By Elizabeth McCall, City Desk ABQ
Two Albuquerque city councilors are pushing to nix a requirement that could cost some neighborhood associations in legal fees if their appeals of commercial or residential developments are denied.
Councilors Nichole Rogers and Renée Grout are sponsoring a measure that would amend a controversial measure the City Council passed during a Jan. 6 meeting — which made multiple changes to the city’s Integrated Development Ordinance (IDO).
“This is in direct response to my constituents who were upset about several things in the original bill,” Rogers told City Desk ABQ. “Specifically about how whoever the losing party is has to pay the other party’s legal fees. I heard loud and clear from my neighborhoods that that would be a detriment to them.”
The city’s IDO outlines zoning and development rules for how city land can be used. The approved changes to the IDO included a requirement that if a development application is approved and the appeal is denied, the party who appealed is responsible for paying legal fees for both parties. If a development application is denied, then all parties would pay their own costs.
Rogers and Grouts’ measure would remove the requirement because of how it “disproportionately affected neighborhood associations.” Councilors approved the measure during a Land Use, Planning and Zoning Committee meeting on Wednesday.
“That [requirement] would stop them from being able to put it in an appeal because they don’t have that amount of funding…this is just amending it so that everybody takes care of their own legal fees,” Rogers said.
A handful of residents urged councilors’ support of the effort during the committee meeting — including attorney Leslie Padilla, who said there are very few laws requiring “only one side of an appeal to pay the cost of the other side if they lose the appeal.”
“Requiring the appellant to pay the attorney’s fees of the applicant when the appellant loses, would dissuade any challenge in the first place, not just frivolous appeals, it discourages all appeals,” Padilla said. “Most individuals and neighborhood associations have very little or no ability to pay for their own attorneys, much less the legal fees of the other side. I think this provision, if allowed to stand, will have the effect of allowing land use decisions, however badly reasoned or poorly decided, to go unchallenged.”
Another resident, Jordon McConnell, spoke against the legislation and told councilors that it does not help the housing crisis. McConnell said that “appeals shouldn’t be a free tool for blocking housing.”
“A fair appeals process allows communities to have a voice, but this bill removes accountability, shifting the cost of failed appeals onto home builders, renters and taxpayers, instead of those who chose to file them,” McConnell said. “That’s not fairness, It’s obstruction…Many Burqueños, myself included, are rent-burdened, spending over a third of our income to keep a roof over our heads. Yet this proposal asks us, those struggling to afford housing, to bear the cost of appeals that delay or block homes.”
Grout said not all appeals have to do with housing, but she knows that it can be frustrating for developers to get through the process. She said she thinks the council needs to be “more thoughtful when we consider appeals and really think about both sides.”
Council President Brook Bassan was the only councilor to vote against the measure because of the difference between an appeal on an approved application and a denied application. Bassan said she agreed with how the original bill was written.
“If by the end of that process, there is an approval and then there’s an appeal, I do think that at some point in the judicial system, sometimes it is required that if you are on the losing end, you have to pay attorney’s fees,” Bassan said. “To me, that is the differentiating factor that I think is very significant: the difference between an approved or a denied land use matter.”
The full City Council is expected to consider the measure during its March 17 meeting. If approved, each party would be responsible for their own legal fees, regardless of whether the development application is denied or approved.