this post presents the content of the FIRST LETTER-DOCUMENT COMMUNICATION FROM DONALD CLAYTON REGARDING THE APRIL 13, 2016, landmarks and urban conservation commission (LUCC) HEARING
Subject: APRIL 13, 2016 LUCC HEARING PROJECT #1010796 SIGNS
April 20, 2016
Landmarks and Urban Conservation
Current Planning Division
City of Albuquerque
600 2nd Street – 3rd Floor
Albuquerque, NM 87102
Project Number: 1010796
Case Number: 16-LUCC 50013
Inclusion in file:
I request that you enclose a hard-copy copy of this communication in the official publicly accessible hearing file for this project and case.
Since I do not believe that your office provides publicly accessible computers by which the images, documents, and attachments herein enclosed may be reasonably reviewed by the public, I specifically request that the images and documents linked, and referenced, be printed out and included in the official publicly accessible hearing file for this project and case.
If you have reason or cause for not complying with the above stated request, I ask that you write me, informing me of the reason, so that I can do what is necessary to have this entire document be properly made a part of the permanent file.
An email copy of this letter document is being provided to: Alfredo Salas, Secretary to the LUCC; Russell Brito, Manager of Urban Design and Development; Daniel Dietz, Assistant City Attorney for Real Estate / Land Use; Christopher Tebo, Assistant City Attorney for Real Estate / Land Use, and Blake Whitcomb, Assistant City Attorney for Real Estate and Land Use.
Notification to the Commission:
I request that you provide me with an email address for each named member of the Landmarks and Urban Conservation Commission (hereinafter: “LUCC”). The immediate reason for this timely request is that each member of the LUCC can be informed of this, and other, timely and pertinent documents pertaining to the project and hearing.
[Note: Direct communication to the Commission would normally be a wrongful ex parte communication. The purpose of this paragraph was to encourage LUCC staff to communicate to the LUCC. However, “A request for status of the proceeding” is not a wrongful ex parte communication. LUCC staff failed to provide the email addresses requested.]
Reference is made, and by such reference inclusion is stated, to Albuquerque Code of Ordinances, Article 12: Landmarks and Urban Conservation (hereinafter: “LUC Ordinance”); to Rules of Procedure and Conduct – Landmarks and Urban Conservation Commission (hereinafter: “RPC”); and to a City of Albuquerque Planning Department document entitled: Sign Posting Agreement.
Cause of communication:
This letter document is written pursuant to a visit I had with Alfredo Salas, Secretary to the Commission (See: RPC A. 8.) on April 18, 2016. The purpose of that visit was to review the contents of the above referenced file (hereinafter: “file”), and to make inquiry regarding issues of signage pertinent to, and conditional to, the April 13, 2016, LUCC Hearing, and the continuation of the Hearing scheduled (deferred) for May 11, 2016 (See: RPC 10. d) 1) 2). [Reference is also made to Special Meetings and/or Study Sessions, made, or which could be made, pursuant to the cause and the application. (See: RPC A. 3., 5.)]
During that visit I had occasion to notice that documents, including original documents, required to be included in the file were missing. Included among those was the Sign Posting Agreement(s). I brought this fact to the attention of Mr. Salas.
I also referenced the fact that it was a matter of traditional custom, and good practice, for there to be one or more photographs of the public notice signs posted for the Hearing, to be included in Hearing files. I pointed out to Mr. Salas that such photographs are usually taken in the field by staff. I asked Mr. Salas if there were any such photographs available for review.
I further asked Mr. Salas about who was responsible for issuing signs, and issuing any instructions (See: § 14-12-10 (B)).
To all the above questions Mr. Salas referred me to Ms. Hennessy, stating that she was responsible for issuing the signs, issuing instructions if any, and determining which documents, among those submitted, were available in the file.
Due to the perceived importance and seriousness of the issues at hand, this letter document is prepared pursuant to the advice and instructions of Mr. Salas.
Representations of fact:
The following information constitutes the information and belief, of me, Donald Clayton, a concerned citizen, and a resident of 1— Silver Avenue SW, in the City Of Albuquerque, New Mexico. I do not represent, nor am I a member of any group, government, organization, business or competing business, that is a matter of record in this matter. My telephone number is 505 / 842-1—, and my email address is firstname.lastname@example.org.
On April 13, 2016, I attended what was advertised as a Public Hearing of the LUCC regarding proposed Roadwork on Central Avenue (singular) (See: Albuquerque Journal, March 29, 2016, Section C, page C6, 2nd item – first column). The occurrence was scheduled to commence at 3:00 PM.
Pursuant to the provisions of City of Albuquerque City Council Resolution Bill R-16-24, I had very good reason to be concerned about the “roadwork” on Central Avenue, between the first alley east of Broadway, and Locust Street. It was apparently very clear by the Council Resolution that any decision by the LUCC could have a very major and substantial impact on proposed Albuquerque Rapid Transit (hereinafter: ART) Project construction on portions of Central Avenue near my residential property, located fairly close to Old Town.
On April 18, 2016, in late morning, I visited the area described as being the subject matter of the advertised Hearing. I noticed that Application for a Certificate of Appropriateness signs were located at three (3) sites on Central Avenue. I noticed both the locations and condition of the signs. I noticed that there were two different sets of signs, three (3) signs in each set. I noticed that one set of signs had the date of March 29th, and that the second set had the date of March 30th.
I noticed that apparently a sign from each set had been attached back-to-back at each site.I noticed that someone had apparently used white spray paint to mark on the rough gravel a circle to apparently mark where the signs were to be placed, before the sign placement.
At approximately 10:30 AM, on March 18, 2016, I (Donald Clayton) took photographs of the signs and their placement. I note this information pursuant to LUCC requirements for entry into the record.
Three of the photographs are attached below as a matter of record. Since LUCC requirements require a statement of location regarding photographic evidence, I present the following:
Photograph #1: Sign location #1 is in the middle of Central Avenue just west of Arno, across from a building located at 316 Central, on the south side of Central Avenue, apparently referenced in HDR plans as “right” Central Avenue.
Photograph #2: Sign location #2 is in the middle of Central Avenue just west of Walter, nearly across from a building located at 523½ Central, on the north side of Central Avenue, apparently referenced in HDR plans as “left” Central Avenue.
Photograph #3: Sign location #3 is in the middle of Central Avenue just west of Locust, across from the air conditioning vent on the west wing of the EconoLodge building located at 817 Central, on the north side of Central Avenue, apparently referenced in HDR plans as “left” Central Avenue.
In the course of taking the above referenced photographs it became obvious that there was a considerable distance between the posted signs and the public sidewalk. The distance was so great that it was impossible to read the text of the signs, even at location #2, the closest sign, and the sign in the best condition. By waiting a considerable period of time to allow a break in the traffic, and with the aid of a waiting bus passenger who was willing to watch for the frequent busses and cars, I was able to measure the distance from the sidewalk to the sign. The distance was 27′.
The traffic was too great, and too frequent, to be able to reasonably access the other sign locations to determine the distance.I returned during the evening of April 19, 2016, with a neighbor experienced in public road measurement. Taking extreme care to avoid the traffic at that time, after more than an hour of effort, we were able to determine the distances from the public sidewalk to the center of street, rough landscape gravel, sign locations. We used a K&E professional fiberglass 100′ engineering tape measure, properly anchored and stretched. I believe that the distances involved can be confirmed with an accurate use of precise coordinates as are available on Google Maps. Another source for the relevant distance information are the professional surveys undertaken pursuant to the ART Project.
On April 19, 2016, the signs had been removed, but the white circles, and the impression left by the removal of the metal sign post, enabled fairly precise measurements. The distances found between the sign locations and the nearest edge of the adjacent sidewalk are as follows: Sign location #1 – Arno – 38′ left, 38′ right; Sign location #2 – Walter – 29′ left, 27′ right; Sign location #3 – Locust – 43½’ left, 49′ right.
Citation to authority:
§ 14-12-10 (B) provides the legal basis for the proper posting of signs prior to a lawful LUCC Public Hearing. The Sign Posting Agreement (the document link is HERE) further defines the requirements for sign location and stability. Further clarity is established by the City of Albuquerque Zoning Code § 14-16-1-4 Interpretation (A) General. The general principal being that the most restrictive, in this case effective, rule or regulation is the one to be applied.
The rule, clearly stated, is, “The sign shall be conspicuously located. It shall be located within twenty feet of the public sidewalk.” (See: 1. A.). Further, “a full plywood backing works best to keep the sign in place, especially during high winds.” (See: 3. A.).
Finally, the fact that a LUCC Hearing is dependent upon “all notification requirements” is firmly established in RPC A. 3.
The intent of the notification requirements is clear. The idea is that the general public is fairly and reasonably notified of a Public Hearing. The posting of proper readable signs, in a proper location, is an integral part of the process. In this case, for this LUCC case, this was not done.
The deficiencies are clear. It is plain that the type of the type and size on the sign cannot be safely read from a vehicle navigating traffic and cross-traffic on a four lane roadway with posted highway speeds of 30 MPH.
So, if the signs are not designed to be read from the roadway, the question becomes – how can they be reasonably read from the sidewalk? The rule is that a person can come within 5′ of the sign (See: 1. C.). To do so safely is all but impossible. There is little question of the fact that two busy 12′ wide traffic lanes, and in some instances another 12′ wide parking lane, constitute a “barrier.” Some of the signs have access obstructed by trees. By no stretch of the imagination is a single sign ADA accessible.
The defects continue, as is evidenced by the condition of the signs. It may not have been wind that wilted the signs, but the effect of rain on cardboard is much the same. The greatest rainfall for the posting period was April 3 – April 10, probably the period when the signs became totally unreadable.
The apparent casualness, if not indifference, to the issue of the proper posting of signs for this LUCC Hearing is evident by the fact that neither of the two (2) Sign Posting Agreements could be found in the file. It is further illustrated by the fact that apparently no member of the LUCC staff actually went out and inspected the site, as there are no photographs.
The issue of who is at fault regarding this wholly insufficient sign posting is not really the issue. The issue is that the signs were not properly posted, and the LUCC Public Hearing, by law, should not have been held.
Argument could be made that there is a provision for sanctions. Citation is contained on the Sign Posting Agreement and numerous places elsewhere. The sanction is voluntary to the LUCC, “Failure to maintain the signs during this entire period may be cause for deferral or denial of the application.” The reality is that the Hearing has been deferred, but the Public Notice defect has not been corrected. Further, a denial of the application would be to defeat the entire ART Project on which success of the application depends. It is improbable that appointees of the Mayor would vote to deny the application for the Mayor’s project based on what the City may see as “a technicality.”
Government should not be seen, or act, as if it were the enemy of the people. Hoops, hurdles, barriers, and technicalities should not be used, or allowed, by government to obfuscate and make difficult what should be an open, fair, and transparent process.
My request is that this situation does not become cause for the defeat of the entire ART Project. My belief is that a properly conducted LUCC Hearing is in both the City’s and the Public’s best interest. A fair and proper hearing begins with a proper application, and the good faith proper posting of signs.
I ask that the LUCC Hearing process for this cause and this case be reset, the case should be begun again, from the beginning, obviously starting with a new application.
Law, justice, and propriety demand nothing less.
I would be willing to meet with anyone, at any time, to discuss this very important matter.
P.S. The fourth Attachment is a map showing the sign locations herein discussed, in red.
LUCC sign set #1 improperly placed away from sidewalk.
LUCC Sign set #2 improperly placed far away from sidewalk.
LUCC Sign set #3 improperly placed away from sidewalk.
Land Use Map with improper sign locations added (in red).