An attorney for the Los Chavez Community Association and more than 40 Los Chavez residents argued in district court today that the Valencia County Commission shouldn’t have rezoned 40 acres of agricultural preserve land to rural residential, calling the zoning change “arbitrary and capricious.”

The zoning change to Rural Residential 2 (RR-2) took place early last year after a public hearing before the county commission.

The change means the 40 acres can be subdivided into two-acre lots, instead of five-acre lots under Agricultural Preserve (AP).

If the RR-2 zoning is upheld by the district court, the land, owned by John Whisenant and Rep. Elias Barela, will be subdivided into lots between 2.5 and 2.2 acres for 15 homes in a development the owners called Rancho de Los Chavez. As AP, the owners could construct eight homes.

The attorneys argue

According to Catherine Davis, representing the association and residents, the county’s zoning ordinance sets criteria for rezoning AP land that goes above and beyond what’s required of attempts at rezoning non-AP land.

She said Whisenant and Barela failed to provide substantial evidence to meet much of the criteria.

One criterion requires evidence indicating land in the area of the AP rezoning request has been changed, to show a pattern of development or higher density.

Since 1999, Davis said, there have been no changes to the zoning of land in the area, except when land that was RR-1 (a one-acre minimum) was changed to RR-2 to require two-acre minimums.

“It increased the lot size. It didn’t allow a higher density,” she said.

That was done in part to preserve open space and agriculture to allow recharge of the valley’s aquifer, she said.

“The valley is a highly sensitive aquifer recharge area,” she said.

Steven Chavez, the attorney for Whisenant and Barela, said there was also a change in 2005 that reduced the AP minimum acres from 10 to five, increasing the density.

“That’s a major change,” he said.

It didn’t change the zoning of any land in the area, however, just the subdivision minimum.

Davis said the land was zoned AP in the 1970s, a point countered by Chavez, who said the first “real” zoning of land in Valencia County was in 1986.

Whisenant purchased 30 acres of the total 40 acres in 1977, after the AP zoning was put in place, according to Davis. Barela, owning the other 10 acres, purchased his land much later.

When the land was zoned in 1986, it remained AP. When the county took a comprehensive look at county zoning in 1999, the AP zoning for the land remained in place.

While the appeal filed by the association and residents is against Valencia County, Chavez, who wasn’t representing the county, argued the critical points.

Chavez said 49 percent of the rezoned land — 19 of 40 acres — is being set aside for agriculture, with those 19 acres subdivided among the 15 lots.

There’s been a lot of debate during every step of the process over whether or not the 40 acres can be farmed. At times Chavez, Whisenant and Barela have argued it can’t be farmed, which is why it’s perfect for housing. But at the same time, all three have touted the 19 acres being set aside for farming.

Regardless, Davis said the 40 acres has been farmed and can continue to be farmed. After subdividing the land down to two-acre lots, even with 19 acres set aside for agriculture, farming could decline, she said.

“There’s no evidence it’ll be used for agriculture. There is evidence there will be housing,” she said.

After homes are built, she pointed out, there will be little water left from the water rights to allow for adequate irrigation of the 19 acres. She also said farming on 15 separate lots owned by 15 different people could burden the water rotation schedule among nearby farmers, harming their agricultural activities.

Chavez said the land will be regulated by restrictive covenants that could require an agricultural use.

He said it’s also a planning goal of Valencia County to encourage master-planned communities that cluster homes.

One criterion for the approving the zone change was to show the development would have adequate water and wastewater infrastructure.

Davis made the argument that wells and septic tanks at the development will negatively impact the groundwater, saying the Valencia County Planning and Zoning Commission was concerned about it and that’s why that commission voted against the zoning change.

Chavez said a hired professional had testified during a public hearing that the development could meet all state and county laws to provide the infrastructure.

Otero-Kirkham’s vote

Beyond arguing zoning law and court precedents, the attorneys debated whether or not it was appropriate for Commissioner Georgia Otero-Kirkham to vote when the issue came before the county commission.

Otero-Kirkham is Barela’s first cousin. She was the tie-breaking vote when the commission decided to rezone the land as rural residential.

Davis, citing the New Mexico Code of Judicial Conduct, said Otero-Kirkham should have recused herself from the vote because an objective observer would have seen a conflict of interest. She said it didn’t matter whether or not there was a bias “in reality,” but rather it matter if there was the “appearance of bias.”

She noted that one citizen had openly questioned the conflict of interest during the public hearing on the matter before the county commission, and that Otero-Kirkham herself realized there was the appearance of bias when she asked the county attorneys to clarify if she could vote.

“The commissioner should have recused herself. Her vote was improper,” Davis said.

Chavez countered that the code of conduct doesn’t apply to Otero-Kirkham because she isn’t a judge.

He also said the New Mexico Judicial Standards Commission is the body that investigates complaints concerning the code, suggesting it isn’t the duty of the district court.

Adren Nance, the county’s attorney, said there’s nothing that says the commissioner must recuse herself from voting on matters involving cousins, calling Davis’s argument weak.

“This is basically, in my opinion, an argument of last resort,” he said.

District Court Judge John Davis said he will work to decide the case within a month.

While Whisenant was in the courtroom today, Barela wasn’t.

Chavez said Barela couldn’t attend because he was required to be present for a roll call vote on the state’s budget at the legislature. Had he left to attend the court hearing, Chavez said, the New Mexico State Police could have arrested him.

This page was published on February 5, 2010 at 4:01pm and is filed under Economy.