After about an hour and a half of wrangling over the definition of a “minor subdivision,” the Edgewood town council voted to remand an appeal back to its planning and zoning commission.
The application for a minor subdivision came from Jonathan Pillars; a decision by the town’s planning and zoning commission July 5 approved the application, but added several conditions.
The appeal was a quasi-judicial procedure, meaning that the town council acts as judge, interpreting the town’s laws. Testimony is sworn and the applicant’s next recourse, if so desired, would be an appeal to district court.
The public hearing pointed out a change from Edgewood’s new administration under Mayor John Bassett, who was elected in March.
The previous mayor, Brad Hill, had worked with the town council and a stable of attorneys to craft an ordinance allowing a “minor subdivision” with the intention that simple lot splits could proceed quickly if they met certain conditions.
Bassett, who formerly chaired the town’s planning and zoning commission, has been criticizing the ordinance since its days as a draft, as being confusing and self-contradictory.
It was against that backdrop that the public hearing took place.
Pillars told the council that town staff advised his agent, Tim Oden, in May that the application could proceed as a minor subdivision.
The matter was set for a July 5 planning and zoning commission meeting, and Edgewood staff “recommended approval conditioned on extension of utility lines to lot D5 and the extension of Woodline Drive, to the end of lot D5 prior to any construction,” Pillars said. “Oden stated that the staff conditions were agreeable.”
He argued that “it is not within the planning and zoning commission’s purview or authority to determine whether or not the application should come to them for a minor subdivision process and should not be under consideration in its deliberation process.”
Bassett said there was information that had not been known to the planning and zoning commission, including a road maintenance agreement for the existing subdivision.
“All of the infrastructure is to the original 8-acre lot,” Pillars said, adding that all three lots would have electricity available, but not water lines. “That would be the only infrastructure needed to be done.”
Pillars said he has not spent money to lay in water lines because the cost is high and he doesn’t know if the application to subdivide will be approved or not, or if a prospective buyer might prefer a well: “I was in the process of starting to build a road, … but when all this happened I thought I might not be able to go through with this project, so why invest any more money into it until I find out if it’s going to be approved or not?”
Pillars said that road work was done within a day or two of the July 5 hearing.
The crux of the disagreement between Bassett and two of the councilors, Rita Loy Simmons and Sherry Abraham, centered on that infrastructure.
Bassett maintained that a minor subdivision is allowed only if no infrastructure is needed; Simmons and Abraham argued that the easement was enough.
“If you want to talk about the intent of the subdivision ordinance, we could look at the subdivision ordinance,” Bassett said. “I trust you brought your copy with you.”
When Abraham asked for a recess to get her copy from her car, Bassett replied, “I’d rather not.”
Quoting from the ordinance, Bassett said, “However, the guidance, advice and recommendations of the planning and zoning officials shall not be construed as binding on the planning and zoning commission or the town governing body. So I think the commission was within their purview to not accept staff’s recommendation.”
Moving to infrastructure, Bassett added, “According to this [ordinance], there should be no need for any infrastructure.”
Simmons argued that the council should “grant the appeal and adopt the staff’s conditions and allow the subdivision.”
“I recall very vividly the discussion of the minor subdivision and the admonition I gave this group,” Councilor John Abrams said, “that a minor subdivision should have no need whatever for any infrastructure, otherwise it does not meet the test.”
“If I had been told it was a major subdivision, I never would have gone with any of this, because it’s way too extensive,” Pillars said. “I felt it fit into those parameters, staff did, and so did my expert, Mr. Oden. So what I’m saying if there’s a change of horses in the middle of the stream here, I sure wish I had known about it ahead of time.”
“There are portions of this minor subdivision that are in direct conflict with each other all throughout it,” Bassett answered. “That’s one of the reasons it reads the way it does.”
The discussion continued back and forth, mostly between Bassett, Simmons and Abraham, arguing whether road or easement constitute infrastructure.
“The applicant came in to planning staff and did rely on planning staff’s review of this in statements,” the town’s attorney, Nick Autio, said. “Clearly that doesn’t bind you. You can reverse planning staff. It’s an unfortunate thing for the applicant, but I just wanted to give that background. You do have the authority to define this ordinance in your decision tonight.”
“My interpretation if there’s an easement for a road that is the same as having a road,” Abraham said.
“An easement is not a road,” Abrams countered.
Testimony continued with the only other witness, Rick Martin.
Martin said he lives across from Pillars and opposes the subdivision because of the road maintenance agreement.
“I find it offensive that a property owner coming in to develop property wants myself and others to pay for his benefit,” Martin said, adding that he has not been approached by Pillars or anyone else.
He said he and another neighbor maintain the road and don’t charge anyone to do it. “We’re not asking for anything, we just want fair and equitable treatment.”
There was no public comment on the matter; the council picked up its deliberation again, with Councilor Chuck Ring making a lengthy motion that would remand the matter back to the planning and zoning commission for reconsideration, taking new evidence like the road agreement into account. His motion also called for the commission to examine the conditions it had placed on the approval, which included building a cul-de-sac abutting property owned by someone else and a covenant which would limit further subdivision by limiting lot size to at least 2 acres.
Minimum allowed lot size in that zoning is 1 acre.
Simmons questioned the mayor’s “ability to vote on the matter because of prejudice” again. “Those were the rules of the game at the time,” she said.
“So what are these rules, Councilor Simmons?” Bassett asked. “Here’s what you wrote out [in the subdivision ordinance]: All lots must be accessible from existing roadways and streets. Only those lots which meet all the conditions set forth herein are eligible to be subdivided as a minor subdivision.”
“He’s got an easement,” Simmons said.
“It’s not a road,” Bassett answered.
“That’s okay,” Simmons said.
“That’s not what it says here,” Bassett countered.
Abrams said, “Infrastructure denotes that an improvement has been made. An easement is not an improvement, it’s a promise of one.”
The motion passed, with Simmons the lone vote against it.
A new public hearing is scheduled for the Oct. 3 planning and zoning commission for another public hearing—as a minor subdivision.
Leota started working for The Independent in 2006, working her way up through the ranks. An employee buyout in 2010 led to her ownership of the newspaper. Leota has served on the board of the N.M. Press Association, and is currently its First Vice President. She is passionate about health and wellness, especially mental health, and loves making art. She can be reached at [email protected]