Metal plant appellant alleges violation of law

August 20, 2009

A Rio Communities resident who lost an appeal of the Valencia County Planning and Zoning Commission’s approval of preliminary site plans for a proposed metal recycling plant to be built in the Rio Grande Industrial Park told county commissioners last night that he thinks they violated the state’s Open Meetings Act.

In June, Joseph Rizzo, one of two appellants, asked the county to delay consideration of his and Alice Torwirt’s appeal until he returned from out of state. The county commission denied the request by a 2 to 1 vote.

On July 8, the commission heard the appeal with Rizzo participating by speaker phone. During the meeting and afterward, Rizzo indicated he was having trouble hearing the arguments being made by people present in the commission chambers.

Rizzo said his inability to hear is a violation of the Open Meetings Act.

“The Open Meetings Act specifically requires that such conferences be done in such a way that all parties can hear clearly,” he told the commissioners. “I must inform you that in this case I was not able to hear most of what was being said in the meeting. It was so difficult to hear that I had two remote telephones, one on each ear to try to make out what was being said.”

Rizzo said he didn’t hear some testimony at all. He also said he was asked to respond to testimony without having clearly heard what he was being asked to respond to.

“I believe my right to due process under the Open Meetings Act has been denied,” he said.

The section Rizzo claims was violated possibly exclusively applies to members of public bodies who participate by speaker phone. It says the public body must be sure “members of the public attending the meeting are able to hear any member of the public body who speaks during the meeting,” including commissioners speaking by phone.

In this case, Rizzo was speaking by telephone, not any commissioner.

Another section of the law, however, says “all persons desiring shall be permitted to attend and listen to the deliberations and proceedings.” Rizzo had the desire to attend and was permitted to listen, but he, of course, said he wasn’t able to hear all of the deliberations and proceedings.

While Rizzo hasn’t filed a formal complaint with New Mexico’s attorney general, he’s considering doing so.

He said the potential violations are much broader than the one issue he’s discussing publicly. There may be other implications in the law for the county related to Rizzo’s participation as an appellant.

He also said the violations may be grounds for a future lawsuit.

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