Skate Park hits legal snag with appeal

-A A +A
By Jennifer Garcia

The skate park and its proposed location site near Mesa Public Library have been topics of interest for many Los Alamos residents in recent months. While it seems that Los Alamos youth want the skate park downtown, some residents like Jack and Colleen Hanlon would like to see it located somewhere other than the library site.

In an effort to get County Council to reconsider the location, the Hanlons filed a Notice of Administrative Appeals in First Judicial District Court on Aug. 8.

According to court documents, the appeal was filed pursuant to Rule 1-074 NMRA and Section 39-3-1.1, NMSA 1978 to set aside the decision of the County Council in which the county affirmed the decision of the Planning and Zoning Committee approving a site plan for a proposed skate park.

A letter addressed from the Hanlons’ attorney, Frank T. Herdman of the Rubin Katz Law Firm in Santa Fe, to Dan A. Gonzales, Esq., assistant county attorney, notified the county of the court action.

Colleen Hanlon explained her decision to appeal by saying, “The process wasn’t being followed. They brought the location in front of the library to the White Rock Council meeting, and asked to have that voted on to let them have that location. The Council did, even though (council member) Jim West had reassured us in an e-mail the night before. He said, ‘don’t worry; we’re not going to take a vote. We need more public meetings. Personally, I don’t think it’s the right location.’”

After the White Rock meeting, Colleen sent him another e-mail, asking if they were talking about the same thing. According to Colleen, West told her that it was a wonderful presentation, and once she saw it, she’d fall in love with it, too. Colleen says that there was no citizen involvement in the decision to push ahead with the library site.

“There are about 100 families that live around the library. None of them were talked to. They probably figured it would not be popular. They always said they couldn’t talk about the site of location. We’ve gone to Council meetings to try to get them to look at other sites, but they continued their steamroller.”

Jack Hanlon didn’t think the hearing they got in front of Council concerning the appeal of their decision was fair and unbiased.

“They made up their minds on June 27, and have never wavered. They agreed to look at a location south of the community building, but they refused to take the other (library) location off the board. Planning and Zoning was restricted in what they could consider.”

According to Herdman, the bottom line is that the Hanlons wish to see the library site removed from consideration for the skate park because it is inconsistent with the committee’s vision, as set forth in the downtown master plan. In addition, Herdman said that his clients have communicated to the county attorney’s office, their position, that the document that was signed by the council chairman does not provide an explanation of the Council’s action, as required by New Mexico law and that procedurally needs to be corrected.

The County now has 30 days in which to respond to the Hanlons’ appeal.

When asked what the County intends to do about the appeal, County Attorney Mary McInerny said, “We have no knowledge at this time what they are basing their appeal on. All the court documents say is that they intend to appeal. We are putting the record together to be made available to the court. We will make sure they get a copy of the full record.”

McInerny said the County Attorney’s office will defend the action of the county.

The skate park issue has been placed on the agenda for the Aug. 19 meeting to be held at 7 p.m. at the White Rock Town Hall.

Herdman states in the court record that, “the Hanlons also object to the form of decision rendered by the Council for the following reasons. Section 16-2 of the Los Alamos Development Code, was adopted pursuant to the authority contained in NMSA 1978 Sections 3-19-1 to 3-21-26, et seq. The decision rendered by the County on July 29, 2008, in response to the appeals filed by the Hanlons’ and others is most certainly the appeal of an action that was made by the Planning and Zoning Commission pursuant to the New Mexico Zoning Enabling Act, specifically Section 3-21-1, et seq. Referenced in the foregoing section of the code. The appeal was filed pursuant to the statutory authority set forth in Section 3-21-8 that provides for administrative appeals to the zoning authority. Section 3-21-9 of the zoning authority or any officer, department, board or bureau of the zoning authority may appeal the decision pursuant to the provisions of Section 39-3-1.1 NMSA 1978.”

Section 39-1-1.1B states that the agency which makes the final decision (which in this case is the County Council), shall prepare a written decision that includes an order granting or denying the relief and a statement of the factual and legal basis for the order. Section 16-493(c)(5) of the Development code further states: “The appellate body shall take action on the appeal at the conclusion of the hearing, and shall state and adopt, or make provision for the adoption of, findings of fact and supporting the decision.”

The ‘findings’ set forth in the Council’s decision, which are conclusory in nature and simply parrot Section 16-493(c)(1) of the Development Code, obviously do not comply with the foregoing requirements. As a result, the form of the decision rendered by the Council is deficient and in violation of applicable law, according to the suit.

The letter goes on to say that the decision is also defective in that is was merely signed by the chairman of the Council and was not adopted by the Council as a whole by a vote of that body. In addition, the letter states, should the Hanlons be successful in their appeals, they will ask that the skate park be removed from the library site, therefore, they are suggesting that the Council may want to consider postponing construction until the resolution of the appeal.