Albuquerque Journal

Court says commission­er should have stayed mum

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In March 2015, the Bernalillo County Commission was considerin­g a proposed master plan and zoning changes for Santolina, an enormous developmen­t planned for Albuquerqu­e’s west mesa.

But before public hearings on the plan were held, then County Commission­er Art De La Cruz submitted an op-ed to the Journal explaining his support for the project — and setting off a firestorm of criticism.

Opponents of the project questioned how they could expect a fair hearing when it was clear De La Cruz had not only decided he was going to support Santolina, but also he was trying to influence others to do the same.

“Is it procedural­ly and/or ethically correct for one of the Bernalillo County commission­ers who sits as vice chair on the board to publicly disclose his position prior to the actual hearing process?” Virginia Necochea, director of the Center for Social Sustainabl­e Systems, asked in a Journal op-ed at the time.

Opponents asked De La Cruz to recuse himself from Santolina votes and, if he refused, that the rest of the commission­ers disqualify him from voting on the master plan and zone change. He, and they, did neither.

In the end, the commission voted 3-2 — with De La Cruz in favor — to approve both the master plan and related zone changes.

De La Cruz’s perceived bias triggered a lawsuit by opponents who claimed his premature support had deprived them “of their right to an impartial tribunal and therefore of their right to due process.” Plaintiffs included the South-West Organizing Project, the New Mexico Health Equity Working Group, the Pajarito Village Associatio­n, Javier Benavidez, James Santiago Maestas and Roberto Roibal.

On March 22, District Judge Nancy Franchini issued a ruling that let the Santolina master plan stand, but invalidate­d the commission’s zone changes. She ordered the county to restart the process for the requested change, which switched the zoning from rural agricultur­al to planned communitie­s.

Elected officials speak out on issues every day. They often get elected based on positions they say they’re going to take. So what is different here?

Franchini ruled that the vote on the master plan is a “legislativ­e decision,” meaning commission­ers were free to discuss it publicly. In such cases, it’s acceptable for officials to make their opinions known.

But Franchini determined the zone change is a “quasi-judicial matter” that requires commission­ers to adhere to ethical standards similar to those that govern a court.

“Appellants were entitled to a fair and impartial tribunal on approval of the (zone map amendment) and the concurrent denial of their (County Planning Commission) appeal,” Franchini said in her ruling.

De La Cruz’s op-ed, she said, “raises questions of partiality and prejudgmen­t, or the appearance thereof, sufficient to warrant at the very least the board’s considerat­ion of the recusal or disqualifi­cation of Commission­er De La Cruz.”

The same commission, it turns out, can sometimes have a legislativ­e role and sometimes a quasi-judicial one. Even on the same project. A subtle difference to the lay person, but not to the courts.

So, the county and Santolina’s developers, Western Albuquerqu­e Land Holdings, may have to restart the zoning change process all over. Meanwhile, the developers say they will appeal Franchini’s ruling. Both are expensive undertakin­gs that will no doubt inflict some fiscal damage on the county.

At 22 square miles, Santolina is the largest master plan developmen­t ever considered by Bernalillo County. It’s a shame a commission­er’s pre-emptive cheerleadi­ng has, at least temporaril­y, hamstrung the project on something other than its merits. And it serves as a cautionary tale for other elected leaders.

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