Critics say new public comment rules favor developers

Dec. 12—To some regular attendees of city land-use hearings, a set of procedural rules approved by Santa Fe's City Council earlier this year seem to signal a broader trend of limiting public participation in city affairs.

"It makes it challenging to inspire people to speak out if they're getting shut down," said Adam Johnson, executive director of the Old Santa Fe Association. "If you have a limiting process, it can intimidate people. The process is already intimidating."

Johnson, who regularly speaks at public hearings, called the new rules "a huge concern" for the organization, which advocates for historic building preservation as well as other initiatives in the city. He said the city's process employs different standards for applicants, often developers, than it does for "community stakeholders" since the former are given the opportunity for lengthy presentations and responses.

"Land use cases affect all of us here, and the public should really have a say in this stuff," Johnson said. "There are plenty of reasons to allow the ceding of time and, especially, to hear from community stakeholders."

The rules, which were amended and approved unanimously by the mayor and City Council in January, included two new rules for public hearings. The first one says speakers cannot cede their allocated time to another speaker, while the second says that while "members of the public may pose hypothetical questions or use questions to make a point," they cannot cross-examine city officials or staff.

Bruce Throne and Steven Farber, a retired and practicing attorney respectively, referred to separate city public hearings they attended this year as "like a kangaroo court." The city's new rules on comment at public hearings, Throne said, "are developed to guarantee a certain outcome."

City Clerk Kristine Bustos-Mihelcic defended the new rules.

"The opportunity for public comment is very much still available," she wrote in an email.

Despite the rule barring ceding time, speakers can still arrange with the clerk's office "to speak in a specific order in order to coordinate a message to the governing body," she wrote.

Bustos-Mihelcic pointed out that the city's former rules did not address the question of ceding time, although it was permitted by the city Planning Commission during at least two recent public hearings on controversial land use cases in October and November.

"I don't recall it being a standard practice," Bustos-Mihelcic wrote.

Land-use lawyers lambast rules

For several months, Throne has been involved in an organized neighborhood opposition to a rezoning and proposed housing development case for land near Old Pecos Trail and Zia Road. The rezone designation, sought by Pierre Amestoy, is slated to come before the mayor and City Council for a decision on Dec. 14. The Planning Commission voted 4-3 in August to recommend approving the rezone.

Throne, a retired lawyer who has lived in Santa Fe for more than 40 years, says due process in a city land-use hearing includes the opportunity for members of the public to elicit facts in the case by questioning developers and city planning staff while both are under oath and on the record, and the new rules could violate those rights. Throne's own requests to cross-examine witnesses presented by the developer and the city at Planning Commission hearings this year have been denied by the city's lawyers.

"As you are not a party to the cases, you will not be allowed to question witnesses," Assistant City Attorney Patricia Feghali wrote in response to one of Throne's requests in November.

Although Throne will be attending the Dec. 14 hearing in question as a neighbor instead of as an applicant, he maintains that he and his neighbors deserve the same opportunity to argue their case before the mayor and council. He prepared about 45 pages of written comment to submit, which he fears will be difficult to summarize in only two or three minutes.

"I wasn't asking for three hours of cross-examination time," Throne said, "but it's the only way you can bring out things the applicant doesn't include in their presentation."

In an email, City Attorney Erin McSherry wrote to The New Mexican that the governing body and "parties to a matter" are permitted to cross-examine witnesses under the current procedural rules.

McSherry wrote that there have been requests but stated, "they have not identified anything — including any court cases or other legal authority — that gives them the right to do so.

"Also important to the question of due process is that there is no limit to the written materials that members of the public may submit," she wrote, "and they may reference their written comments during their oral comments. The members of the governing body can also ask followup questions."

The city attorney also pointed to an April decision from District Judge Kathleen McGarry Ellenwood that upheld a land-use decision by Santa Fe's governing body pertaining to the Zia Station development. The case is currently before the New Mexico Court of Appeals.

"It is important to again note that the members of the public were not parties to the application," Ellenwood wrote. "There is no question they are interested persons, but being a party provides more process than an interested person. ... The appellants have failed to show first, that they were denied the right to cross-examine witnesses, having never requested to do so, and second that they had a right to do so."

Farber, a practicing attorney and former city councilor, was also prevented from cross-examining witnesses during a public hearing on a land-use case earlier this year. Farber called the city's policy on cross-examination "a complete mischaracterization of the law on quasi-judicial proceedings.

"I think those new rules seem intended to limit public participation," he said. "I'm a firm believer that the council should hear from its constituents. Seems to me that the new rules go overboard in streamlining the process."

Farber cited former New Mexico Supreme Court Justice Richard Bosson's opinion in Albuquerque Commons v. Albuquerque City Council as precedent for his argument that the right to cross-examine is a fundamental part of due process in proceedings such as public hearings.

Bustos-Mihelcic wrote in an email that saving time during public hearings was "absolutely" not a consideration in drafting the new rules. They "provided clarification in the process," she wrote.

"This allows the governing body to hear directly from each constituent," she wrote.