The Santa Fe Review

September 13, 2006

32. The Case of the Clovis Pigs

At a Neighborhood Network meeting Monday night, the new city attorney, Frank Katz, made an extraordinary suggestion: he is not enforcing the existing ordinance against vacation rentals in residential areas because he is afraid the city might be sued. Since his predecessors have ignored the violations for so long, Mr. Katz contended, cracking down now would constitute "selective enforcement."

Veiled threats of litigation have long been one of the real estate industry's methods for getting its way. Any number of Santa Fe property owners have deeper pockets than City Hall's. Fear of legal action was given as a reason why the Planning Department rubber-stamped the Davis mansion plans.

Groups like the Neighborhood Network have operated under the old-fashioned idea that change can be effected through the legislative process. Given the prevailing situation, that is starting to seem naive.

At the same meeting, Fred Rowe, a retired lawyer and president of the organization, broached a more aggressive approach: suing City Hall for damages caused by willfully ignoring infringements of its own laws.

He cited a decision, Edwards v. the City of Clovis, in which the New Mexico Supreme Court ruled that a municipality cannot, as Mr. Rowe put it, "refuse to enforce valid ordinances to the detriment of impacted neighbors."

The case involved a prohibition against keeping pigs within 300 feet of another residence. Most short-term renters are presumably better behaved, but the legal principle is the same. When its laws are being broken, a city has an obligation to protect the victims not the violators.

In the case of Santa Fe, City Hall's liability may be even greater: It has been advertising vacation rentals, including illegal ones, on its official Convention and Visitors Bureau website.

September 14, 2006

Update

Mr. Katz, the city attorney, has written us to offer a clarification of his statement at the recent Neighborhood Network forum:

"What I believe I said Monday night was not that I was
afraid of being sued for selective enforcement, but that I
was concerned that anyone cited under the ordinance could
defend a prosecution on those grounds. My reason for not
publicly stating that after today's date the City Prosecutor
will enforce the law is precisely out of my respect for the
legislative process which is now seriously grappling with
how to deal with this thorny issue. I do not think that a
grandstanding prosecution will further reasoned discussion
at this time. Should the City Council reject change in the
ordinance, a change in enforcement policy will definitely be
forthcoming."

He is also quoted in this morning's Journal in a story by Russell Max Simon about the promotion of illicit short-term rentals on the city's Convention and Visitors Bureau website. Mr. Katz opines that this is not a legal problem and goes on to say that it "would be just rude of me" to enforce the law while the Council is considering amending it.

The situation sounds remarkably similar to that of the Clovis swine. Faced with a complaint about pig-keeping neighbors, the town not only refused to prosecute: it voted to change the ordinance and make the activity legal. The Supreme Court ruled, however, that the plaintiff still had a grievance to pursue:

"the city could not, by enacting an ordinance, effect or
change what would be [the] result of a pending action before
the court, based upon valid ordinances existing at [the]
time of the application for the writ . . ."

If Santa Fe changes the rental law to accommodate the violators, its legal troubles may have just begun.

George Johnson

Postscript

I noticed this afternoon that among the advertisements the Google computers are inserting into the Tom Ford Webcam page is one for an outfit called Casas de Santa Fe that is offering rent-by-the-night lodging on Canyon Road, Camino Delora, Montoya Circle, and other residential streets. (Canyon, in its lower reach, is zoned "residential/arts & crafts.") The dilemma is whether to enjoy the irony and some extra pennies for The Santa Fe Review's advertising fund (mentioned earlier on this page and now totaling $2.34) or to block the ads with Google's filters.

September 18, 2006

The Sunday Papers

Mr. Simon strikes again. He continues to scoop the New Mexican on the short-term rental story with a piece in Sunday's Journal picking up on the case of the Clovis pigs. He quotes lawyer Fred Rowe: "The legal principle seems to be quite clear, namely that once there is a valid ordinance on the books, it becomes a ministerial duty of the municipality to enforce it. . . . It's not every day that you have a Supreme Court case in the state of New Mexico that is as clear cut as this one."

Mr. Katz, the city attorney, continues to maintain the curious position that a municipality has no obligation to enforce its laws. He uses speeding as an example. "Do prosecutors have to prosecute every single offense?" he asks. "Of course not."

Which is completely beside the point. As Mr. Rowe notes: "This is not a situation of sporadic enforcement. . . . Rather, it is a policy decision by the city not to enforce this ordinance."

A number of Santa Feans have submitted formal complaints about specific violations of the rental law, with names, locations, and descriptions of the offense. By studiously ignoring them, while advertising the violators' illegal wares on a tax-supported website, the city leaves itself open to the impression of partiality, and to what could be a very interesting legal case.

On another matter, I noticed that by Thursday evening -- four days earlier than previously reported -- the Santa Fe River was bone dry. A commentary in the Journal by opinion editor Karen Peterson and a letter in the New Mexican point out the absurdity of stocking the stream with fish only to shut off the water a few days later and let them die. Another symbol of a city with no clear vision and, it so often seems, no one really in charge.

George Johnson

September 21, 2006

33. The San Juan-Chama Shell Game Revisited

In late September 2004, Chapter 2 of Dispatches from the Water Wars began with a flashback:

This was the headline: CITY, COUNTY
CONSIDER RIO GRANDE DIVERSION. And
this is how the story began: "Faced
with low snow pack and the prospect
of a dry year ahead, Santa Fe city
and county governments are jointly
studying the possibility of
building a structure to take water
directly from the Rio Grande to
supplement water supplies." The
final report, a city water official
estimated, would take half a year
to complete. This would be followed
by 18 months of planning and legal
work and, depending on
"unpredictable political and
economic factors," another 18
months for construction --
altogether about four years.

The story appeared in the New
Mexican on March 22, 1996, eight
and a half years ago.  Last week, a
brief report on page B1 provided a
progress report:  city and county
officials are still arguing over
how to pay for the project, which
is nowhere near breaking ground.
The estimated cost has crept from
$20 million to $100 million -- or
maybe $120 million, the figure used
in Journal North's story last
Sunday. The anticipated completion
date is now 2008 . . . . Santa Fe,
it seems, is on a treadmill running
eagerly toward a carrot dangling
perpetually out of reach -- always
four years away.

Now another two years have passed and the project has moved a few more inches ahead. The city and county have finally agreed on how to split the operating expenses, an issue that was thought to have been settled long ago. The projected cost is now given, with absurd precision, at $158.7 million (a 33 percent increase) with the diversion and state-of-the-art filtering plant optimistically projected to be up and running by the end of 2010 -- just in the nick of time. The Draft Environmental Impact Statement for the facility states that it is "designed and constructed with the capacity necessary to meet the City's and County's near-term needs for water through the year 2010."

Given these constraints a headline in yesterday's Journal is almost cruelly misleading: "Area's Water Future Is Flush." The story refers to the signing of an agreement by Santa Fe, along with half a dozen other municipalities, to extend in perpetuity the contract (which had been scheduled to expire in 2016) for water from the federal San Juan-Chama project.

What does this mean? For time immemorial, the city of Santa Fe will have the right to use its annual allotment -- a maximum of 5,230 acre-feet -- channelled from the San Juan River into the Chama and on into the Rio Grande. In return the city can cease pumping the rapidly declining Buckman well field, which now provides an average of approximately 5,000 acre-feet a year. The result, in other words, will be an even draw.

To accommodate future growth, the city might be able to compete for increasingly more expensive rights to native Rio Grande water -- if it can find a way to extract it. The total capacity of the future Rio Grande diversion is already spoken for: 8,730 acre-feet with 1,700 going to the county and 1,800 to the mansions of Las Campanas. At first these two other customers will not be using their full portions. Maybe for the time being they could be persuaded to lease back some of it.

Unless they can get a better deal from Albuquerque -- or Pojoaque, Los Alamos, Bernalillo, Los Lunas, Belen. . . . Unless the Colorado snow melt, the source of the San Juan water, continues to decline while other demands -- endangered species, the Navajo Irrigation Project -- cut further into the supply . . .

With so many uncertainties, there is no reason to feel flush. The Rio Grande Diversion will provide insurance against an environmental catastrophe -- the geological collapse of the overpumped Buckman or Santa Fe aquifers, a fire in the watershed, or the accidental breaching of one of the upper canyon dams. Without the diversion it would be difficult to maintain even current water use. But something tells me that two years from now we'll be picking up the paper to read that the $300 million project is on target for completion in 2012, barring some unforseeable complications.

Kurt Young, Santa Fe Grassroots instigator (or, perhaps, fall guy) is back in the news. In addition to real estate, we learn in the Journal, he has been engaging in another kind of speculation -- toilet retrofits. A developer who says he was sold more than $50,000 worth of phony credits is suing Mr. Young, who attributes the problem to a bookkeeping error.

George Johnson

on to Part 34 . . .

Coming Soon: The Battle for Talaya Hill

The Tom Ford Webcam

The Andrew and Sydney Davis Webcam

Santa Fe Review Detours of the Wild West

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The Santa Fe Review

More links:

See the current flow of the Santa Fe River above McClure Reservoir with the USGS automated gauge.

The Otowi gauge shows the flow of the Rio Grande north of Santa Fe.

Santa Fe water information, a collection of documents and links

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