Eastern Sandoval Citizens Association

The January 12, 2012, Planning & Zoning Commission (PZC) Meeting will consider an application for Master Plan zoning of the Petroglyph Trails subdivision, approximately 210 acres.  This is located on the I-25 Frontage Road, north of Hwy. 165.  (See site map here.)  It borders on the Placitas Trails and Anasazi Meadows subdivisions.

Here is the Master Plan application.  Here is the County Development Department staff report, which the PZC uses in forming its recommendation.  Here is the Legal Notice for the Jan. 12 meeting.

This Master Plan is for mixed use of commercial, light industrial, single family residential and higher density residential.  According to the Staff Report, most of the property falls within the “I-25 Frontage/Bernalillo Interface Overlay District”.  In the Placitas Area Plan this district is designated to include these mixed usages, with a transition to ordinary single family house zoning on the border with present residential subdivisions.

Sandoval County and Cashwell Developers Game Placitas

by Bob Gorrell

November 22, 2011

Over the years Sandoval County has enjoyed the ever increasing downhill flow of cash from the property tax rich Placitas Area.  It has a new plan to speed this flow by increasing the density of homes and without regard to existing residents.  If you have not yet been aware of the new and loosely drafted Clustering Ordinance, it is time to pay attention as you may soon have one of these developments next door to you.

In what follows, I will show that the Cashwell cluster housing zoning application creates an average density about 450% greater than existing surrounding housing densities.  Unfortunately, this is being accomplished through the proverbial devil in the details.  The Sandoval Planning and Zoning Commission had planned to continue to hear comment and deliberate on the Cashwell Application, that seemingly already has staff approval, on Thursday, December 8, 2011 at 6:00PM.  However that meeting has been postponed, and the next PZC meeting is scheduled for January 12, 2012.  It is not sure at this time if the Cashwell Application will come up for hearing then.

A major question concerning any application for Cluster Housing Special Use zoning is this: What is the maximum number of clustered housing units allowable on the specific property?  This question must presently be answered by the Sandoval County Planning and Zoning Commission (PZC) and the County Commission, due to the present Cashwell application to re-zone for 65 clustered housing units on an 87 acre property.  The Sandoval County Zoning Ordinance (SCZO), approved by the Sandoval County Commission in April, 2009, lacks adequate specifics to answer this question.  For Cluster Housing applications in the Placitas Area, the only two applicable bits of county legislation are to be found in the Placitas Area Plan (PAP) and the SCZO:

 “Developers should be allowed to cluster housing units on a smaller single family lot size. A cluster development should be allowed to cluster on 50% of the total predevelopment parcel. However, undevelopable area such as slopes greater than 40% as well as arroyos should not be considered as part of the gross parcel.” (PAP, page 64) (emphasis added)

“Although, an SU district for a clustered housing development may be authorized only if the total number of dwelling units in that development does not exceed that which would have been allowed if the site were developed under its previous zoning designation.” [SCZO 10(D)(3b)] (emphasis added)

On October 10, 2008, the PZC conducted a workshop aimed at developing language on cluster housing in both the PAP and SCZO.  I wrote a discussion brief for that workshop, and distributed copies at that meeting.  My brief outlined the need for definition of “building areas”, set-backs, minimum lot sizes, etc.  County staff had assured citizens that though full specificity regarding these would not appear in the PAP, they would be included in the zoning ordinance revisions that followed.  But that was not the case.  The PZC Chair announced at that meeting that instead these specifics would be considered on a case-by-case basis for each application for cluster housing zoning.  As a result only the above very vague wording appeared in the PAP and SCZO.

The lack of definition of undevelopable area in PAP and SCZO does not relieve an applicant for cluster housing SU zoning from the obligation of addressing this in the application, since both PAP and SCZO require that this determine the maximum number of housing units.  As the Cashwell application does not adequately address this issue, it is therefore incomplete.  In the following I will recommend ways in which this issue can be addressed, both by the applicant and by County Staff and Commissions.

It should be noted that the description of “undevelopable area” in the PAP uses a totally skewed example: “slopes greater than 40%”.  Obviously slopes greater than 40% are unbuildable, but in the same way that 600 mph is an unsafe speed for I-25.  So is 200 mph, or even 100 mph.  I can only speculate how this 40% figure was chosen for this example in the PAP.  Perhaps it was pulled from my previously mentioned brief, which among other examples cited that of Asheville, North Carolina, which then allowed development on up to 40% slopes, but only if the maximum housing zoning density was reduced by 90%!  Asheville has since modified their ordinance to prohibit development on slopes greater than 25%[1].

Due to the lack of adequate specifics in county law, legitimate determination of maximum number of clustered housing units on a property must be based primarily upon interpretation of the term “undevelopable” in the PAP and the phrase “would have been allowed if the site were developed under its previous zoning designation” in the SCZO.  Interpretation of this language must properly be guided by two considerations: 1) What adequately preserves the character of the area in which the property is located; and 2) What is reasonably considered developable by other regions with similar characteristics.

Attention to the first of these considerations is mandated in both the PAP, for properties in the Placitas Area, and just as emphatically in the SCZO for the county as a whole.  A primary goal identified in the PAP is “maintaining the semi-rural landscape and existing development patterns” of the Placitas Area.  As to the second consideration, because cluster housing does not yet exist to any significant extent in the unincorporated parts of Sandoval County, some guidance ought to be sought outside the county for what is and is not buildable.

One obvious feature of an area’s character is the general density of housing units.  When considering the application for Cluster Housing re-zoning on the Cashwell property, a prominent factor must therefore be the density found in adjoining and nearby developed areas.  One can map a square mile that includes the “S Curve” on NM165, which is located one mile north of NM165, and which for the most part is “built out”.  It contains about 100 homes.  The terrain within this square mile (640 acres) of existing development is far less severe than that of the Cashwell property.  Its density of one home per 6.4 acres is therefore representative of this aspect of the character of the area.  Clearly the application to build 65 cluster homes on 87 acres on the Cashwell property, meaning one home per 1.3 acres, would produce a development that is far more dense.  Cluster housing developments will by definition include some areas that have higher density than under standard residential zoning.  But the property as a whole, including “open space” areas, should not so greatly exceed the housing unit density of the general area, if that area’s character is to be preserved.  The Staff Report on the Cashwell application suggests that the density is acceptable here, because standard zoning for the West Placitas Community District, where the Cashwell property is located, sets the minimum residential lot size as 1 acre, which in the abstract would allow for 87 such lots on the Cashwell property.  But given the average density in the area, this in fact would not preserve “existing development patterns”.

The existing development patterns in the Placitas Area, as indicated by the sparse density of housing units, is largely due to the terrain attributes in the region.  It must be noted that the terrain on the Cashwell property is among the most challenging in Placitas.  In general, the following terrain attributes of the Placitas Area have dictated the sparse densities due to risks of negative return on investment and/or unacceptable liability:

• Building in water courses and small set-backs from them.  These areas are now defined by FEMA as flood plains, which makes this land effectively unbuildable.
• Building upon Placitas Area soil types and steep slopes.  Placitas soils liquefy easily and erosion occurs rapidly with soil saturation.  Liquefaction can occur more easily by the disturbance and de-consolidation of soil.  Hard surfaces like roofs and drives increase soil saturation surrounding structures.
• Most soils in the Placitas Area liquefy and flow rapidly when saturated and if on slopes greater than 10%.
• Most homes in the Placitas area are built on slopes of less than 10%, as well as most drive ways and other functional areas surrounding homes.
• Erosion control becomes almost impossible upon slopes greater than 20%.  For example, to prevent erosion of property, most Placitas developments incorporate detention ponds.  A small ten foot diameter detention pond that is two feet deep and with a weir one foot below rim on a 30% slope has a face on the downhill side of four feet plus!  Without a hardened face such as concrete, this pond will fail and take with it the slope it was to protect and including that upon which a home may be bearing.

Considering SCZO 10(D)(3b) (quoted above), if these and related factors were applied to a subdivision plan for the 87 acre Cashwell property, which has a good deal of slope greater than 20%, a number of arroyos, and soil conditions at least as challenging as in other parts of Placitas, it is unlikely that any more than 30 to 35 acres would be considered properly developable, which under present zoning would allow for that same number of homes.  And, this does not take into account that this would still be significantly more dense than the one home per 6.5 acres in the surrounding area.

Given that cluster housing is essentially new in unincorporated Sandoval County, the county must look for guidance from other sources, such as the zoning ordinances in other communities.  Slope is a major driver in the definition of what is undevelopable, and guidelines set down by both official and non-official professional organizations are available.  The following and the previously mentioned Ashville ordinance, are samples of these sources focused on what is allowable where steep slopes are present:

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT – Does not define maximum slope, but does require a site analysis test for buildable areas having slopes greater than 10%.
• Missoula, MT –  Defines buildable areas as 25% or less slope.  Note:  Building in this area usually required removal of bedrock.
• Smart Communities (www.smartcommunities.ncat.org) –  For a slope of 25 percent or greater, 80 percent must remain as open space with no more than 20 percent being altered or developed.
• Carmel, CA –  Determining Buildable Area: For the purposes of calculating allowable building volume and floor area, the buildable area of a lot shall be the lot area, minus continuous portions of the site, occupying at least 10 percent of the site area, with a slope greater than 30 percent.
• Harrison, NJ – Buildings may be constructed in accordance with the regulations of the applicable zoning district except that the minimum lot area shall not be less than two acres, and provided that no portion of the building is constructed on a slope where the grade exceeds 20%.
• State of New Jersey’s Water Quality Management Planning rule (N.J.A.C. 7:15)  — The applicant shall demonstrate through site plans depicting proposed development and topography that new disturbance is not located in areas with a 20 percent or greater slope.  [Municipalities may include additional restrictions for 20 percent slopes or include restrictions for lesser slopes, at their discretion, as long as the minimum requirements above are met.]
• 10 Towns Watershed Committee as a prototype for adoption by its municipal government members. — On slopes of 25% or greater, no development, re-grading or stripping of vegetation shall be permitted. Any disturbance for roadway crossings or utility construction in areas of 25% slopes or greater are considered variance conditions and the applicant must affirmatively demonstrate that the roadway or utility improvements are necessary in the sloped area. The sloped area to be developed, re-graded or stripped of vegetation shall be drawn on the development plans for each individual lot.
• Lehigh Valley Planning Commission –15% to 25% slopes are only suitable for low-density residential, limited agricultural and recreational uses. Over 25% Only used for open space and certain recreational uses.
• Cranbury Township Ordinance # 03-11-07: AN ORDINANCE REGULATING THE INTENSITY OF USE IN AREAS OF STEEPLY SLOPING TERRAIN TO LIMIT SOIL LOSS, EROSION, EXCESSIVE STORMWATER RUNOFF, THE DEGRADATION OF SURFACE WATER AND TO MAINTAIN THE NATURAL TOPOGRAPHY AND DRAINAGE PATTERNS OF LAND.  — The applicant shall demonstrate through site plans depicting proposed development and topography that new disturbance is not located in areas with a 20 percent or greater slope.
• Shenandoah, VA; – Prohibits construction on slopes greater than 20 percent and replaces  the previous ordinance that allowed building on lots with slopes of up to 40 percent with a special use permit (SUP).
• Van Buren County – (2) No site disturbance shall be allowed on slopes exceeding twenty-five (25%) percent
• Chimney Rock Village  – As the definition of steep slope indicates, any proposed development whose average natural slope is less than 15% is not subject to the regulations for permitted density as set forth herein.  Any proposed development which meets the definition of steep slope and whose average natural slope is above 30% is subject to the most restrictive site density.
  • (A) 15.0% to 19.9% slope: 1 dwelling unit per 3 acres.
  • (B) 20.0% to 24.9% slope: 1 dwelling unit per 5 acres.
  • (C) 25.0% to 29.9% slope: 1 dwelling unit per 7.5 acres.
  • (D) 30.0% slope and greater: 1 dwelling unit per 10 acres.

Summarizing the provisions of the thirteen above samples reveal that all impose restricted use on “steep slopes”; one imposes additional conditions for slopes greater than 10%; three impose additional conditions for slopes greater than 15%; seven or 54% impose additional conditions for slopes greater than 20%; two following implementation of their original slope ordinances later revised them to more restrictively make slopes greater than 25% non-buildable, and do not allow even soil disturbance on slopes greater than 25%.

These significant facts cannot be ignored:

1)      Twelve or 92% impose additional conditions for slopes greater than 25%.

2)      All thirteen impose additional conditions for slopes greater than 30%.

3)      All thirteen either completely disallow or reduce “buildable” areas by 80 to 90% within areas defined as steep slopes.

CONCLUSION:

It would be prudent for Sandoval County to adopt a steep slope ordinance that may need to vary for certain areas.  Soil types vary within the county and consequently so does the natural angle of repose of slopes.  Santa Fe County has a 30% maximum slope for development, but its soil types are far more stable than those found in Placitas and around Rio Rancho, although the soils found in the Jemez may be similar to those in Santa Fe County.

Maximum buildable slopes within the Placitas area should not exceed 20% without significant restrictions, and possibly, due to our unstable soil types, not exceed 15%.  A simple observation and sampling of existing developments within the Placitas area could determine the predominate voluntary limits of buildable areas.  Statistical analysis of the sample set would then conclusively define the market driven maximum slope, and would provide solid foundation for the implementation of PAP goals, particularly “maintaining the semi-rural landscape and existing development patterns” of the Placitas Area.  This in turn would work towards providing a usable definition of the crucial term “undevelopable”.  The housing unit calculation necessary for Cluster SU applications would then become a mathematical solution, as it should be.

Safety Illustration:

Slope failures may be triggered by construction practices. Development on slopes commonly requires construction of a flat site on which to put a house. With the cut-and-fill technique, material is removed from the uphill part of the site and placed on the downhill portion to form a level surface. The fill material may compact and settle later, and cause cracking of foundations and walls. The extra load of a building may trigger a slope failure on unrestrained fill. Retention walls and pre-compaction of fill may lessen the potential for that type of slope failure. Construction excavation may over-steepen slopes, increasing the chance for slope failure. Fill material may settle, causing cracking in buildings.

Report: Cashwell Re-Zoning Hearing, Oct. 27, 2011

by Orin Safier

On Oct. 27 the Sandoval Planning & Zoning Commission (PZC) held the second part of the hearing on the latest application for Cashwell Re-Zoning for Cluster Housing.  No final decision was made, and this matter is scheduled to be taken up next at the Dec. 8 PZC meeting.

I will first report the end result of this meeting, then briefly report some of what led up to it.  This result was announced by Chairman Arango, who said that he had reached these conclusions due mainly to a previous conversation with the County Attorney and Michael Springfield, Director of the Development Department.  Here are the main points Arango laid out:

1)      All that the County Commission is deciding, if it gives approval to the application, is that the applicants (Cashwell and associates) have permission to do cluster housing on the property, not what the full details would be of what is built there.  Therefore the applicants do not have to produce a full subdivision plat at this time.  This goes against the recommendation previously made by the County Staff (that is, the Development Department) in its Staff Report that this platting would be required for the application to proceed further.  The applicants did promise at this meeting that subdivision platting, dividing the property into building lots, would eventually be done – though they made no promises about whether that would be done any time in the foreseeable future.

2)      The applicants would also not be required at this time to prove 100 year water supply.  (This had also been recommended in the County Staff Report.)  Arango said that a study by Shoemaker and Associates, produced in 2008 when Cashwell submitted the first application, was adequate to address the water issues as regards the re-zoning application.  (That study, though, did not go into detail about water availability, and in fact expressed skepticism about the availability of water of adequate quantity and quality at the Cashwell property.)

3)      The applicants’ attorney had argued that Section 19F of the Zoning Ordinances, Zone Map Amendment Guidelines, do not apply to the present application.  Arango said that the County disagrees, and that the applicants need to address these issues before the application can proceed.  Specifically, the applicant needs to provide more information about:

a.       Accessibility – The application states that there is a “working agreement” with adjacent property owners to the north of the Cashwell property as to building a road off of Overlook Road, accessing the ridge top.  However George Hidy, past president of the Overlook Homeowners Assoc., testified that no such agreement existed, at least not with the HOA or the developer Bob Poling, who owns an easement where that new road would go.  Applicants’ attorney had raised questions during the hearing as to whether Poling’s easement could block construction of a county road there, and even whether Poling was current on property taxes for his easements.  Arango said that applicants must provide either proof of access to build a road off Overlook road, or show how to build alternative roads to the ridge coming off Hwy. 165, or show that applicants have entered into good faith negotiations with Poling to get access through the easement.  Emergency services, that is the Fire Department, must also weigh in on whether the road plans meet standards.

b.      Liquid Waste – Though Arango maintained that the applicants need do nothing more to address water facilities, they do need to specify more adequately liquid waste facilities.  Ken DeHoff, who lives on Pine Court on the west end of the ridge, had presented detailed objections to the vague liquid waste plan in the application, and Arango indicated that the applicants need to address these objections in more detail.

c.       General Compatibility – Provision 19(F)(5) of the Zoning Ordinance requires: “The general compatibility of the proposed amendment with actual or prospective permissive zoning use of adjacent properties”  Arango said that this was inadequately addressed in the application.  Specifically, the question of how plans to build on the ridge-top would affect visibility, both from Hwy. 165 (south) and Overlook (north), must be addressed.  The applicants should produce pictures showing how this might look from these different perspectives.  The implication is that this should be compatible with other building in the area.

d.      Lots – Though Arango said that the applicants would not be required to do a subdivision platting at this time, they must make clear how the property would divide into “lots”.  The application mentions mainly “building envelopes” rather than lots, so it was unclear even the general nature of later subdivision.  Arango said that County Staff would be preparing a letter to the applicants specifying what is needed to make clear the nature of the lots.  This would then also make clear how much of the development as planned would be “common open space”. 

e.      Open Space – In addition to the concern about the amount of open space after lots are specified, Arango raised the concern of Ken DeHoff regarding placement of liquid waste facilities on the “common open space”.  DeHoff raised the issue as to whether, if such facilities were located there, that would conform with the definition of “common open space” in the Zoning Ordinances.  Whether or not that designated area would be used for waste treatment needs to be spelled out by the applicants.  In addition, the use of the open space as a “wildlife corridor” needs to be clarified.  Gerald Barkdoll pointed out in his comments that it makes no sense to have a wildlife corridor where there is no connection to other open spaces.  Arango indicated that the applicants need to more adequately address their claim that this cluster housing development helps preserve wildlife corridors.

f.        In the Zoning Ordinance Section 10(D)(3)(c)(2) for Cluster Housing, it specifies that: “Common Open Space may form one or more areas within the development, provided that at least one area is at least 60% of the total Common Open Space.”  Arango said that once the lot areas are calculated, and excluding such features as driveways that cannot be part of open space, it must show that this 60% requirement is met. 

g.       Number of Houses on Ridge-Top – During the hearing the applicants had indicated that they are flexible on the maximum number of houses that could be built on the ridge top.  Arango said that they need to specify this in the application.  Applicants should produce a new plan map, showing the actual number of ridge-top houses planned, and also the cluster housing in general throughout the property.

h.      Setbacks – Arango pointed out that there is nothing in the application about setbacks from property lines, and between structures, which overrides what is in the Zoning Ordinance for Rural Residential/Agricultural Zoning:  “All residential and residential-related buildings and structures shall be located with a front setback of no less than twenty (20) feet, side setbacks of no less than ten (10) feet and rear setback of no less than ten (10) feet”  If applicants wish different setbacks, they need to revise their application.

In general, Arango said that in order for the hearings to proceed the applicant must address these issues, mainly involving section 19(F).  Then the applicants would also have to revisit the section 10 provisions regarding Special Use Cluster Housing.

Because responding to these requests from the Chair would require considerable work, the applicants said that they may have to seek a continuance of the proceedings beyond the Dec. 8 date.

At the beginning of the meeting Commissioner Bob Cote recused himself from participation on the Cashwell application, due to a business relation with Mr. Seavey, who represents the Cashwell applicants.

There is more to report about the citizens’ testimony, but I will save that for another forum entry.  The above gives the gist of the Chair’s instructions to the applicant.

REMARKS ON THE COUNTY PLANNING AND ZONING COMMISSION’S PROCEDURE FOR HEARING THE CASHWELL REZONING REQUEST

Presented at the Planning and Zoning Commission (PZC) meeting, August 25, 2011

Stephen M. Barro

October 2, 2011

This is a slightly edited version of remarks presented at the PZC hearing on the Cashwell matter, with some material added (shown in brackets) to clarify the context.  The hearing is to continue on October 27, 2011.  As yet, there has been no word on whether the PZC intends to make any changes in its procedure.

Thank you, Mr. Chairman.  My name is Steve Barro.  I live at 1 Alto Court in Placitas.  I was going to comment on certain negative aspects of the proposed Cashwell development and on aspects of the Cashwell plan that do not meet the tests set forth in the zoning ordinance, but under the circumstances I believe that the procedural issues have priority, and those are the only things I am going to talk about.  I think the process we are going through right now illustrates the importance of the points that attorney Paul Livingston made at the beginning of this proceeding, [when he requested that the Cashwell matter be considered in a full quasi-judicial hearing, as the law requires.]

The Cashwell representatives and their County staff allies have spoken for over an hour and a half.  You have allowed them to offer an organized, uninterrupted presentation [in support of their application for Special Use zoning that would allow a clustered housing development on the Cashwell property.]  We, the opponents [of the rezoning request and the proposed development], who represent the overwhelming preponderance of opinion in the Placitas community, are being limited to fragmentary two- to five-minute remarks.  And on top of that, you apparently are ready to give the applicants the last word as well as the first.

Now, I have had the pleasure of reading the New Mexico Supreme Court decision in the Albuquerque Commons case, in which Mr. Flynn-O’Brien [the Cashwells’ attorney] played such a prominent role.  With respect to quasi-judicial procedure, the prominent themes in that decision are fairness, justice, and due process.  You are giving us none of those.  If you wanted to be fair, you would give our side the same one- to two-hour opportunity to present our own coherent, organized case, and then the full opportunity to rebut, point by point, everything that the applicants have had to say.  Short of that, this hearing does not come close to being fair or to giving us the due process that the law requires.

When Cashwell came up in 2009, we in the community did not know or understand our procedural rights in this matter.  This time we know them.  So I’m going to offer you a prediction.  If you go ahead and go through this process in the manner that Chairman Arango has outlined, without giving us equal time or an equal opportunity, I predict that this time Placitas residents will not roll over; that we will pursue the procedural question before all relevant bodies and in all relevant forums, however long it may take.  Thank you for your attention.