STATE OF NEW MEXICO

COUNTY OF SIERRA
SEVENTH JUDICIAL DISTRICT

Kim Audette, Ariel Dougherty, and Sophia Peron

Joint Appellants

v. Case No: D-0721-CV-2008-103

City of Truth or Consequences Commissioners:

Lori Montgomery, Fred Torres, Evelyn Renfro,
Jerry Stagner, and Steve Green
And
Hot Springs Land Development, LLC and
Hot Springs Motorplex Development, LLC
Appellees

Statement of Appellant Issues

COMES NOW the appellants before the District Court in accordance with

Rule 1-074 for an Appeal from Ordinance 588. Ordinance 588 was approved by the City

Commissioners on August 18, 2008.

Statement of Issues:

1. The rights of the people to their vote and to due process are integral to the

governance of our great state of New Mexico.

2. The Planned Unit Development Code (Article XV of the City of Truth or

Consequences Codes) is a newly written zoning code that was approved in August

of 2007. There is no history to provide a preponderance of evidence for the City

Commissioners to use in making their decision.

3. One of the City of Truth or Consequences Planning and Zoning Commissioners

(Raymond Ruffini) is not a qualified voter in the City of Truth or Consequences

and yet votes on City of Truth or Consequences Planning and Zoning issues.
 4. A qualified voter is deprived of the right to vote by continuing to keep Ruffini on

the Planning and Zoning Commission.

5. Planning and Zoning Commissioner Ruffini pushes the progress of the zoning

application through the system in improper ways, using his improper position on

the Planning and Zoning Commission and his improper vote to circumvent the

rights of the people of Truth or Consequences to due process.

6. On August 18th, 2008, City Manager Aguilera told the City Commissioners that

City of Truth or Consequences Planning and Zoning Commissioner Ruffini said

that Ruffini wanted the City Commissioners to decide the zoning issue. Ruffini

can vote in Truth or Consequences because City Manager Aguilera says he can.

7. This is the first attempt at Planned Unit Development (PUD) zoning for the City

of Truth or Consequences.

8. The Planned Unit Development Code was written by City Manager Aguilera.

9. This new code does not qualify for the deference that is usually given to zoning

code decisions, in the appeal process, because the new code does not have a

preponderance of evidence behind it.

10. The Planned Unit Development application is the largest example of exclusionary

zoning, Planned Unit Development zoning, and spot zoning in the state of New

Mexico. The size of the land is about 13 square miles, and involves at least one

variance that will not be given a Public Hearing.

11. The zoning applicant, HSLD, cannot conform to our current Comprehensive Plan,

therefore land included in Ordinance 588 is not able to be zoned at this time.

Audette, et al v City of T or C et al 2
 12. The City of Truth or Consequences did not perform due diligence because they

did not seek the services of at least one Planned Unit Development (PUD) expert.

They simply do what the developers tell them to do.

13. The Comprehensive plan specifies nuisance removal, not nuisance development

in exclusionary zones. The PUD application goes against the plans of the

community as laid out in our Comprehensive Plan.

14. Our Planning and Zoning Commission and our Comprehensive Plan are both

designed to handle small infill developments and 2-5 year plans. The 30 year, 13

square mile application is too big for our system to handle.

15. A letter from Planning and Zoning Commission, dated July 15, 2008, states that

the zoning application was denied. The City Commissioners failed to officially

acknowledge, approve, or deny the letter.

16. No appeal was filed concerning the denial of the zoning application of

HSLD/HSMD.

17. No re-application was filed by HSLD/HSMD.

18. No request for a review was filed by HSLD/HSMD.

19. Every submission of the application, in the Record on Appeal, is another copy of

the same original application. Nothing was filed by either of the applicants

indicating that they wanted to continue the zoning application process.

20. Ordinance 588 is an attempt to use the legislative zoning process to zone an

individual's land in order to circumvent the rights of the citizens of Truth or

Consequences to their due process of Public Hearings.

Audette, et al v City of T or C et al 3
 21. Ordinance 588 attempts to zone annexed land that is not, at this time, under the

jurisdiction of the Comprehensive plan, therefore on August 18, 2008, the City

Commissioners voted to zone land outside of their jurisdiction.

22. Between August 18, 2008 and September 17, 2008, over 260 people signed a

petition to put Ordinance 588 on the ballot for a vote by the residents of Truth or

Consequences.

23. City Manager Aguilera is responsible for the clerk censoring the comments of the

people in the public record by summarizing the public testimony in the minutes of

the meetings, instead of transcribing verbatim minutes.

24. Throughout this issue of the zoning application by HSLD/HSMD, other

improprieties occurred concerning Commissioner Stagner (NMSA 3-10-7):

a. The Public Record shows that Hot Springs Motorplex Development, LLC

(HSMD), in its Public Regulation Commission filings for Incorporation on

September 26, 2006, listed “210 Main Street” as the "Location of Business

Address". 210 Main was Commissioner Stagner’s work address at the

time.

b. The Public Record shows that on September 11-13, 2007, Commissioner

Stagner traveled to Florida, paid by the developers.

c. The Public Record shows Hot Springs Land Development, LLC (HSLD)

filed with Commissioner Stagner's address, again, as its location on

December 5, 2007. HSLD, LLC is a sole proprietorship.

d. On July 14, 2008, Commissioner Stagner testified at the Public Hearings

of the Planning and Zoning Commission as a proponent of HSLD/HSMD.

Audette, et al v City of T or C et al 4
 25. The decision-making objectivity of 4 of the 5 City of Truth or Consequences

Commissioners was tainted by a contract and payment on that contract (signed on

August 17, 2007 in disregard of NMSA 3-54-1). The contract is with Hot Springs

Land Development, LLC/Hot Springs Motorplex Development, LLC (referred to

hereafter as HSLD/HSMD). Biased Commissioners should recuse themselves.

They are: Commissioners Montgomery, Renfro, Stagner and Torres.

26. City Manager Aguilera deprives the citizens of Truth or Consequences of our

right to honest officials by misinforming and manipulating our Planning and

Zoning Commissioners, our City of Truth or Consequences Commissioners, and

the public.

Statement of Facts:

1. A City or Truth or Consequences Planning and Zoning Commissioner, Raymond

Ruffini, is not registered to vote in any precinct in Truth or Consequences. Only

qualified voters who are registered within the City of Truth or Consequences have the

right to be nominated for a seat on City of Truth or Consequences (heretofore referred

to as "City") boards. NMSA 1-1-7.1 and NM Constitution, Article 7 Sec. 1

2. On Aug 17, 2007, 4 of the 5 City Commissioners (Lori Montgomery, Evelyn Renfro,

Fred Torres, and Jerry Stagner) voted to sign a contract with developers Hot Springs

Motorplex Development, a/k/a Hot Springs Land Development, LLC (herein after

identified as HSMD/HSLD) concerning an exclusive “Option Agreement for

Purchase and Sale” of current and future rights. The City of Truth or Consequences

received payment on that contract. (Sec. 9-Q, pg 93 ¶18-¶20)

3. On May 19, 2008, HSLD/HSMD filed to the City of Truth or Consequences for a Zone

change to Residential/Commercial Planned Unit Development (RCPUD) and

Audette, et al v City of T or C et al 5
 Industrial Planned Unit Development (IPUD). (Sec 5-g., pg 12-47) In a cover letter

HSLD/HSMD requested placement on the July 1, 2008 calendar of the Planning and

Zoning Commission. (Sec 5-F, pg 10-11 and Sec 9-N pg 23-24)

4. The City of Truth or Consequences added their Zone Change request on June 6, 2008

for an Industrial Planned Unit Development (IPUD) of acreage south of, and north of,

the Municipal Airport. (Sec 5-I pg 49-52 and Sec. 9-P pg 33-74).

5. The zoning applications were moved to July 14 because a concerned citizen

complained about City Manager Aguilera's improper notice to the public. (Sec 3-G,

pg 10 ¶5-7)

6. On July 14, 2008 a Public Hearing was held by the Planning and Zoning Commission

on the zone change applications by HSLD/HSMD and the City. The Planning and

Zoning Commission voted to deny of all of the zone change requests. (Sec 3-G pg 20,

last paragraph, through pg 21 ¶1)

7. The letter reporting the denial to the City Commission from the Planning and Zoning

Commission is dated July 15, 2008. (Sec 9-M, pg 22 )

8. The City Commissioners did not acknowledge the July 15, 2008 letter from the

Planning and Zoning Commission, which reported the denial of the zoning

application in question. City Manager Aguilera, however, acknowledged the delay

of annexation to August 5, 2008, which occurred in the same meeting (July 14), on

July 22, 2008. (Sec 6-B pg 10 ¶6)

9. Ordinance 588 is out of the jurisdiction of the City of Truth or Consequences. (NMSA

3-21-5) A comparison of the map of the physical boundaries of proposed zoning

Ordinance 588 (Sec 2-B, pg 52) and the map of the physical boundaries of the

Comprehensive Plan (Sec 8-L pg 77-78) shows that the boundaries of Ordinance 588

Audette, et al v City of T or C et al 6
 are much larger than the boundaries of the Comprehensive Plan. Unfortunately, the

maps that are supposed to be on pages 77 and 78 are missing from the Record on

Appeal.

10. NMSA 3-21-5 also applies from the perspective of text amendments: When

comparing the land use lists, between the HSLD/HSMD Planned Unit Development

application (Sec 7-G pgs 136-139 and Sec 2-B, pgs 53-59) and the Comprehensive

Plan (Sec 8-L pg 69 ¶11-pg 70 ¶2; pg 79 ¶2-¶10; and pg 85 ¶2-¶3), it's clear that the

land does not conform to the City Comprehensive Plan in terms of intent of use.

11. The Record on Appeal contains no written appeal to the Planning and Zoning

Commission denials of July 14, 2008 as required by T or C City Code 15-9 A, B &

D, and NMSA 3-21-8. Therefore: No appeal was filed.

12. On July 22, 2008, the Commissioners voted to hold Public Hearings (Sec 6-B pg 21

¶16) on August 18, 2008, concerning four issues: Annexation petition; HSMD/HSLD

zone request; City zone request; and Subdivision Master Plan of HSMD/HSLD.

13. On August 5, 2008, at the Planning and Zoning regular meeting, Resolution 06-08/09

(the zoning issue) was removed from the agenda as a "mistake". (Sec 7-L Pg 233 ¶13-

¶18)

14. On August 18, 2008, City Manager Aguilera told the City Commissioners that

Ordinance 588 was on the agenda because the City Planning and Zoning

Commissioner Ruffini told Aguilera that Ruffini wanted the zoning issue to go before

the City Commissioners. (Sec 9-Q Pg 95 ¶9). NMSA 3-21-8

15. On August 18, 2008, the bias of Commissioner Montgomery was questioned because

of the contracts that she signed with HSLD/HSMD. Mayor Montgomery signed the

contracts, but 4 of the 5 current City Commissioners (Lori Montgomery, Evelyn

Audette, et al v City of T or C et al 7
 Renfro, Fred Torres, and Jerry Stagner) voted to sign the contract. NMSA 10-16-3-C

(Sec 9-Q pg 93 ¶18-20)

16. On Aug 18, 2008 the City of Truth or Consequences Commissioners sat as judges for

3 Public Hearings. One of the hearings concerned Ordinance 588, the zoning issue,

which is herein under appeal.

17. Sec 9-Q, the minutes of the August 18, 2008 hearings, is not in shape to be used for

the Record on Appeal. The minutes were passed as they were drafted and City

Manager Aguilera said that it is due to technical problems.

18. The Public Hearings should not have occurred at all, because the number of unbiased

Commissioners is not a quorum for the meeting.

19. Then the Commissioners voted. Ordinance 588, the zoning change, was one of the

items passed on August 18, 2008 without discussion. (Sec 9-R pg 174 ¶5-¶10)

20. Notice of Appeal was timely filed on September 17, 2008. District Court Case D-

0721-CV-2008-103

Authorities:

1. NM Constitution: Article 7 Section 1. [Qualifications of voters; absentee voting;

school elections; registration.] (pre-1971 version)

2. Every citizen of the United States, who is over the age of twenty-one years, and has

resided in New Mexico twelve months, in the county ninety days, and in the precinct

in which he offers to vote thirty days, next preceding the election, except idiots,

insane persons and persons convicted of a felonious or infamous crime unless

restored to political rights, shall be qualified to vote at all elections for public officers.

The legislature may enact laws providing for absentee voting by qualified electors.

Audette, et al v City of T or C et al 8
 All school elections shall be held at different times from other elections. (Emphasis

added)

3. NMSA 1-1-7.1. Residence for purpose of candidacy and signing of petitions; rule

for determining.

4. For the purpose of determining the residence of a person desiring to be a candidate for

the nomination or election to an office under the provisions of the Election Code

[Chapter 1 NMSA 1978] or for the purpose of determining the residence of any signer

of a petition required by the Election Code, permanent residence shall be resolved in

favor of that place shown on the person's certificate of registration as his permanent

residence, provided the person resides on the premises. (Emphasis added)

5. 3-54-1. Authority to sell or lease municipal utility facilities or real property;

notice; referendum

B. A municipality may lease or sell and exchange any municipal utility facilities or

real property having an appraised value in excess of twenty-five thousand dollars

($25,000) by public or private sale or lease, subject to the referendum provisions set

forth in this section. The value of municipal utility facilities or real property to be

leased or sold and exchanged shall be determined by the appraised value of the

municipal utility facilities or real property and not by the value of the lease. An

appraisal shall be made by a qualified appraiser and submitted in writing to the

governing body. If the sale price is less than the appraised value, the governing body

shall cause a detailed written explanation of that difference to be prepared, and the

written explanation shall be made available to any interested member of the public

upon demand.

Audette, et al v City of T or C et al 9
 C. If a public sale is held, the bid of the highest responsible bidder shall be accepted

unless the terms of the bid do not meet the published terms and conditions of the

proposed sale, in which event the highest bid which does meet the published terms

and conditions shall be accepted; provided, however, a municipality may reject all

bids. Terms and conditions for a proposed public sale or lease shall be published at

least twice, not less than seven days apart, with the last publication no less than

fourteen days prior to the bid opening, and in accordance with the provisions of

Subsection J of Section 3-1-2 NMSA 1978. (Emphasis added)

6. NMSA 10-16-3-C. Ethical principles of public service; certain official acts prohibited;

penalty.

C. Full disclosure of real or potential conflicts of interest shall be a guiding

principle for determining appropriate conduct. At all times, reasonable

efforts shall be made to avoid undue influence and abuse of office in

public service. (Emphasis added)

7. NMSA 3-10-7. Officers; removal for malfeasance in office; complaint; jurisdiction

of district court; hearing; serving notice.

Any person elected or appointed to an elective office of a municipality may be

removed for malfeasance in office by the district court upon complaint of the mayor

or governing body of the municipality. Any such officer is entitled to a hearing at a

time fixed by the court after not less than ten days' notice of such proceedings by

service, as in the case of summons in civil actions, with a copy of the complaint filed

in the proceedings.

8. NMSA 3-21-8. Appeals to zoning authority; grounds; stay of proceedings

Audette, et al v City of T or C et al 10
 Any aggrieved person or any officer, department, board or bureau of the zoning

authority affected by a decision of an administrative officer, commission or

committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or

ordinance, resolution, rule or regulation adopted pursuant to these sections may

appeal to the zoning authority. An appeal shall stay all proceedings in furtherance of

the action appealed unless the officer, commission or committee from whom the

appeal is taken certifies that by reason of facts stated in the certificate, a stay would

cause imminent peril of life or property. Upon certification, the proceedings shall not

be stayed except by order of district court after notice to the official, commission or

committee from whom the appeal is taken and on due cause shown. (Emphasis

added)

9. City of Truth or Consequences Code, Sec. 15-9. Appeals

A. Grounds for appeal: Any aggrieved person who is affected by a decision of an

administrative official or Commission in the administration or enforcement of this

Code may appeal such decision in writing, including a detailed statement of the

grounds of the appeal, and including the specific sections of this Code or other

codes, regulations, or ordinances or statute[s] which form the basis of the appeal,

pursuant to State Statutes 3-19-8, and 39-3-1.1, NMSA 1978, et seq.

B. Where to appeal/filing deadline: Appeals shall be filed with the Office of the City

Clerk within 30 days of the action being appealed.

C. Appeal of a decision by the Planning and Zoning Commission: Any aggrieved

person who is affected by a decision of the Planning and Zoning Commission

may appeal such decision to the City Commission. The appellant must show (in

writing) how he or she is directly affected by the decision, the Zoning Administrator

Audette, et al v City of T or C et al 11
 will determine if there is sufficient grounds for the appeal to proceed. The City

Commission, by a majority vote of all its members may, after all other procedures

established by the provisions of this Code have been exhausted, reverse, affirm, or

amend the order, requirement, decision or determination. (Emphasis added)

10. NMSA 3-21-5. Zoning; conformance to comprehensive plan.

The regulations and restrictions of the county or municipal zoning authority are to be in

accordance with a comprehensive plan and be designed to:

C. facilitate adequate provision for transportation, water, sewerage, schools,

parks and other public requirements; and

The zoning authority in adopting regulations and restrictions shall give reasonable

consideration, among other things, to the character of the district and its peculiar

suitability for particular uses, and to conserving the value of buildings and land and

encouraging the most appropriate use of land throughout its jurisdiction. (Emphasis

added)

11. Truth or Consequences City Code Sec. 11-2-2. The Planning and Zoning

Commission

G. Findings of facts for recommendations and decisions. In considering all requests,

the Planning and Zoning Commission shall review applicable plans and determine

whether the request will:…

7. Constitute a spot zone and therefore adversely affect adjacent property values.

(Emphasis added)

The Argument:

Relevance:

Audette, et al v City of T or C et al 12
 In the decision for an abuse of discretion and Administrative Appeal, the task falls to the

district court sitting in its appellate capacity. C.F.T. Dev., LLC v. Bd. of County

Comm'rs, 2001-NMCA-69,130 N.M. 775,32 P.3d 784, 2001-NMCA-69 at P9

Standing:

Appellants have standing by right of paying taxes and holding title to land within

the City. The appellants intend to show gross illegalities and that the overall integrity of

the community will be detrimentally affected.

The Right to Vote Issue:

The question of The City of Truth or Consequences Planning and Zoning

Commissioner Ruffini's residency is an issue because one of the duties of a T or C

Planning & Zoning Commissioner is to vote.

The reason that the City Commissioners considered the proposed zoning

ordinance at all on August 18, 2008 was a travesty of the process. On August 18th, 2008,

City Manager Aguilera told the City Commissioners that City of Truth or Consequences

Planning and Zoning Commissioner Ruffini said that Ruffini wanted the City

Commissioners to decide the zoning issue. Ruffini is the Planning and Zoning

Commissioner who cannot vote in the City of Truth or Consequences but has a vote on the

City of Truth or Consequences Planning and Zoning Commission. He can vote because

City Manager Aguilera says he can.

New Mexico laws under Chapter 3 or Article 21 aren't specific that City officials

involved in Planning and Zoning must be registered to vote on City matters in City

meetings. The NM Supreme Court deduced the conclusion that City officials must be

registered to vote in the jurisdiction in which they are seated. "Sunwest Bank v. Nelson,

1998-NMSC-12, P14, 125 N.M. 170, 958 P.2d 740 (stating that it is necessary to resort

Audette, et al v City of T or C et al 13
"to other statutory construction aids in order to discern the intent of the Legislature" in

the face of legislative silence on an issue)." HUGHES V. TIMBERON WATER &

SANITATION DIST., 1999-NMCA-136, 128 N.M. 186, 991 P.2d 16

When the NM Supreme Court looked at whether or not to allow an individual to

vote in any matter involving the public, they decided that the right to vote follows the

Constitutional definition of a voter, and that the action of voting requires residency in the

jurisdiction in which the voting occurs. "one must reside in the precinct where one

intends to vote" HUGHES V. TIMBERON WATER & SANITATION DIST., 1999-

NMCA-136, 128 N.M. 186, 991 P.2d 16 ¶12

Question of Judicial Conduct:

On August 18, 2008, Commissioners, Montgomery, Renfro, Stagner, and Torres

sat as quasi-judges arbitrarily, capriciously and outside of the law. Biased

Commissioners should have recused. "The City is not required to conduct its public,

quasi-judicial hearings following the same evidentiary and procedural standards

applicable to a court of law, although it must adhere to fundamental principles of justice

and procedural due process." In Certiorari on BLUFF NEIGHBORHOOD ASS'N V.

CITY OF ALBUQUERQUE, 2002-NMCA-075, 132 N.M. 433, W. 50 P.3d 182 (Emphasis

added)

The public records show that four of the five current Commissioners

(Montgomery, Renfro, Stagner, and Torres) have apparently been biased since Aug. 17,

2007, when they voted to sign a contract with HSLD/HSMD. The contract is an

impropriety under NMSA 10-16-3 and 3-54-1-B and C. The four Commissioners voted

to sign the contract with HSLD/HSMD, then signed the contract the same day, and

received payment on the contract. Therefore, the four commissioners could not ethically

Audette, et al v City of T or C et al 14
sit as judges in order to conduct a public hearing on Ordinance 588 on August 18, 2008.

(NMSA 10-16-3). Comm'n Investigation, 1999-NMSC-16,P42,127 N.M. 254,980 P.2d

37 (describing objective standard where the impartiality of a judge might reasonably be

questioned); High Ridge Hinkle Joint Venture v City of Albuquerque, 1994-NMCA 119

N.M. 40, 888 P.2d at 486 (a decision maker should be disqualified where an objective

observer would entertain reasonable questions about the decision maker's impartiality).

Liteky, 510 U.S. at 555; cf. Las Cruces Prof'l Fire Fighters, 1997-NMCA-031, P 23 ("a

member of a tribunal is necessarily disqualified whenever prior conduct of the member

indicates a view that would favor one party or the other"). 28 U.S.C. § 455(a) (1994) (A

judge "shall disqualify himself [or herself] in any proceeding in which his [or her]

impartiality might reasonably be questioned."

The vote that followed, to approve Ordinance 588, was prejudiced by the 4 out of

5 City Commissioner's desire to keep the money received in payment on the contract.

And they are anxious to receive more. (NMSA 3-10-7). High Ridge Hinkle Joint

Venture v City of Albuquerque, 1994-NMCA 119 N.M. 40, 29 P.2d at 475 (A biased

councilor should have recused).

Zoning Issues:

Issues of the New Zoning Code:

The PUD law (ARTICLE XV, of the Truth or Consequences city code) is a new

code that has never been used before HSLD/HSMD applied for it. The PUD law was

probably written just for HSLD/HSMD, because City Manager Aguilera re-wrote the

code about the same time that the City signed the August, 2007 contract with

HSMD/HSLD.

Audette, et al v City of T or C et al 15
 The NM Court of Appeals decided that new policy does not need to receive the

deference of established policy. "… the County was implementing a new policy. Under

these circumstances, deference is not appropriate. See High Ridge Hinkle Joint Venture

v. City of Albuquerque, 119 N.M. 29, 42, 888 P.2d 475, 488 (Ct. App. 1994)" Therefore,

because this is a new zoning law, there is no history to provide the usual preponderance

of evidence. The City could not make a decision using a preponderance of evidence due

to the lack of a preponderance of evidence.

The only real evidence is that of the perspectives of the residents of Truth or

Consequences, who have spoken against the zoning. Unfortunately, their words have

been hidden by manipulations of the minutes by City Manager Aguilera.

It seems that politics are being played by City Manager Aguilera, in order to give

the developers everything that they want when they want it. "Quasi-judicial zoning matters

are not politics-as-usual as far as the municipal governing body is concerned."

ALBUQUERQUE COMMONS V. ALBUQUERQUE CITY COUNCIL, 2008-NMSC-

025, __ N.M. __, __ P.3d __¶33

This is the largest example of exclusionary zoning, PUD zoning and spot zoning

in the State of New Mexico, using new laws that were apparently written with the plans of

these particular developers in mind. The inexperience of the City Commissioners in

dealing with Florida developers places the City at a considerable disadvantage in the

process of fair and just zoning that meets the needs of all the residents of the City of Truth

or Consequences. “Because such ordinances cast broad discretion in Planning

Commissions, they must contain sufficient standards against which the zoning authority’s

opinion may be measured.” In American Jurisprudence, 2d pg 353, at the end of the first

paragraph. “[A]n important policy . . . is to construe the Rules of Appellate Procedure

Audette, et al v City of T or C et al 16
liberally so that appeals may be determined on their merits, Capco Acquisub, Inc. v. Greka

Energy Corp., 2007-NMCA-011, ¶ 16, 140 N.M. 920, 149 P.3d 1017” ALBA V.

PEOPLES ENERGY RESOURCES CORP., 2004-NMCA-084, 136 N.M. 79, 94 P.3d 822

¶55

Issues with Zoning Jurisdiction:

The land covered by Ordinance 588 is approximately 12 or 13 square miles while

the Comprehensive Plan, concerning that area around the airport, is much smaller, about

6 square miles. The City of Truth of Consequences does not have the jurisdiction

mentioned in NMSA 3-21-5 to zone land outside of the Comprehensive Plan. An

oversized plan was remanded to be scaled down on appeal in BLUFF NEIGHBORHOOD

ASS'N V. CITY OF ALBUQUERQUE, 2002-NMCA-075, 132 N.M. 433, W. 50 P.3d 182

¶3.

Ordinance 588 creates approximately 12 or 13 square miles of T-1 zoned land

with PUD zone overlay. The newly written PUD city code allows many kinds of

nuisance businesses in T-1 zones with a PUD overlay.

The lists of intended land uses, in the two Plans, do not compare well, either. The

Comprehensive Plan does not consider Planned Unit Development (PUD), racetracks,

other nuisance activities, or residential developments at all. The Comprehensive plan

considers light industrial and commercial zoning around the airport. The Comprehensive

Plan specifies nuisance abatement.

The new ordinance, according to American Jurisprudence, “must not offend the

requirement that zoning be done in accordance with a comprehensive plan.” Pg 369 ¶1

Audette, et al v City of T or C et al 17
Issues of Exclusionary Zoning:

In another challenge to the Constitutional rights of the citizens of Truth or

Consequences, the Planned Unit Development submittal (Sec 2-B) proposes "Not In My

Back Yard" zoning. Nowhere else in Truth or Consequences is T-1 zoning with a Planned

Unit Development zoning overlay allowed. The peculiar zoning situation of Ordinance

588 will allow HSMD/HSLD to bring businesses into our city limits that the citizens of

Truth or Consequences have deemed inappropriate to health, welfare, and quality of life.

Our Comprehensive Plan lists nuisance abatement as a goal, not exclusionary zoning to

move nuisance businesses somewhere else in the city.

Issues of Spot Zoning:

Size doesn't necessarily matter when it comes to determining if illegal spot zoning

has occurred. What matters is whether or not the zoning fits the Comprehensive Plan and

benefits the general public. (Truth or Consequences City Code Sec. 11-2-2-7) "Clawson

v. Harborcreek Township Zoning Hearing Bd., 304 A.2d 184, 187 (Pa. Commw. Ct. 1973)

(court examined adjacent area, as well as two miles surrounding area"), Lee v. District of

Columbia Zoning Comm'n, 411 A.2d 635, 641 (D.C. 1980) (finding that zoning decision is

spot zoning if inconsistent with comprehensive plan and benefits only owner of the land as

opposed to the general public)."

Ordinance 588 does not conform to the Comprehensive Plan. The residents of

Truth or Consequences perceive of the planned racetracks and sexually oriented businesses

as detrimental to their resources, property values, their health and their quality of life. This

is the largest case of spot zoning in the State of New Mexico.

Is it Legislative or Adjudicated Zoning?

Audette, et al v City of T or C et al 18
 At the last minute, the City Commissioners attempted to switch the process of

approval of the zoning change from an adjudicatory one to a legislative one. Just before

the Public Hearings of August 18, 2008 the City bundled its own zoning application

together with that of HSLD/HSMD.

There is a fundamental change proposed in overlaying the T-1 zone with PUDs.

Therefore Ordinance 588 should be adjudicated, not legislated. "Zoning law regarding

"fundamental change" relates to the necessity for notice and hearing on the items

delineated in the notice. Nesbit v. City of Albuquerque, 91 N.M. 455, 458, 575 P.2d 1340,

1343 (1977)". ALBUQUERQUE COMMONS PARTNERSHIP V. ALBUQUERQUE

CITY COUNCIL, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67 ¶41.

The zone changes that are proposed in Ordinance 588 have met with significant

public protest. The people of Truth or Consequences are not impressed with promises

from HSMD, the CEO of which is also the sole proprietor of HSLD. He has no experience

to back up his claims. During the ignored and censored Public Hearings, the people of

Truth or Consequences were specific and consistent in that they did want what

HSMD/HSLD offered, nor did they want to locate those businesses in that area. "The

burden is on the proponent of the zone change to establish that the change is justified."

ALBUQUERQUE COMMONS V. ALBUQUERQUE CITY COUNCIL, 2008-NMSC-

025, __ N.M. __, __ P.3d __¶34

The quasi-judicial duties of the City Commissioners on August 18, 2008 appeared

to be misinterpreted by the Commissioners to mean that the Commissioners would hear

only what they wanted to hear. Because the Special Meeting included Battershell

procedures, the appellants would like to point out that the Battershell procedures are so

appreciated because they are fair to all parties. When used appropriately, the Battershell

Audette, et al v City of T or C et al 19
procedures afford the public the right to speak their mind, whether the Mayor agrees with

what is said or not. "In administrative proceedings due process is flexible in nature and

may adhere to such requisite procedural protections as the particular situation demands."

State ex rel. Battershell v. City of Albuquerque, 108 N.M. 658, 662, 777 P.2d 386, 390 (Ct.

App. 1989)". CERRILLOS GRAVEL PRODUCTS, INC. V. S.F. BD. OF CO.

COMMISSIONERS, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932

The City and HSLD/HSMD are attempting to use PUDs in lieu of regular zoning.

Regular zoning reasonably covers large areas to be designated as "Light Industrial",

"Commercial", and "Residential". These are established policies with history, and history

makes them easily understood, easily followed and easily enforced.

According to American Jurisprudence 2d, pg 353 ¶3, PUDs should be small and

provide for flexible use between adjoining lots. “For example, a planned unit

development specifying that a day school aand a commercial establishment will have

joint use of a parking lot…” Therefore, in a 13 square mile development, regular zoning

should be used, and PUDs should be used as overlay zoning on adjoining lots.

Issues with Illusions:

The City Commissioners and staff have, on numerous occasions, cast the

developers in a role of "White Knights" who will "save" our local economy. The NM

Court of Appeals took issue with the problem of placing the burden of achieving a vision

upon one individual property owner in ALBUQUERQUE COMMONS PARTNERSHIP

V. ALBUQUERQUE CITY COUNCIL, 2006-NMCA-143, 140 N.M. 751, 149 P.3d

67 ¶34.

The ventures that the developers want to create in the PUD zone are risky at best,

and our rural location is too far from populations that would purchase at the level needed

Audette, et al v City of T or C et al 20
for profitability. There are basic rules of marketing to follow. One idea that is not a rule is

"If you will build it, they will come"; the appropriate rule is "Location, location, location".

That poor location makes the likelihood of success, at the level the developers predict,

improbable. The vision that the City Commissioners have for HSMD/HSLD as rescuers of

our economy is an unachievable expectation and the NM Court of Appeals warns against

such immature fantasies.

Additionally, large developments have historically shown weakness when it

comes to the cyclic nature of the rural economy. Developers depend upon heavy consumer

spending in order to continue to grow. However, financially literate people know better

than to indulge in conspicuous consumerism during economic downturns. Therefore,

developments usually become overextended and tend to become bankrupt. An example

would be Donald Trump, who applies for bankruptcy at every economic downturn.

It's been proven historically that it's possible to use Enron-style mathematics to

create an impressive illusion of jobs and booming economic opportunity in exchange for

pollution, wanton resource depletion, crime, sprawl, and the inevitable extreme economic

downturn. Yet, our pragmatic residents have repeatedly testified in numerous public

hearings that we'd rather have quality of life and take care of what we've got. We are not

swayed by illusion.

The local people are doing much more to strengthen and diversify the local

economy on their own in the last 2 year than the developers have in the 5 years they claim

to have been working on this project. Therefore, the White Knight role of HSLD/HSMD is

an illusion that is inappropriately used to market an unpopular development by the City

Commissioners and staff. If the public fell for it, we would later be filing charges of fraud,

Audette, et al v City of T or C et al 21
so it saves everyone a lot of time, money, and grief to put aside claims that the

development will be profitable for anyone except the Floridian developers.

Issues with the Due Process:

The Record of Appeal is missing key information, due to the way in which the

minutes were transcribed. The City Manager has the responsibility for the transcription of

the minutes. "the district court is at liberty to remand for the purpose of creating a record

that is adequate for review. See Martinez v. N.M. Tax. & Rev. Dep't, 117 N.M. 588, 589,

874 P.2d 796, 797 (Ct. App. 1994); Littlefield v. State ex rel. Tax. & Rev. Dep't., 114 N.M.

390, 394, 839 P.2d 134, 138 (Ct. App. 1992)" ” ALBA V. PEOPLES ENERGY

RESOURCES CORP., 2004-NMCA-084, 136 N.M. 79, 94 P.3d 822 ¶20

The concerns and suggestions that were voiced by the public in the public

hearings have disappeared from the public record. City Manager Aguilera disregarded the

public's First Amendment Rights in order to withhold the evidence that was before the City

of Truth or Consequences Planning and Zoning Commissioners and the City

Commissioners in Public Hearings from June through August, 2008.

The Planning and Zoning Commissioners were fully aware of the residency of the

speakers and the content of their testimony. That information is not reflected in the

Record on Appeal because City Manager Aguilera is responsible for the stenographer's

action of summarizing, instead of quoting, the testimonies of the Public Hearings held

from June 2008 through August 2008.

The concerns of the residents of Truth or Consequences were the reason that the

Planning and Zoning Commissioners denied the zoning application on July 14, 2008.

"Huning Castle Neighborhood Ass'n, 1998-NMCA-123, P 14 (sustaining decisions

Audette, et al v City of T or C et al 22
supported by substantial evidence or reasonable inferences {*760} therefrom)"

TAKHAR V. TAOS, 2004-NMCA-072, 135 N.M. 741, 93 P.3d 762 ¶ 19

City Manager Aguilera improperly verbally requested inclusion of the zoning

applications (Ordinance 588) in the agenda, rather than appropriate submission of a

written request from the applicants. City Manager Aguilera used hearsay from someone

who was not the applicant in lieu of a written appeal from the applicants. City Manager

Aguilera committed improprieties in the appeal process under both City of Truth or

Consequences Code, Sec. 15-9 (Appeals) and NMSA 3-21-8 (Zoning Appeals).

Ordinance 588 should not have been included in the August 18, 2008 agenda because no

written request was received from the applicants to do so. No appeal was filed.

Under 42 U.S.C. § 1983 (2000), the summaries the testimonies of the Public

Hearings, from June 2008 through August 2008, circumvent the due process of the

people of Truth or Consequences. The First Amendment also applies to the August 18,

2008 minutes, where a technical situation rendered most of the minutes "inaudible".

Under the First Amendment, removal of our words violates our right to substantive due

process.

Relief sought:

The appellants hereby request, because the proceedings have occurred outside the

bounds of due process, that the Court issue its order that all proceedings be remanded

back to the Truth or Consequences Planning and Zoning Commission pursuant to proper

and legal rules of procedure.

The appellants have good reason to believe that the same or similar behaviors on

the part of Planning and Zoning Commissioner Ruffini, City Manager Aguilera, 4 of the

Audette, et al v City of T or C et al 23
5 Commissioners (Lori Montgomery, Fred Torres, Jerry Stagner, Evelyn Renfro) and the

developers (particularly the organization HSMD/HSLD) will occur again.

We therefore request this Honorable Court to provide any other relief from

Commissioners, staff, and developers as may be just and proper and whatever the Court

deems appropriate.

Audette, et al v City of T or C et al 24
 AFFIDAVIT OF AFFIRMATION:

We hereby swear that this is true to the best of our knowledge.

Dated: November 24th, 2008

____________________________________

____________________________________

____________________________________

Kim Audette, Pro Se

618 Van Patten
Truth or Consequences, NM 87901
Telephone: (575) 740-1988

Ariel Dougherty, Pro Se

1580 Caballo Road
Truth or Consequences, NM 87901
Telephone: (575) 894-1844
Facsimile: (575) 894-1845

Sophie Peron, Pro Se

316 Joffre Alley
Truth or Consequences, NM 87901
Telephone: (575) 894-0528

Audette, et al v City of T or C et al 25
We certify that on November 24, 2008 copies of the foregoing Statement were mailed to:

Jaime Aguilera, City Manager

City of Truth or Consequences
505 Sims Street
Truth or Consequences, NM 87901
John J. Kelly, Esquire
Leslie M. Padilla, Esquire
Jay Rubin, Esquire Modrall Sperling
P.O. Drawer 151 Bank of America Center
Truth or Consequences, NM 87901 PO Box 2168,
Albuquerque, NM 87103-2168
Attorney for the City of Truth
Consequences Padilla:
Telephone: 505. 848. 1897
Telephone: 575. 894. 3031 Facsimile : 505. 848. 9710
Facsimile: 575. 894. 3282
Attorneys for Hot Springs Land Development &
Hot Springs Land Development, LLC/ Hot Springs Motorplex Development
Hot Springs Motorplex Development. LLC
Gregory B. Neal, C.E.O. Tom Mills, Esquire
3816 W. Linbaugh Avenue, Suite 210 Thomas C.H. Mills, P. A.
Tampa, FL 33618 PO Box 269
Santa Fe, New Mexico 87504-0269
Telephone: 813-961-8400
Telephone: 505. 660. 6603
REGISTERED AGENT:
Attorney for Hot Springs Land Development &
Gregory B Neal Hot Springs Motorplex Development
210 Main Street,
Truth or Consequences, NM 87901

_____________________________________________________________________
Kim Audette Ariel Dougherty Sophia Peron

Audette, et al v City of T or C et al 26