Report: P&Z Meeting, March 27, about Proposed Zoning Changes for Energy

Here’s a brief report on the March 27 P&Z Commission meeting, that included discussion of proposed changes to the zoning ordinance to accommodate energy and utility facilities, exploration and production.

Many people from Placitas, and some from Algodones, showed up to participate.  Planning & Zoning Director Mike Springfield began the proceedings by saying that this was only the beginning of a long process, which could last through summer or later, directed towards possibly changing procedures to accommodate applications for oil & gas exploration and production, certain types of water uses, and certain utility uses.  He made clear to the Commission that they could choose to proceed with a revision of the zoning ordinances, as suggested, though only suggested, by the wording provided by his Planning & Zoning Department staff, or choose to make no changes at present.

When Springfield attempted to explain why some changes might need to be made, he cited increased interest in oil/gas production, other energy production, and various utility uses in Sandoval County.  He said that the County does not have sufficient knowledge or resources to vet these uses, and that it should rely more on state and federal agencies to determine what are and are not acceptable uses.  He likened this to what the County did some years ago with water uses, when they essentially offloaded the determination of proper water uses to the State Engineer, so that it would not be a matter for County zoning decisions and enforcement.  This could explain why in the proposed ordinance changes such activities as oil/gas production, also exploration, could be PERMISSIVE use, which does not even require approval from the County P&Z staff, let alone Commission decisions and public hearings.  (Building a house in a platted residential development as allowed by zoning ordinances is an example of a permissive use.)  The idea is that state and federal procedures would take the place of such County/public oversight.  The result, however, could conceivably be that an energy company could buy the residential-zoned property right next to you, then start exploration and even production activities without there being a single County public meeting about it.  All that would be required is approval by the appropriate state and/or federal agencies.

Springfield also confused matters by talking a great deal about a supposed need to make sure that people who want to hook up their new houses to existing electrical lines, water lines, gas lines, etc., do not have to go through a burdensome zoning process, which also could tie up staff resources.  But that makes no sense, because at present these are all permissive uses (as they should be), and only the proper building permits are required.

It must also be pointed out that all the facility, exploratory and production uses dealt with in the proposed ordinance changes are already allowed under the present zoning ordinance as Special Use (SU), so long as the applicants go through the SU rezoning process, which involves public hearings before both county commissions.  Recently PNM filed just such an SU application for a solar power array in an area near Rio Rancho, and it was easily approved.  So there is nothing at present to prevent any of these uses, so long as they are thoroughly vetted through a public process.

The P&Z Commission weighed in after Springfield’s presentation.  Some of the commissioners, including Chairman John Arango, were appropriately concerned about the proposed ordinances allowing intensive energy activities as permissive uses.  They were clearly opposed to oil & gas production as a permissive use right in or near to our residential neighborhoods.  However the Commission seemed not to take up Springfield’s invitation to discuss whether modification to the zoning ordinances is needed at all, and discussed only how the proposed language might be changed so as to be less frightening to the public.

Chairman Arango took the unusual step of not allowing public comment on this discussion item, which was his prerogative as chairman.  Even so, 3 members of the public did step up to make comments, and others tried.  Even more unusual is that the chairman did not allow any 3-minute public comments at the end of the meeting, which is a standard agenda item at County commission meetings, and is fairly regularly allowed.  Instead he called for a motion for adjournment as soon as it became evident that other members of the public wanted to have their say.

Chairman Arango did invite the public to submit comments by email as to changes in the wording of the proposed ordinance language.  He said that there would be a series of public meetings before any ordinance modification was finalized, so that everyone would be able to have their say.

The ES-CA Board plans to communicate to the County that this should be handled quite differently.  Before even considering changes to the ordinances there should be extensive discussion, as Mr. Springfield suggested, as to whether such changes are needed at all.  While he is right that dealing with many applications from the industries involved might prove to be a burden on County staff and officials, it might be that this could be handled better by developing staff and commission guidelines for dealing with the Special Use zoning applications regarding these activities.  It might be better to allow the first few applications for these uses to proceed as SU ones, with full public involvement, and then afterwards, on the basis of that experience, develop a combination of guidelines and possibly some ordinance modifications that could streamline and improve the process.  A staff report that discusses in some detail why changes might be needed, and which provides clear options for making changes, should first be produced, be made available to the public for review before commission discussions, then discussed by the staff and commission – far before any decision is made to make even slight changes to the zoning ordinance.

ES-CA will continue to watchdog this issue, and keep the public informed and involved.

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DOT’s 2nd Meeting with ES-CA on the I25/550/165 Interchange

On March 17 ES-CA representatives met with DOT’s District Three Engineer Tim Parker, his staff, Representative Smith, the project contract engineer Chris Baca, Lt. Stoyell from Bernalillo, Sandoval Undersheriff Wiese, and County Commission hopeful James Dominguez. Discussed were safety issues with both I-25 exit ramps to Placitas, and the on ramp from Placitas to southbound I25. It appears that all on and off ramps from Bernalillo work well. Additionally, the need for better signage and roadway stripping was discussed.  Link to ES-CA to DOT Letter 26Mar2014.

Of primary concern remained the northbound I25 to 165 ramp. ESCA has received many complaints that merging to 165 in the new intersection is more dangerous than the one it replaced which had both rear end collisions and side swipes. ESCA stated strongly that it was a mistake for DOT to have eliminated the merge and acceleration lane and that this has left a dangerous intersection. Mr. Parker stated it was eliminated to make the intersection easier and safer for the gravel trucks to turn left to the frontage road. Mr. Parker pledged to engage an independent engineer to review and no timeline was promised. ESCA will remain engaged in this and the other intersection issues including understanding the basis of the past safety decisions and future safety recommendations of the independent engineer.

Next observed was the westbound 165 to southbound I25 intersection. Everyone observed that the turn is tight, and accordingly we observed that the gravel trucks start on the outside lane, but because of their length, that also take a third or more into the inside lane. If a car is there, it is trapped between the truck and the concrete abutment of the bridge. Undersheriff Wiese thought this condition particularly dangerous. Then there is the short merge lane where again if there a car on the left of the truck cannot get out of the way in time, it will be trapped between the truck and the concrete barrier.

It was then pointed out that the median on the west side of the intersection and between east and west lanes was almost impossible to discern by west bound 550 drivers if there are not cars queued to go north on I25. This issue, and the last problem, the southbound I25 exit and its hidden-until-the-last-moment exit lane to 165, DOT will investigate for signage or striping solutions.

In all, we were led to believe that the intersection problems are mostly, and simply, drivers needing to become accustomed to the new intersection. If indeed the problems extend beyond this, it will be ES-CA and community input that will resolve them.

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Zoning Staff Propose Omitting Public Hearings

At the March 27, 2014, Planning & Zoning Commission meeting, Sandoval County Staff will propose zoning ordinance revisions that would allow certain types of exploratory drilling and production of “energy related products” in all Rural Residential Agricultural (RRA) areas of the County without public hearing. Placitas is zoned such that RRA permissive uses apply throughout Placitas. The meeting begins at 6PM in the County Commission Chambers located on the third floor of the Sandoval County Office Complex off Hwy 528 at 1500 Idalia Road.

Under the current 2010 Sandoval County Planning and Zoning Ordinance, exploratory wells related to the development of water resources by governmental entities is the only drilling allowed without going through application and public hearings. This kind of use is called “permissive” and any required actions can be performed administratively without public notification or hearings. The Fisher Sand and Gravel mine was allowed under permissive use with only administrative approval, and ES-CA fought to close that loop hole so that it will not happen again.

The proposed zoning changes would remove from the public hearing process: Any exploratory drilling for water, energy related products, or communication; distribution lines including pipes, wires, etc. whether visible or not, on sites of 2 acres or less; and production facilities and related apparatus and buildings provided that they are less than 800 square feet in size, or fenced enclosures, pumps, valves, switches, or anything considered a commercial utility.

Additionally, the proposed changes would also allow some new conditional uses . Conditional uses still require public notice and hearing, but have minimal vetting requirements, such as for appropriateness to an area. For example, currently when a commercial use is desired within a residential area, re-zoning is required with much greater rigor on the part of the proposer and with clear expectations communicated for the public to consider. The proposed changes expand the less rigorous conditional use provisions to any production or distribution facilities on up to 20 acre sites for water or energy-related purposes “for commercial utility purposes”. Also, utility structures such as storage tanks, storage yards, etc., on sites of any size would fall under conditional use zoning.

If these changes to the zoning ordinances are approved by the County Commission, it means that many property uses that clash with the character of our communities could spring up without any public oversight, or in some “conditional use” cases, minimal oversight.

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ES-CA Board Meeting, March 3, 2014

The ES-CA Board of Directors met last night. Attending the meeting were Directors: Bob Gorrell (President); Orin Safier (Treasurer); Chris Daul (Secretary); Ed Majka; and, Tony Hull. Also attending were: Dick Ulmer, Scott Stevens, David Wilson and Ed Macy.

The major issues discussed included:

1. I 25/Rt. 550/Rt. 165 Interchange. ES-CA has received numerous complaints from residents about the difficulty of seeing oncoming traffic at the ramp entrance to Rt. 165, from northbound I 25. The original NM DOT plans called for an acceleration lane to be present, but that was later removed without notice.

ES-CA Board members had met with NM DOT officials and were advised to wait and see how the final configuration would work. Based on feedback from residents, and our own experiences, the Board believes that the intersection is not safe.

ES-CA is requesting a meeting with NM DOT officials, State elected representatives and local law enforcement officers to discuss how the ramp entrance can be made safer. Our position is that we want the acceleration lane to be built. If anyone has additional concerns or comments, please let Board members know.

2. Fisher – Proposed Annexation by Bernalillo. Once again the Board would like to thank everyone that attended the Bernalillo Council meeting on February 21st. The annexation ordinance was tabled due to concerns expressed by Placitas and other residents about the potential mining of the site. ES-CA Board members subsequently met with Mayor Torres of Bernalillo to further discuss our concerns. The Board will be discussing the matter again with the Mayor and we expect to arrive at a suitable compromise that will give the Town some tax revenues and a detention basin, while severely limiting sand and gravel processing and, prohibiting any type of asphalt plant. We will keep everyone apprised of what is happening next.

3. Zoning Issues. ES-CA has discovered that Sandoval County has very limited enforcement powers over zoning violations, as evidenced by the LaFarge situation. Board members have met with the County Administration and the County is determined to try to enforce the regulations, but they have very limited ability to fine landowners. While ES-CA is continuing to work with the County and the Anasazi HOA, we are also proposing State legislation that will give counties more enforcement power on zoning matters.

All ES-CA Board meetings are open to the public and everyone is encouraged to attend. The next meeting is on Monday, April 7, at 6:30 pm, at La Puerta Realty office.

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Gravel Mines have Anemic Tax Benefit to Sandoval County

Gravel mines do not pay severance tax like oil and natural gas that contribute to about one third or our state’s income. Gravel mines pay little to no tax to the counties and municipalities where they reside. Fisher Sand and Gravel claimed at a recent Town of Bernalillo Council meeting, that as their office resides in Bernalillo, if they could re-open their illegal gravel mine by annexing it into Bernalillo, it would generate up to $60,000 per month in New Mexico Gross Receipts Tax (GRT) for the Town. The Fisher testimony was mistaken.

Fisher’s statement would only be true if all of their sales went to construction projects within the Town. Most of the gravel from our area is used in concrete, roads, etc. in Albuquerque and therefore only generates GRT for Albuquerque.

Materials used in construction are taxed at the point-of-sale. The NM Tax and Revenue Department (TRD) has always considered the construction point-of-sale, or business location, to be the location of the final product: [excerpt from TRD directions] “You provide construction services – Your business reporting location is the location of each construction site…. All phases of a construction project are considered a service, including materials that become components of the completed project”. [see link –NM FYI BUSINESS LOCATION]

Using the new Bernalillo High School as an example, if the cement used to make the concrete is manufactured in the Tijeras plant located in Bernalillo County, the gravel and sand comes from the Lafarge quarry east of Santa Ana in Sandoval County, and is mixed and trucked from Albuquerque in Bernalillo County, no GRT tax will be paid at any of those locations, but will be paid at the location where the school is built. The Town will get GRT on all labor and material and profits used to build the school. Only the general contractor, otherwise known as the prime, will pay the GRT and on the total cost of construction. All other vendors will be issued Non-taxable Transaction Certificates to prevent double taxation.

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Fisher Sand and Gravel

BERNALILLO TOWN COUNCIL MEETING

DISCUSSION OF ORDINANCE TO ANNEX FISHER

SAND AND GRAVEL PROPERTY

On Monday, February 25, 2014, the Mayor and Council of Bernalillo met to discuss an ordinance that would annex the Fisher site into Bernalillo. Under the ordinance, it would provide for the construction of a detention basin to assist in storm water control, zone the site for retail, commercial and light industrial development, and, permit Fisher to mine the site for 15 years, prior to any development. ES-CA board members, along with many other residents of Placitas, attended the meeting and voiced their opposition to the proposal of 15 years of mining. The Bernalillo Mayor and Council voted to table the ordinance, pending revisions that provide performance safeguards for the Town.

For those that attended the meeting, we should all be proud of our service and our actions. Speakers were well informed, polite and forceful. It was our collective actions that brought about the halting of this ordinance. A special thanks goes to Ed Majka, who spent much time organizing presentations, preparing handouts for the Mayor and Council and informing residents of this matter. This is what ES-CA does. And it is only as strong as it’s membership. This issue is not over, and everyone needs to remain vigilant, and involved. In addition this threat to our health and property, there are many other issues facing Placitas. If we are to continue to protect our interests, everyone needs to be involved with your time, or money, or both. ES-CA needs you.

As noted, this issue is not over. Bernalillo believes that it will be beneficial to annex this property, but they are now aware of the mining issues. ES-CA will be working with the Town to revise the ordinance. We do not oppose annexation. We do not oppose the construction of a detention basin. We do oppose unbridled gravel mining on the property. We understand that Fisher needs to grade the site, and that there can be an economic advantage to screening out gravel, but fifteen years is literally a lifetime to some. We also wish to make sure that in the end, the property is properly reclaimed. In fact, Fisher is under a legal obligation currently to Sandoval County to grade and reclaim the site.

ES-CA has proposed that Fisher be limited to 18 months to complete grading, which would include the extraction of material, and, in effect, a limited, regulated mining operation. We ask that the Town require that Fisher post a bond to insure completion. We would also require that Fisher be subject to mandatory penalties for failure to complete the reclamation with 18 months. We have also asked that the Town require that the workday be kept to the hours of 9 am to 4pm, and that Fisher comply with all necessary regulations, including, but not limited to: air pollution, water pollution, noise, traffic, etc.

This site is currently in disarray. While ES-CA does not encourage any mining within the area, we would like to see this site restored. The County has been remiss in enforcing its regulations against Fisher. Our proposal of a bond and penalties would may be a far stronger position to insure that the site is properly reclaimed, than waiting for the County to act.

We welcome your thoughts and comments.

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ES-CA Alert – Fisher Gravel Mine at I-25

Fisher_Annex_OrdinanceOn Monday February 24th at 6:30PM the Town of Bernalillo will hear Item 7A on the agenda which is the annexation of the currently illegal gravel mine into the Town. Of concern to Placitans is that Fisher asks in the proposed ordinance to be able to mine sand and gravel for 15 years.

4D. As to the entire annexed property, the property owner shall have the right to extract sand, gravel and similar products as a part of the grading process for the property and commercially sell such minerals; provided that this use shall cease and terminate upon the earlier of: (i) completion of final grading for the property; or, (ii; fifteen (15) years after the Effective Date of this Ordinance.

Please come to this hearing and let your voice be heard that you do not want another gravel mine in these proximities. The Town of Bernalillo should also be concerned about the demand on water, spewing dust, noise and truck traffic. The Town Council Chambers are located in Bernalillo at 829 Camino del Pueblo. You can read the entire proposed ordinance by clicking here Fisher_Annex_Ordinance .

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FISHER SAND AND GRAVEL UPDATE

ES-CA Forum Article – February, 2014
Fisher Sand & Gravel Update
Ed Majka, Political/Legal Chair, ES-CA

On Thursday, February 13, 2014 representatives of ES-CA, Chris Daul, Ed Majka and Orin Safier met with Steve Gudelj, Placitas developer and business owner, and
Dave Olson, Vice President of Fisher Sand & Gravel. Mr. Olson is a resident of Placitas.

The purpose of the meeting was to discuss current and future use of the property owned by Fisher, which is adjacent to I-25 northbound; south of Rt. 165. This site has been utilized to produce gravel for sale and, as stated by Mr. Olson, has limited production value. An effort to site a temporary asphalt plant was defeated by efforts of our Community and ES-CA, working with the Sandoval County Commission.

The property was listed “For Sale”, but could not find a Buyer. Fisher Vice President, Dave Olson quoted the following (quoting here, with his permission) “Fisher will not locate an asphalt plant at this site now or in the future”. Efforts are underway to donate a portion of the property to ESCAFCA for the purpose of constructing a detention pond to
help in flood control along the west side of I-25 to minimize flood damage along South Hill Road in Bernalillo.

Fisher has been in conversations with ESCAFCA as well as Town of Bernalillo representatives. Those conversations include the possibility of the Town of Bernalillo annexing the property.

Ultimately, Fisher claims they will not operate as a mining operation, and their intent is to develop the site for light industrial, warehousing and other commercial activities.

ES-CA representatives voiced concern of Fisher not being open to public interest and community impact over the last several years. We also discussed the poor reputation of Fisher, and the number of violations at their operations in New Mexico and Arizona.

ES-CA’s position is to continue to monitor activities on the site, and attend Sandoval County and Town of Bernalillo meetings, as well as Planning and Zoning meetings to maintain a “watchful eye” on any development plans and the impact of those plans on Eastern Sandoval residents

In closing the meeting, contact information was exchanged, and ES-CA representatives requested that Fisher keep lines of communication open to build a more favorable and beneficial relationship.

Note: You can help by becoming an ES-CA watchdog, in which you would attend a public meeting and provide information to make ES-CA aware before something occurs that could/would negatively impact our Community. For further information on how you can help ES-CA in these and other efforts, please contact Ed Majka, at majkanm@msn.com or Scott Stevens, j.scott.stevens@gmail.com.

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RT. 550/165/I 25

I have communicated with NM DOT today concerning both the signal timing and the entrance ramp from I 25 NB to Rt. 165 EB.

As many of you have experienced, there has been a backup at the intersection the past two mornings during the rush hour. DOT advised me that they are working on the signal timing issues to prevent backups in any direction and are aware of our concerns. I will once again travel through the interchange on February 12 and will advise NM DOT of the situation and whether it is improved.

Concerning the ramp, I have forwarded comments to DOT and expressed ES-CA’s continuing concerns about the safety of the access onto Rt. 165. Please continue to submit your comments to the Forum and ask others to comment as well. ES-CA board members will be meeting on February 17 to discuss this issue again and decide upon a course of action.

ES-CA will continue to work on the issues at the interchange and welcome your thoughts and suggestions.

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Lafarge Mining Operation a Loser for Sandoval County and Placitas

by Stephen Vaughan

Lafarge has recently been telling all who would listen that they no longer intend to honor the various written statements of intent by their predecessor operators to end mining operations in 2015. Indeed, they have explicitly said they are negotiating a new lease, and intend to mine to the perimeter of the leasehold.

As residents of Placitas, we know the traffic, the noise, the dust their operations create.

But isn’t there also economic benefit to Sandoval County from the mining?

In a word, no.

As we all see the trucks clogging the intersection of 25 and 165, can’t we take solace in the gross receipts taxes they are paying into the coffers of the County?

No. The trucks are taking the gravel to Albuquerque for the most part, where the gross receipts taxes are paid. Other than gravel that may be delivered here, the County sees not a dime of GRT.

What about property taxes paid by the owners? As best we can determine, the owner paid approximately $100,000 last year in property taxes on the entire mining site. The comparison to the taxes that would be paid instead as a result of a conforming use, for example homes, is striking. Assuming a hypothetical 500 homes on the 1000-acre site (after gross receipts taxes paid by the developer, the builders, and the contractors), each home would pay, let’s estimate, $5,000 a year in taxes, or $2.5 million.

And then there is the money that would be spent by those 500 families in Sandoval County, with the resulting benefit to local businesses and the County itself.

One must not forget, too, the reduction in property values resulting from the mining operation: Studies have shown gravel pits may reduce surrounding property values ranging from 30% contiguous to the mine, down to 10% two miles away. Property tax assessment appeals have already succeeded on Placitas homes near the mine, based solely on the presence of the mine. We estimate the loss in County property tax revenue will eventually range from $250,000 to $750,000.

And finally there is the water. Last reporting year Lafarge used 94 million gallons of water, during one of the worst droughts in memory. Five hundred homes would use about 35 million gallons of water.

This may be good business for a Paris-based international corporation—but it’s just not paying its way for those of us in Sandoval County.

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Documents relating to Lafarge

[following added by Orin Safier]

Here is a 2013 Satellite view of the Lafarge operation, showing the areas detailed in the 1988 Certificate of Nonconformance: Sep 2013 Satellite View of Nonconforming Areas

Here are some documents that are important regarding the Lafarge mining:

1) 1988-01-11 Certificate of Nonconformance.  This was passed in 1988 by the Extraterritorial Zoning Commission, and places zoning restrictions on the mining property.

2) 2013-06-23 Lafarge Notice of Violation.  After the 1988 Nonconformance conditions were “grandfathered” in 2010, this Notice of Violation was issued by the County to Lafarge in 2013.

3) Lafarge Appeal Pages from 2013-09-06 Suit of County.  After receipt of the Notice of Violation, Lafarge attempted to appeal that notice. These pages contain their reasons why they consider themselves not to be in zoning violation.

 

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