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Fighting the battle ‘all over again’

SANTA FE, N.M. — “Not In My Backyard” takes on a whole new meaning when the fear is that a new housing development could create drainage and erosion issues for neighbors, and what ends up in their backyards – and maybe even their homes – is a lot of mud and water.

That’s a concern for neighbors of the proposed Estancias del Norte development near Santa Fe’s downtown that was approved by the city’s Planning Commission in March … or not.

The decision to approve a preliminary subdivision plat to make way for 49 upscale homes on 41 acres of prime real estate east of Bishops Lodge Road and north of Artist Road is being appealed to the City Council in part because a homeowners association says the meeting was not properly advertised.

The New Mexico Open Meetings Act states that any decisions made during a meeting that’s not properly noticed don’t count.

At that same disputed meeting, the commission approved a request for variances to allow the developer to exceed the 10 percent maximum grade for a small road and to change zoning for a portion of the property from commercial to residential. Each request for variance was recommended for approval by city Land Use Department staff.

The neighborhood association is also appealing the Planning Commission’s decisions because they think the project could potentially cause damage to homes downhill from the site and the developer wouldn’t be liable.

And they say that they’ve won this battle before. Over the years, proposals for a different, smaller development were rejected five times by either the Planning Commission or City Council. The matter wound up in district court and the city’s decisions to deny the applications were upheld.

“This battle has already been fought,” said Jennifer Johnson, vice president of the Greater Callecito Neighborhood Association. “Now they’re making us fight it all over again.”

Development history

That battle was fought more than 20 years ago, long before Ernie Romero, of local Phase One Realty, bought the 41 acres now proposed for development, plus 28 adjacent acres that he eventually sold to Cody North in 2015. North recently earned approval from the city to develop eight lots for residential use.

Originally, the properties were part of the 1981 master plan for Estancia Primera, a 151-dwelling unit project that was approved by the city, according to city documents. The first phase of that project was completed south of Artist and Hyde Park roads, but the other two phases, which were planned for the property Romero bought, were never developed.

A horned lizard climbs an eroding arroyo bank near the site of housing development planned near downtown Santa Fe off Artist and Hyde Park roads. Neighbors fear the project will increase erosion and flooding. (Eddie Moore/Albuquerque Journal)

The piece of Estancia Primera subdivision that was built out should serve as a cautionary tale for Estancias del Norte today, neighbors say. The development caused not only water, but also sewage to flood downhill properties, causing hundreds of thousands of dollars in damage paid for by the city, not counting additional costs to prevent more flooding.

Then came the Los Vecinos development, a proposal for a 36-unit residential development on the same 41 acres where the Estancias del Norte development now is planned. That’s the one that the city denied over and over again, and ended up in court and cost neighbors money to fight it.

That happened long before Romero bought the site. He said Estancias del Norte is a different project that has been modified to address the concerns of the neighbors.

“We have complied with everything that’s required of us in the city code and regulations,” he said in a phone interview Wednesday.

He said neighbors just don’t want to see the project completed because of NIMBYism.

“The neighbors have always seen it as vacant land and they want it to stay that way,” Romero said, adding that he thinks opponents are being disingenuous. “The bottom line is they don’t want to see anything happen there.”

Liability issues

Neighbor John Forsdale, who lives on Valley Drive and is not a member of the Greater Callecito Neighborhood Association, doesn’t want to see what happened with Estancia Primera happen all over again. He’s raised his concerns about the proposal at Planning Commission meetings.

“It’s not a plausible situation,” said Forsdale, who has a lot of unanswered questions. “How do you defend yourself against this kind of erosion? Where’s the enforcement going to come from? Who do you go to on something like this? What can the city do to get the developer to make changes?”

One final question from Forsdale was, “How do you pay for a lawyer?”

They may need one. If the developer isn’t liable for any damage that could result, then who is? Forsdale thinks the liability falls on a future homeowners association for the Estancias del Norte development, which, lacking both homes and owners, currently doesn’t exist.

The city’s public information officer did not respond to email and phone messages this week. District 1 city councilors Signe Lindell and Renee Villarreal, in whose district the property is located, could not be reached for comment Wednesday.

Romero said he’s playing by the rules. He doesn’t understand the argument about liability.

“I don’t know what they mean by that. People buy and sell property all the time. It’s governed by a whole set of laws set by the state and city. I follow the laws,” he said.

When the Planning Commission approved the changes in March, it did so with 22 conditions. About half those conditions were suggested by Design/Enginuity LLC, a Santa Fe engineering firm.

“It is my professional opinion that the plans will improve the current conditions of the site and reduce the existing active erosion conditions,” wrote Design/Enginuity’s Oralynn Guerrerortiz.

“I think the project is actually going to help with the drainage and the erosion,” Romero said. “It’s a good project. It’s an infill project with very low density and it doesn’t disturb areas protected under city code.”

But neighbors say that the engineering firm’s work was paid for by Romero, not the city, so was not an independent assessment.

Forsdale said it seemed to him the whole process was biased. “It’s frustrating,” he said. “The developer gets all the time they want to speak about their plans, but neighbors get two minutes apiece.”

He hopes the city doesn’t see it as an infill project that will help put a dent in Santa Fe’s housing shortage. Forsdale said he thinks the houses that would be built on the site, not far from the Plaza, would likely be marketed as second homes for people from out of state.

Old dams in place

On Wednesday, Forsdale led a Journal reporter and photographer on a hike up Arroyo de las Piedras, which runs behind his home and abuts his backyard. He pointed out numerous check control dams likely built in the 1930s and 1940s as a WPA project.

“So they’ve been working on this for 80 years,” he said.

The dams have held up pretty well, he said, but some of them have crumbled. It’s not plausible, or at least practical, for anyone to get into the narrow channels with a backhoe or bobcat to fix them, or build new ones, if that’s the solution.

Forsdale pointed out other areas where rain runoff has eroded the hillside.

“Erosion is dramatic once it gets started,” he said.

He eventually diverted the tour uphill from the arroyo, where a sewer line was recently installed. It skirts the backside of El Matador condominiums.

About three years ago, he said, a major rainstorm resulted in a flash flood. Sediment quickly accumulated and allowed the water to breach a block wall and flood some of the homes.

Straw wattles along a recently installed sewer line are intended to slow storm runoff near where a new housing development is planned near downtown Santa Fe. Residents downhill from the development are worried about flooding. The owner says he’s met all standards. (Eddie Moore/Albuquerque Journal)

Wattles, tubular structures filled with straw as a temporary sediment control measure, have been placed on the hillside, but it was easy to spot where what little rain water there’s been this year has carved tiny channels underneath them.

What happens when the monsoons come? Forsdale says that same storm that breached El Matador filled the arroyo behind his home with about 7 feet of water and nearly reached the 500-year flood line.

“This is a delicate, steep hillside,” he said. “Erosion is inevitable. The question is how fast, and what can we do to minimize it?”

It’s unclear when the homeowners association appeal of the Planning Commission’s decisions in favor of Estancias del Norte will come before the City Council.

“I guess what needs to happen now is I need to go door to door and talk to people about this,” he said, adding that only about 80 homeowners are even aware of the situation. “Are (the developers) going to make the situation worse? And is there anybody watching over it?”