “didn’t check all of the boxes to get approved”  and went on to encourage further application  before the City Council decides the case and by saying  “They are welcome to reapply if they meet that requirement the next time around.”  The comments were out of line and insulting to the appellants who raised serious, legitimate objections to the Safe Outdoor Space and who have been essentially pulled through the ringer by the City Planning Department and the Family Community Services Department who are  hell bent on granting the application and mandating two separate appeals.

PREFERENTIAL TREATMENT

Despite the Hearing Officers ruling that the allegation of biasness was unfounded and subject to speculation, it is clear that the Planning Department and the  Family and Community Services Department went out of their way to give preferential treatment and financial aid to the applicants for a Safe Outdoor Space for unhoused woman who are “sex-trafficking victims”. Never mind the fact that victims of sex trafficking need stable and permanent housing and services and placing such women in tents to live is very degrading and revictimizes them again.

KELLER MUST BE HELD ACCOUNTABLE

Safe Outdoor Spaces have been  one of the most divisive issues in the city for the last year. Safe Outdoor Space city sanctioned homeless encampments are not just an issue of “not in my back yard,” but one of legitimate anger and mistrust by the public against city elected officials and department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.

It was  Mayor Tim  Keller who first advocated  for “Safe Outdoor Spaces” and who snuck  $950,000 in his 2022 general fund budget for them.  The City Council haplessly agreed  to  Safe Outdoor Spaces and then reversed course after public outcry and the attempt to exclude them failed with Keller vetoing the measure.

Only in the screwed up “Burque World” of Mayor Tim Keller can it be imagined that 2 adjoining lots of prime commercial property own by the city worth upwards of $7 million would be used for a Safe Outdoor Space  for  a tent encampment for women who are “sex-trafficking victims” and then the city would  construct and run  a “garbage transfer station” next to it.  As has been originally proposed both the Safe Outdoor Space and the Solid Waste Transfer station would literally border on the West of the Menaul Metropolitan Redevelopment Area. The optics are so very representative of the kind of failed Mayor Tim Keller really is and how messed up he operates and thinks.

The general public has legitimate concerns that Safe Outdoor Space homeless tent encampments will become crime-infested nuisances, such was the case with Coronado Park. The homeless crisis will not be solved by the city but must be managed with permanent housing assistance and service programs, not nuisance tent encampments.

NOTICE OF PUBLIC HEARING

On April 3 the Albuquerque City Council will met and consider Zoning Enforcement Chavez’s recommendation to reverse the Planning Department’s decision to grant the Dawn Legacy Point application. Voters and residents are urged to contact and voice their opinion and tell all city councilors to vote YES on AFFIRMING the  Zoning Hearing Officers decision and to deny once and for all the Dawn Legacy Point Application for a Safe Outdoor Space.

Their phone number and email address are:

CITY COUNCIL PHONE: (505) 768-3100

CITY COUNCIL AND SUPPORT STAFF  EMAILS

lesanchez@cabq.gov
louiesanchez@allstate.com
bmaceachen@cabq.gov
ibenton@cabq.gov
namolina@cabq.gov
kpena@cabq.gov,
rmhernandez@cabq.gov
bbassan@cabq.gov
danlewis@cabq.gov
galvarez@cabq.gov
patdavis@cabq.gov
seanforan@cabq.gov
tfiebelkorn@cabq.gov
lrummler@cabq.gov
trudyjones@cabq.gov
azizachavez@cabq.gov
rgrout@cabq.gov
rrmiller@cabq.gov
LEWISABQ@GMAIL.COM
nancymontano@cabq.gov
cortega@cabq.gov
cmelendrez@cabq.gov

On Saturday March 18, the 60 day 2023 New Mexico Legislative Session came to an end at 12:00 Noon. In the last day and half, two major bills were enacted, Those bills were Senate Bill 13 protecting  abortions providers and House Bill 547, the tax package.

SENATE BILL 13

On Friday, March 17, the day before the 2023 New Mexico Legislature was scheduled to adjourn , the House enacted Senate Bill 13 with a vote of  38-30. All Republicans opposed the bill and 6 Democrats voted against it.  The bill is intended to shield doctors and nurses in New Mexico from out of state investigations targeting reproductive and gender-affirming care. The House action comes after the Senate passed the bill 26-16.  The bill now goes to Gov. Michelle Lujan Grisham and she is expected to sign it into law.

Senate Bill 13  makes law an executive order issued by Lujan Grisham in June 2022, just days after the U.S. Supreme Court overturned the landmark case of  Roe v. Wade decision allowing states to determine their own laws on abortion.  On March 16, Governor Lujan Grishma signed House Bill 7 into law that prohibits government public bodies in New Mexico from interfering with access to abortion or gender affirming care.

Senate Bill 13 centers on action originating beyond state lines.  Arizona and Texas outlaw aiding or abetting abortion.  New Mexico is increasingly serves patients from those states and elsewhere. State public agencies will  be prohibited from releasing information or otherwise cooperating with civil or criminal investigations launched from outside the state into medical providers who engage in “protected health care activity” in New Mexico, such as abortion or gender-affirming care.

A person harmed by a violation of the law could file a lawsuit seeking damages of at least $10,000 per violation.  Senate Bill 13  also make it illegal for a 3rd  party to transmit information related to a person’s or entity’s abortion or gender-affirming care with the intent to harass, humiliate or intimidate them.

It was 2021  Governor Lujan Grisham signed a bill repealing the 1969 state law criminalizing abortion  ensuring the1969 law  could not  be enforced if the Supreme Court overturned federal abortion rights. Democrats during the 2023 Legislative Session have aggressively pushed to strengthen abortion rights following the  U.S. Supreme Court decision ruling that individual states need to decide the issue of abortion.

In the 2020 Democratic primary campaigns, a woman’ right to choose and abortion played a major role in changing the makeup of the Legislature  when long serving  anti-abortion Democrats lost their Senate seats, clearing the way for the repeal of the 1969 law criminalizing abortion.

REACTION TO PASSAGE OF SENATE BILL 13

Lujan Grisham proclaimed Senate Bill 13  on abortion rights as “transformative” given the national political climate. The Governor said this:

“New Mexico stood up for science, for women, for LGBTQ families and individuals.”

Santa Fe Democrat State Representative  Andrea Romero  said the legislation adopted is designed to thwart out-of-state legal attacks. She had this to say:

“We’re in completely uncharted territory with the types of laws we’re seeing on the books now. … That’s why we’re here today — to ensure New Mexico will be a safe space for folks seeking care.”

Republican lawmakers vigorously contested the proposal attempting to stop enactment at every step. Republicans  described  Senate Bill 13  as an inappropriate strategy that would put New Mexico at odds with other states. Alamogordo Republican  Representative John Block said this:

“I don’t want New Mexico to be isolated as its own island”.

Farmington Republican Representative Rod Montoya said Senate Bill 13  would abridge free speech rights and expose anti-abortion protesters to legal liability.  Montoya also argued the bill could weaken oversight of predatory physicians or medical providers who are targeted by other states for legitimate reasons. Montoya said this:

“What we’re left to believe here is that every abortion provider is altruistic and I just don’t think we can go that far.”

The link to quoted news source is here:

https://www.abqjournal.com/2582809/responding-to-anti-abortion-laws-in-neighboring-states-new-mexico-lawmakers-adopt-proposal-intended-to-protect-health-care-providers.html

SENATE ADOPTS  HOUSE BILL 547 TAX PACKAGE

On March 17, shortly after midnight,  the NM Senate  voted 33-9 to approve the final version  of a massive tax package that will  provide $500 rebates to taxpayers and a phased  in reduction to the gross receipts  tax.  A group of  3  House Representative and 3 Senators conducted several open negotiating sessions where  they agreed on changes to the state’s film incentive program and a pared-back alcohol tax hike and other tax provisions.

TAX PACKAGE AGREED UPON

House Bill 547 tax package passed includes the following major provisions:

All New Mexicans who filed 2021 tax returns will get $500 rebate checks by this spring. Married couples filing jointly would receive $1,000 checks. The $500 rebates are less than the $750 rebate amount that Gov. Michelle Lujan Grisham proposed.

A phased in a 0.5% point reduction in the state’s gross receipts tax over the next four years. Those tax cuts could also be automatically undone if revenue levels drop significantly.  The  tax cut represents upwards of  $1 billion a year in savings once its fully phased in by 2027.

A  20% alcohol tax increase that will impose about a 1%  per drink increase on beer  and  a two-cent per drink increase on spirits. Revenue generated by the tax will  be used to bolster alcohol treatment programs in the State.  New Mexico has the highest per capita rate of alcohol-related deaths.

Veterans and retirees will get a tax exemption on military retirement pay up to $10,000 in 2022, then increasing to $30,000 in 2024.

Expansion of  New Mexico’s film incentive program  that triples the amount of allowable incentives per film project from $5 million to $15 million  for productions by Netflix or other studios that are members of a state film partnership. The plan limit the amount of annual spending on such productions to no more than $40 million per year.

A tax break for teachers’ who purchase school supplies to an expanded child tax credit.

NO TAX “PYRAMIDING” PROPOSAL

What is glaring from reading the enacted  House Bill 547 is the widely discussed  proposed tax exemption for accountants, architects and other professional services that had been proposed as a way to reduce tax “pyramiding,” or taxes being levied several times on the same goods or services.  The tax “pyramiding” legislation had bipartisan support and the Governor’s support. The tax pyramiding provision proposal has drawn fierce opposition from Albuquerque and other New Mexico cities and counties, however, as city officials argued it would reduce their revenue streams and complicate efforts to hire more police officers.

 REACTION TO PASSAGE OF HOUSE BILL 547 TAX PACKAGE

Legislators said they did not  agree with all parts of the tax package, but said the  good provisions outweighed the bad.

Governor Lujan Grisham had urged legislators to trim back the tax package saying it “cuts too deep, too quickly” and could lead to future spending cuts if revenue levels decline.

Rio Rancho area Republican Senate Minority Leader Craig Brandt lauded Governor Michelle Lujan Grisham for her role in helping broker a deal on the tax package and said this:

“Things happen up here; you change your mind sometimes. …  A lot of the things that I asked for I got, so I appreciate that.”

Democrat Senate Majority Leader Peter Wirth said this:

“Each of us have our own opinions, but it’s time to compromise and get this done. … I look at this is a first step —not the end.  … The tax bill also contain[s] a significant gross receipts tax reduction, and one of the key elements of that of that bill, and that gross receipts deduction is a trigger, so that we are sure that if those if the revenues go down, that gross receipts tax that’s in there, we’ll back off.”

Albuquerque area Democrat Senator Antoinette Sedillo Lopez expressed disappointment about the alcohol tax and said this:

“We had an opportunity to make transformational change to address a huge social problem in our state, and we didn’t do it.”

The link to quoted news sources are here:

https://www.koat.com/article/tax-package-heads-to-governors-desk/43355679

https://www.krqe.com/news/politics-government/legislature/legislative-session-closes-1-3-billion-tax-package-awaiting-governors-signature/

https://www.abqjournal.com/2583054/final-tax-package-comes-into-focus-after-lawmakers-reach-tentative-compromise-on-alcohol-tax-film-incentives.html

COMMENTARY AND ANALYSIS

Talk about cutting it close with enactment of both House Bill 547  and Senate Bill 13.  As the saying goes, “Better late than never!” The 60 day session ended on March 18 at 12 noon.  The legislative process has always been very messy, but it does work when legislator’s on both sides want it to work as evidenced with enactment of the House Bill 547 tax package.

On March 16, with less than two days left in the 2023 legislative session, two major bills have been enacted by the 2023 New Mexico Legislature, one which has been signed into the law by the Governor and the other on its way to the Governor for signatures

HOUSE BILL 7 SIGNED BY GOVERNOR

On March 16  Governor  Michelle Lujan Grisham signed House Bill 7,  the Reproductive and Gender-Affirming Health Care Act.  House Bill 7 prohibits discrimination in reproductive healthcare and gender-affirming healthcare services.  It prohibits municipalities and counties from passing ordinances that directly or indirectly discriminate against either reproductive and gender-affirming care.

It was on February 26, 2021, Governor Michelle Lujan Grisham signed a bill repealing the 1969 abortion ban. The 1969 law criminalized abortion to end a woman’s pregnancy except in certain circumstances, such as rape and incest. The repeal of the 1969 law criminalizing abortion resulted in abortions being made lagal in the state

On June 22, 2021 the United States Supreme Court released its decision in the case of Dobbs v. Jackson Women’s Health Organization wherein the Supreme Court  overruled and reversed the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and 50 years of constitutional law precedence ruling  that a woman does  not have constitutionally protected right to an abortion.  The US Supreme Court ruled the authority to regulate abortion was  returned to the individual states and their elected representatives.

As a direct result of the Supreme Court’s Dobb’s decision, abortion and woman’s reproductive rights became a defining issue in New Mexico’s 2022 Gubernatorial race between incumbent Democrat Governor Michelle Lujan Grisham and Republican Mark Ronchetti. Ronchetti made abortion and imposing limits on a woman’s right to choose a center piece of his campaign and suggested a “reasonable policy” that proposed banning abortion after 15 weeks of gestation.  Lujan Grishasm for her part pushed back and said abortion was a woman’s decision and must remain legal in the state.

In response to the Dobbs decision, the cities of Clovis and Hobbs and Lea and Roosevelt counties passed anti-abortion ordinances that impact abortion clinics’ ability to apply for licenses in those political subdivisions and also place restrictions on medication abortion.

House Bill 7 enables  the attorney general or district attorneys to sue an entity responsible for a violation. The court could apply remedies, including monetary damages. The court can also apply a $5,000 civil penalty or actual damages against the entity responsible for the discrimination.

House Bill 7  is sponsored by Rep. Linda Serrato, Rep. Charlotte Little, Rep. Kristina Ortez, House Majority Whip Rep. Reena Szczepanski, and Rep. Janelle Anyanonu.

The Governor said this about the legislation:

“New Mexicans in every corner of our state deserve protections for their bodily autonomy and right to health care. …  I’m grateful for the hard work of the Legislature and community partners in getting this critical legislation across the finish line.”   

https://www.kob.com/new-mexico/new-mexico-governor-signs-reproductive-and-gender-affirming-health-care-act/

SENATE BILL 523 SENT TO GOVERNOR FOR SIGNATURE

On March 16, a mere 48 hours after it was first introduced, Senate Bill 523 which amends the Medical Malpractice Act was unanimously passed by the House.  Governor Lujan Grisham and Senate leaders announced the compromise on March 14. Democratic Senate Majority Leader Peter Wirth and Republican Minority Leader Gregory Baca had been working together on this bill since a Senate committee set it aside earlier versions this month.

Changes to the Medical Malpractice Act was one of the most contentious and very emotional issues this year in the 2023 New Mexico legislature to deal with  medical malpractice claims and the need to place reasonable caps on such claims.  At the very core of the issue is the 2021 rewrite of the medical malpractice law.

The changes to the medical malpractice law centers on medical clinics that are not owned by hospitals. Surgical centers and urgent care clinics independently owned by physicians were included with larger hospital insurance coverage requirements.  The potential closure of independent clinics loomed large because of the medical malpractice insurance coverage requirements.  Much smaller, independent medical clinics are a critical part of New Mexico’s health care system network, especially in rural New Mexico.

The 2021 rewrite made it impossible for New Mexico licensed doctors to secure and afford medical malpractice insurance with a $5 million cap when they practiced in independent outpatient clinics. Some standalone emergency rooms, urgent care centers and surgical clinics with maximum malpractice payouts with an insurance coverage cap set at $750,000 would have seen the cap rise to $6 million by 2027 under the 2021 law rewrite  that included them in the same category as hospitals.  Independent outpatient clinics were faced with the crisis of being unable to obtain the medical insurance they needed to continue operating.

Senate Bill 523 places a $1 Million cap on claims for independent healthcare facilities, such as urgent care, ambulatory surgical centers, and free-standing emergency rooms that are not hospital controlled. Had the Medical Malpractice Act  not been amended, the cap would have increased to $5 Million in 2024 and resulted in the closure of many small healthcare facilities that would not have been able to afford the insurance.

With passage both the House and Senate, malpractice insurance compromise now goes to Governor Michelle Lujan Grisham’s desk for her signature.

https://www.kob.com/new-mexico/compromise-measure-on-medical-malpractice-legislation-headed-to-governors-desk/

COMMENTARY AND ANALYSIS

Talk about cutting it close with enactment of both  House Bill 7 and Senate Bill 523.  The 60 day session ends on March 18 at 12 noon.  The legislative process has always been very messy, but it does work when legislator’s on both sides want it to work  as evidenced with enactment of the compromise Medical Malpractice Act.

The blunt truth is time has totally run out on major bills, especially the gun control measures.  Many of the gun control bills have not  even had 1  committee hearing, only a  few have made it through just 1  chamber and only House Bill 9 known as “Bennie’s Bill” dealing  with unlawful access to firearm by minor’s has been enacted and signed into law by the Governor.

With only two full days remaining in the 2023 New Mexico legislative session, the New Mexico House a Representatives, on a voice vote,  passed House Bill 2 and sent the $9.6 billion budget to Governor Michelle Lujan Grisham. It is the largest budget enacted in state history as a direct result of $3.6 Billion in additional revenue from oil and gas production.  Ongoing spending contained in the bill have been increased by 13.7% or about $1.2 billion over current levels.

The House vote was a concurrence with the Senate’s amendments to House Bill 2.  The Senate amendments include an additional $130 million in recurring spending for initiatives to address hunger and new investments in the New Mexico Opportunity Scholarship college tuition fund. The Senate  amendments authorized more spending than the House but the budget still has 30% in reserves projected.  House Bill 2 contains funding for 6% raise for state employees and educators, sharp increases in prekindergarten and child care assistance, higher Medicaid reimbursement rates intended to better compensate doctors and appropriates $100 million in one-time funding for a law enforcement officer recruitment fund.

BUSGET SIZE CONDEMNED AND ALLLEGATIONS OF “SHENANIGANS”

The passage of House Bill 2 did come with drama.  The size of the budget was condemned and accusations of lack of transparency and behind closed doors shenanigans were made.

During the House debate, accusations were made about the way the Senate Finance Committee amended the budget and added more funding just a day after the committee had already approved the bill. The additional Senate amendment annoyed Republican senators on the committee  and those Republicans  raised questions about “behind-the-scenes deals”  and political pressure for changes that may have come from the Governor’s Office.

Artesia Republican Representative Jim Townsend and other  House Republicans expressed concern about the 14% increase in spending saying it is “troublesome” in a state where so much revenue comes from the boom-or-bust oil and gas industry. Townsend said this:

“I don’t think we can sustain it.”

Gallup Democrat Patty Lundstrom, D-Gallup,  long serving  the chair of the House Appropriations and Finance Committee before House Speaker Javier Martínez removed her at the beginning of the session,  asked  whether the Senate’s amendments were proper and admonished the Senate Committee.  Lundstrom urge the House to reject the Senate amendment and said this during debate on the house floor:

“We talk about transparency and we talk about how everybody has to see everything … that is not my impression of what happened in the other chamber.  I think it was not handled properly. … I hope the House stands its ground and doesn’t roll over for the other side. … I talked to different members on the Senate Finance Committee who said that [when] the [budget] bill rolled out, they didn’t know what was in it because of closet negotiations happening without their input. …   We may not be sure [what] shenanigans happened. …  I’m concerned when a group tries to pull the wool over the eyes of its own committee.”

Las Cruces Democrat Representative Nathan Small, who succeeded Lundstrom as Chairman of the powerful House Appropriations committee said he was comfortable with the Senate changes. Small said this:

“We are investing in education. We are investing in infrastructure. We are making the largest investment in public safety, and we are saving more money than we have ever saved before. … [The budget] leaves a reserve fund of roughly 30%. [I am keeping a] cautious eye on oil and gas revenues.”

SENATE BUDGET AMENDMENTS QUESTIONED

It was on Sunday, March 13, that the Senate voted to approve House Bill 2 and the $9.6 billion budget, but it did so with amendments which required the bill to go back to the House to consider the budget as amended by the Senate.  The full Senate voted 25-16, with all Democrats except Tohatchi  Senator Shannon Pinto voting in favor and all Senate Republicans voted against the bill.

The Senate Finance Committee had approved revisions to  the budget House Bill 2  on Saturday  March 11, but the committee voted to bring back the spending plan  for additional amendments before it advanced to a full senate chamber vote later in the day. One particular budget line-item that drew strong objections was $2 million for the Department of Game and Fish to protect threatened species.  The appropriation was deleted  in  the  previous version of the budget bill and it  was restored.

Many of the budget bill changes adopted by the Senate were in response to concerns raised by the Governor’s Office after the House passed its version of House Bill 2. The areas of disagreement include proper funding levels for the Opportunity Scholarship, a tuition-free college program championed by Lujan Grisham, and child care assistance programs. The final changes also included revised budget language for how roughly $250 million should be spent to extend New Mexico’s annual public-school calendar.

Democrats and Republicans voiced frustration about the last-minute changes to the spending plan.  Some lawmakers defended the  revisions and said they were necessary to ensure a budget bill that Gov. Michelle Lujan Grisham would  sign. Gallup area Senator George Muñoz, the Senate Finance Committee’s chairman, said he tried to be transparent in his handling of House Bill 2 after it passed the House last month, but acknowledged difficulty in modernizing a system that has long been shrouded in secrecy.

The last-minute Senate amendments drew sharp accusations from Republican  senators who suggested the Governor’s Office and some top lawmakers had conspired on the changes. Broadview Republican Senator Pat Woods said this during the committee hearing:

“We shouldn’t be putting the stuff in here without running it through the process, letting every legislator in the House vote for it, before we just stick it in the dadgum budget as a personal piggy-bank.”

Senate Minority Whip Craig Brandt, R-Rio Rancho, said this on the Senate floor:

“There’s a lot of us that still don’t have any idea what’s going on with the budget.”

Some Republican senators suggested the last-minute changes represented an end-run of sorts around this year’s budget-drafting efforts. Elephant Butte Republican Senator  Crystal Diamond, said during Sunday’s debate:

“It’s just unfortunate that our values and our priorities got undermined.”

The links to news sources quoted are here:

https://www.koat.com/article/new-mexico-legislature-2023-budget/43337294

https://www.kob.com/new-mexico/legislature-passes-budget-other-bills-move-forward/

https://www.krqe.com/news/politics-government/legislature/record-9-6b-spending-plan-heads-to-new-mexico-governor/

https://www.abqjournal.com/2582091/final-approval-granted-to-budget-sending-9-6b-spending-plan-to-governor.h

https://www.santafenewmexican.com/news/legislature/house-sends-budget-bill-to-governor/article_607c2db6-c337-11ed-b852-fb14c35abbe9.html

https://www.abqjournal.com/2581253/senate-votes-25-16-to-approve-massive-spending-bill-but-some-lawmakers-unhappy-about-political-arm-twisting.html

COMMENTARY AND ANALYSIS

Talk about cutting it close and with politcal drama and a few sour grapes from both Democrats and Republicans thrown in for good measure.  The legislative process has always been very messy and the legislature delaying as long as it did enacting the 2023 budget did not help in the least, but that’s New Mexico politics.

The 60 day session ends on March 18 at 12 noon. The Governor has until April 7 to act on the budget and she has the power of line-item veto where she can review specific appropriations and line item.

Just two years ago, the Governor line item veto a number of capital improvement appropriations sponsored by individual legislators and all hell broke loose with threaten overrides by the legislature. To quell the controversy, a special session was held to deal with the capital improvements budget.

The Governor would be wise to talk to more than a few legislator’s before she excercise her line item veto authority.

One of the most contentious and very emotional issues this year in the 2023 New Mexico legislature has been medical malpractice claims and the need to place reasonable caps on such claims. At the very core of the issue is the 2021 rewrite of the medical malpractice law.  The rewrite made it impossible for New Mexico licensed doctors to secure and afford medical malpractice insurance with a $5 million cap when they practiced in independent outpatient clinics.  Independent outpatient clinics were faced with the crisis of being unable to obtain the medical insurance they needed to continue operating.

The proposed changes to the medical malpractice law centers on medical clinics that are not owned by hospitals. Surgical centers and urgent care clinics independently owned by physicians were included with larger hospital insurance coverage requirements.  The potential closure of independent clinics loomed large because of the medical malpractice insurance coverage requirements.  Much smaller, independent medical clinics are a critical part of New Mexico’s health care system network, especially in rural New Mexico.

Some standalone emergency rooms, urgent care centers and surgical clinics with maximum malpractice payouts with an insurance coverage cap set at $750,000 would have seen  the  cap rise to $6 million by 2027 under the 2021 law rewrite  that included them in the same category as hospitals.   Urgent care centers and surgical clinics argued they will be unable to afford or even obtain malpractice insurance with a cap that high. Proposals backed by the doctors were rejected by Democratic lawmakers in both legislative chambers earlier this session.

Patient advocates challenged the  claims made by clinics and physicians and argued patients who face lifelong effects of medical procedures gone wrong deserve fair compensation. Patients and their advocates testified against  measures reducing the cap early in the session, describing heartbreaking stories of injury and death caused by medical mistakes.

Under Senate Bill 523, introduced in the Senate Tax, Business and Transportation Committee on March 14, those small, independent medical practices would see a permanent payout cap of $1 million starting in 2024.  The threat of medical malpractice claims and mandated insurance threatened to reduce  even further the State’s shortage of doctors. The state is facing a major  shortage of medical providers with the number of physicians in New Mexico falling 30% between 2017 and 2021 according to one story.

SENATE BILL 523 BIPARTISAN COMPROMISE ANNOUNCED

On March 14, a mere 4 days before the end of the 2023 New Mexico legislative session, Governor  Michelle Lujan Grisham  announced that a bipartisan  agreement had been reached aimed at ensuring independent outpatient clinics will be able to obtain the medical malpractice  insurance they need to continue operating in 2024.  The governor announced the new legislation during a morning news conference at the Capitol, where she was flanked by Democrat  Senate Majority Leader Peter Wirth, D-Santa Fe, and  Republican Senate Minority Leader Greg Baca, R-Belen.  The compromise is that independent clinics’ financial exposure to legal claims will increase from $750,000 next year as planned but with a $1 million cap on damages rather than the $5 million limit that had been set to take effect.

Under Senate Bill 523, a patient who files a medical malpractice claim against an independent clinic could recover up to $1 million, but the patient compensation fund, not the independent clinic, would cover the portion of the damages between $500,000 and $1 million. The $1 million cap would be adjusted for inflation, starting in 2025.  Senate Bill 523  also includes provisions excluding federal health care facilities from New Mexico’s medical malpractice law and they will not  be subject to the caps on damages. The bill also requires public tracking of claims and settlements involving outpatient clinics. The compromise is supported by the trial lawyers association and an array of groups representing doctors, hospitals and nurse practitioners.

In announcing the compromise, Governor Lujan Grisham said it was clear that under the  2021 rewrite of the medical malpractice law that small  independent outpatient the clinics could not  obtain full legal insurance with the $5 million cap but could with the $1 million compromised cap.  According to the Governor insurance companies, whom she reached out to, have confirmed they can provide coverage under the proposed changes to the law.  The compromise is  intended to strike a balance that ensures doctors can continue to practice in independent clinics and patients can obtain justice in court for medical errors.

The negotiated compromise agreement in contained in Senate Bill 523. What is impressive  is that it is jointly sponsored by the Democratic and Republican leaders in both legislative chambers which should ensure quick passage in both chambers.  The governor said Democratic and Republican leaders in the House backed the bill and had signed onto it as sponsors.

Senate Majority Leader Peter Wirth, D-Santa Fe, and Senate Minority Leader Greg Baca, R-Belen, both trial attorneys, helped produce Senate Bill 523  by overseeing last-minute talks between a physicians’ group and trial lawyers representing patients. Both Senators acknowledged that the governor helped “close the deal”.

Wirth was first approached by patient attorneys last year, he said, adding they wanted help finding common ground with medical providers.

Baca said doctors and other health care professionals had contacted him last year with concerns about the higher malpractice caps.

Senator Wirth  said  he was first approached by patient attorneys last year who said  they wanted his help finding common ground with medical providers.  The negotiations produced a bill the lawyers and doctors say they can live with.  He said the comprise they agreed is far more preferable than having lawmakers force an agreement upon them. Senate Majority Leader Peter Wirth said this:

“This is the kind of issue that really needed to be resolved by the parties. … [If the bill becomes law]  it will create stability for current providers and it creates more certainty for new outpatient facilities looking to open up in New Mexico.”

Sanator Baca said doctors and other health care professionals had contacted him last year with concerns about the higher malpractice caps. Senator Baca for his part said this about the compromise:

“We’ve come to a compromise here that is going to be workable and functional for a long time.”

The link to a quoted news sources are here:

https://www.abqjournal.com/2581675/bipartisan-compromise-reached-on-medical-malpractice-legislation.html

https://www.santafenewmexican.com/news/legislature/governor-announces-compromise-measure-on-independent-facility-medical-malpractice-payouts/article_0b29f2ea-c273-11ed-b61a-bf24efe83a38.html

https://www.kob.com/new-mexico/governor-lawmakers-attempt-to-revive-medical-malpractice-law/

March 14, New Mexico Political Report “Governor announces compromise-measure on medical malpractice payouts”   https://nmpoliticalreport.com/

COMMENTARY AND ANALYSIS

On March 14, Senate Bill 523  won unanimous endorsement from the Senate Tax, Business and Transportation Committee. It will now be presented to the full Senate on Wednesday  March 15 and once passed it will  advance to the House.  Once it passes  the Senate,  the legislation will  have to clear at least one committee in the House of Representatives before hitting the House floor before noon Saturday, when the session ends. The passage of Senate Bill 523 will be one of the most consequential pieces of legislation enacted during the session and the House needs to act swiftly.