CASHWELL ISSUE ANALYSIS

ISSUE ANALYSIS: THE CASHWELL PROPOSAL FOR A CLUSTERED HOUSING DEVELOPMENT

Stephen M. Barro

October 4, 2011

The Cashwell family, owner of a 103-acre tract along highway NM 165 in the heart of Placitas, has applied for Special Use (SU) zoning that would allow a clustered housing development, including homes on small, urban-type lots and a row of closely spaced houses along the property’s highest ridge.  The Sandoval County Development Department is supporting the application.  Placitas residents overwhelmingly oppose it because of its incompatibility with the surrounding neighborhoods, its conflicts with the Placitas Area Plan, the negative precedent it would set for future development, and the flawed manner in which the County is reviewing it.  The County Planning and Zoning Commission is now considering whether to recommend approval of the Cashwells’ request to the final decision maker, the County Commission.  How this case is resolved may determine not just what happens to a particular Placitas property but also how key zoning principles will be interpreted and how land-use decisions will be made henceforth in Sandoval County

Background

This is the third application for rezoning submitted on behalf of the Cashwell family by Mr. Knight Seavey, an Albuquerque developer who runs a firm called Insite Works PC.  The first application (2008) was for master planned (MP) zoning that would have allowed a combination of residential development and a commercial center along highway NM 165.  The County held up consideration of the request pending completion of the Placitas Area Plan (PAP).  That plan (adopted May 2009) disapproved commercial activity at the Cashwell location but endorsed the principle of clustered housing.  Accordingly, the Cashwells’ second application, again for MP zoning, centered around a plan to build 75 clustered housing units, densely grouped on lots as small as 7,500 square feet.  It also “reserved” the acreage originally designated for commercial use, presumably to allow for future attempts at getting such use approved.  Despite strong opposition from Placitas residents, both the County Development Department and the Planning and Zoning Commission (PZC) approved this application, only to have it denied by the Sandoval Board of County Commissioners (the “County Commission”) in July 2009.  The Cashwells appealed the denial and prevailed in District Court, largely because the County Commission’s procedures were flawed.  The matter was remanded to the County Commission, setting the stage for the present third application.

Shortly after the remand, Sandoval County amended its zoning ordinance to, among other things, explicitly recognize clustered housing as a Special Use.  Placitas residents asked that specific definitions of acceptable forms of clustered housing be included in the ordinance and proposed standards that would have ruled out the present Cashwell approach; but the County chose instead to omit specifics, leaving it to County staff and the PZC to decide on a discretionary basis, case-by-case, what forms of clustering to support.  Consequently, the present Cashwell application, as the first to be submitted under the new provisions, sets up a critical test of how clustering will be interpreted.  What is at stake is not just the zoning of the Cashwell tract (important as that may be, given its size and central location) but also, more significantly, what new residential patterns may emerge in Placitas (and elsewhere in the County) under the clustering rubric, and how that change may transform our community.

What Would Rezoning Allow? What Would Happen If Rezoning Were Denied?

The current application requests Special Use (SU) zoning to allow construction of 65 clustered homes on an 87 acre portion of the 103-acre Cashwell tract.  (Once again, the 16 acres originally earmarked for commercial use are excluded, leaving the door open for future attempts to get such use approved.)  Seventeen of the clustered homes would be lined up in a closely spaced row along the property’s highest ridge top, parallel to highway NM 165.  Each would be built within a 7,500 square foot “building envelope”—that is, on a lot of about one-sixth of an acre.  Another 34 homes would be built in clusters on lower ground, also on 7,500 square foot lots.  Only the building envelopes would be held as fee simple property by the homebuyers; the land around and between them would be held in common by the owners of homes in each cluster.  The remaining 14 homes would be of a different type, situated on contiguous lots of one-eighth of an acre or less.  County staff have characterized them as attached residential units, but the applicant has said that though they would be small and very close together, they would not share common walls.  What is clear is that these units, whether attached or not, would resemble no existing housing anywhere in the vicinity.

Apart from the 65 proposed homes, the Cashwell site plan also includes several vaguely described nonresidential office structures on five acres near the property’s western edge.  The application emphasizes that a large fraction, 61 percent, of the 87-acre area would be preserved as open space, but much of that space is steeply sloped or occupied by arroyos, hence presumably unsuitable for home construction and destined to remain undeveloped regardless of how the property is zoned.  Most of the proposed development would be accessed directly from highway NM 165, but the 17 ridge-top homes would be reached, according to the site plan, via a connection to the main road serving the neighboring Overlook subdivision.

Cashwell representatives have argued that to reject SU zoning would be to deprive the owners of the right to use and develop their property; but that assertion is groundless.  If the present application were rejected, the property would retain its current CD-WP zoning (Community District, West Placitas).  That zoning allows an owner to develop his/her property by building single-family homes on lots of one acre or more.  In fact, housing compatible with CD-WP zoning (formerly RRA, or rural residential/agricultural, zoning) is precisely what the Cashwells initially proposed.  Their 2008 plan called for 49 single-family homes on one- and two-acre lots.  Although the commercial portion of that plan was rejected, the residential portion was not.  If SU zoning is denied, the Cashwells will still have the same right as they and all other West Placitas property owners have today, namely, the right to develop their land under the CD-WP rules.

The County’s Review Process and the Application’s Current Status

As this is written, Sandoval County is part way through its review of the Cashwell application.  Although objections have been raised to the review process (by this author, among others), County officials thus far are adhering to their customary method of dealing with a zoning request: first, County Development staff review the application and report to the PZC; second, the PZC holds a hearing at which the application is presented but citizens are afforded only minimal opportunity to comment and present opposing views; and third, if the PZC votes to recommend approval, the County Commission itself holds a hearing that may result in a final decision.

The Staff Report was submitted to the PZC on August 16, 2011.  In it, the County Development Department expresses support for the requested rezoning, just as it did with the Cashwells’ previous application.  The Report asserts that the proposed clustered housing development complies with the Placitas Area Plan (PAP) and the Sandoval County Zoning Ordinance (SCZO)—claims that opponents strongly dispute.  It also deems the application to be essentially complete, whereas opponents point to important missing items.  But the Staff Report also contains a new and unexpected element that could turn out to be significant: an apparent staff recommendation (there is some ambiguity) that the Cashwells should be required to comply with certain provisions of the County Subdivision Ordinance as well as those of the SCZO—most significantly, provisions pertaining to water—as a condition for approval of rezoning.

The Cashwell request had been scheduled for a PZC hearing on July 21, but the hearing was deferred because the Cashwells had failed to hold a legally required pre-application public meeting.  That public meeting took place on August 12, following which the PZC took up the matter on August 25.  That evening, County Development staff laid out their conclusions, Cashwell representatives presented a lengthy explanation and justification of the proposed development, and several members of the public (all opposed to the Cashwell request) were afforded a few minutes each to express their views.  Because the hour grew late and not all interested members of the public had been heard, the PZC chairman adjourned the hearing and announced that it would resume at the Commission’s October 27 meeting.

If the PZC votes to recommend approval of rezoning, as it did in 2009, the matter would be forwarded for consideration by the County Commission.  That body’s decision would be final, unless challenged in District Court.

Why Is There Opposition?

An overwhelming majority of Placitas residents oppose the present Cashwell development plan, just as they opposed the 2008 and 2009 versions.  The opposition stems partly from objections to specific features of the proposed development and partly from broader concerns about what approval would mean for the area’s future.  Moreover, apart from the substantive issues, concerned citizens have become increasingly aware that the County’s process for adjudicating the Cashwell request falls far short of the due process that New Mexico law requires.  The main objections to specific features are summarized here; the broader concerns and procedural aspects are addressed under the next heading:

• Clustered houses on the ridge top.  The feature that has drawn the sharpest negative reaction is the plan to build a row of closely spaced clustered homes along the ridge top.  Contrary to what both the PAP and SCZO require, such action would ruin rather than protect some of the finest views in Placitas; it would damage the local environment rather than preserve it.  Because the dense array of ridge-top structures would be jarringly different from the area’s existing housing patterns, it cannot be reconciled with the SCZO criteria that “compatibility of property uses” be maintained in the area and that the area’s “integrity and character” be preserved.

• An inversion of the purpose of clustering.  The nominal reason for adding clustering provisions to the PAP and SCZO was to give developers incentives to preserve open spaces and scenic views and to reduce ridge-top incursions, but the Cashwell application stands the clustering concept on its head.  Instead of resulting in less ridge-top construction, the Cashwells’ approach to clustering would result in much more; instead of protecting and preserving view sheds, the proposed approach would obliterate them.  Some Placitas residents do support the clustering concept and would favor a clustering plan that actually advances the stated PAP goals, but not a destructive clustering plan like the one now before the County.

• Attached and small-lot homes.  No attached or tightly spaced residential units and no fraction-of-an-acre lots exist anywhere in the vicinity.  Such units would be incompatible with all existing housing in the surrounding neighborhoods.  Introducing them would diminish the community’s attractiveness to present and prospective residents and reduce the values of nearby properties.  To allow so patently inappropriate a form of housing would contravene the PAP directive “to promote housing types consistent with existing development pattern[s] and subdivisions in the West Placitas area.”

• More clustered units than the law allows.  The SCZO states that no more units can be built in a clustered development than could have been built on the same parcel under the existing zoning.  Neither the Cashwells nor County staff have tried to specify the latter number.  Instead, they have repeatedly made the absurd claim that the Cashwells would be allowed under the existing CD-WP zoning to build one home per gross acre of the 87-acre parcel—this notwithstanding that much of the land is taken up by arroyos and steep slopes and that some acreage would be needed for roads and utilities.  Qualified local real estate professionals and developers have estimated, taking topography into account, that the feasible number of one-acre lots on buildable land is closer to 30 or 35 than to the 65 proposed in the Cashwell plan.

• The unaddressed issue of water.  The SCZO states that the County shall not approve a zoning change unless satisfactory provision has been made for water.  The Cashwell plan makes no provision for water at all. It does not say how water would be obtained, or how the well-documented quantitative and qualitative inadequacies of the area’s natural water resources would be overcome.  Nearby property owners have well-founded concerns that attempts to draw water for the Cashwell tract would impair their own water supplies.  The applicants have asked to be allowed to deal with water issues after rezoning occurs, but the law unambiguously requires that this be done before any zoning change can be approved.

• The open door for future commercial development.  The ploy of excluding 16 acres along highway NM 165 from the proposed residential development signals the Cashwells’ intent to keep trying, as many times as may be necessary, to obtain approval for commercial development of that land.  The present plan’s inclusion of nonresidential structures and the application’s repeated references to planned nonresidential activities support that inference.  Well aware of this threat, area residents would be skeptical of any plan for the Cashwell tract that does not definitively foreclose the commercial option.

In addition to objecting to these and other aspects of what the Cashwells propose, opponents have identified major points that the application fails to address.  Among the missing items are (a) evidence of an agreement to allow a connection to the Overlook access road—without which the present Cashwell plan would be infeasible; (b) information that the SCZO requires regarding locations of water tanks, drainage facilities, landscaping, and other features; (c) an assessment, also required by the SCZO, of economic impacts on adjoining properties, (d) a plan for  the special wastewater treatment facilities needed to serve the proposed small residential lots; and (e) most important, evidence as to the availability of water—the factor that will ultimately determine how many residences the property can support.  Lacking these items, the application should be deemed incomplete, hence not yet ready for consideration by the cognizant County bodies.

Note:  If the PZC were to concur with the County staff recommendation to require compliance with provisions of the Subdivision Ordinance as a precondition for considering SU zoning, some gaps in the application might be filled.  Most importantly, the Cashwells would be obliged to conduct a full-scale water study, including the drilling of test wells, and to provide additional information on such matters as liquid and solid waste systems, access, terrain management, cultural property protection, and fire protection.  With that additional information in hand, the County would be better situated than it is now to make an informed decision about the proposed development.

Broader Implications

Much more is at stake in the Cashwell case than a decision affecting one particular property.  How this zoning dispute is resolved will have broad implications for the future of Placitas, and indeed all unincorporated parts of Sandoval County.  Allowing tightly clustered, ridge-top, small-lot, and/or attached housing on the Cashwell tract would set a precedent, encouraging other property owners to submit similar proposals (at least once the local economy recovers).  One can foresee requests to allow clusters of attached or closely packed units even on, say, five- or ten-acre parcels in the midst of established subdivisions.  Were such development to occur, the attributes that make the Placitas area attractive and special could gradually be erased.

Further, apart from the issue of clustering, a Cashwell success in obtaining Special Use zoning would send a troubling message.  It would signify that a developer can propose uses incompatible with County ordinances and plans, submit a flawed and incomplete application, receive a review that reflects the developer’s interests but ignores opposing views, and still win the approval of County decision makers.  The protections supposedly afforded by existing zoning classifications and provisions of the Area Plan would be shown to be ineffective, easily breached by a request for SU or MP zoning.  Property owners and developers would have broad leeway to build as they please, notwithstanding lack of compatibility with what exists and the adverse effects on the “integrity and character” of the community.

Finally, how the PZC and County Commission decide the Cashwell case—what procedures they follow—may be more consequential in the long run than the substantive decision itself.  The Planning and Zoning Commission’s customary practice has been to deal with zoning issues in informal hearing mode: County staff summarize their report, the applicant presents its plan, members of the public get to comment briefly, and the PZC then makes its decision.  Generally, there has been a presumption in favor of a property owner’s request for a zoning change.  Citizens have now learned, however, that New Mexico law prescribes more evenhanded quasi-judicial proceedings and offers due-process protections that Sandoval County has up to now ignored.  The New Mexico Supreme Court’s decision in Miller v. Albuquerque narrowly limits acceptable justifications for a zoning change, of which the one most pertinent to the present case is that the requested change should benefit the community.  Its 2008 decision in the Albuquerque Commons case defines what constitutes an acceptable quasi-judicial procedure and lays out the rights of parties to zoning cases.  The latter include the right to legal representation, to present and rebut evidence, to have the matter decided on the basis of evidence in the record, and to be heard by an impartial tribunal that has not had ex parte contacts.  The Cashwell case could become the instrument for compelling County bodies to conduct full due-process proceedings and to apply the Miller standards, not just in the present instance but in all future contested zoning cases.  The result, if that approach succeeds, would be to transform land-use decision making in Sandoval County, strengthening residents’ protections against all forms of inappropriate development.

Threat and Opportunity

The nature of the threat posed by the Cashwell application is evident:  It is that the County might approve an ill-conceived plan to build the wrong kind of housing in the wrong place; that further destructive developments in Placitas might follow; and that, as a result, our community might become a less desirable place to live than it is now.

But the Cashwell case also presents an opportunity.  The proposed form of clustered housing is so egregiously inappropriate, so at odds with the goals and criteria stated in the Area Plan and zoning ordinance, that the applicants probably could not prevail in a fair proceeding.  Moreover, a fair and thorough review of the issue could draw the PZC and/or the County Commission into looking again at questions left unresolved when the zoning code was last amended:  What forms of clustering should be deemed acceptable?  What minimum lot sizes should be required?  How steep a slope is developable?  What spacing of homes should be permitted on a ridge top?  Had these matters been settled then, the Cashwells might have come up with a plan for their land more in keeping with the neighborhood, and the present zoning dispute (as well as others sure to follow) might have been avoided.

Although the procedural aspects might strike some as formalities, they are in fact centrally important—fully as important as the substantive issues concerning the pending application.  If the PZC’s hearing procedure goes unchallenged and that body is left to deal with the matter in its customary one-sided manner, the case against rezoning will never be laid out in detail or entered into the record, and the Cashwell plan—all its faults notwithstanding—might well be approved.  Given the legal foundation now in place, a real opportunity for change exists; but change will not occur automatically.  Concerned citizens will have to demand that the County follow proper quasi-judicial procedure and offer full due-process protections, and then to be prepared, if necessary, to pursue the matter in multiple forums.  This appears to be the most promising approach now available to warding off unwanted forms of development and securing the future of our community.

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 All views expressed in this paper are solely those of the author.  They do not necessarily reflect the positions of the Eastern Sandoval Citizens Association or its Board of Directors (although it would be pleasant if they did).