Lawsuit Drops Bomb on Airport Expansion

Prologue

With apologies to Alfred Lord Tennyson, who wrote The Charge of the Light Brigade, we heard the charge on Tuesday, September 9, 2014, when the Town of Taos Council, Councilors Peralta and Gonzales, and Mayor Barrone voted to approve funding for phase one of the long-sought, since 1988, crosswind runway. Yet Councilors Hahn and Cantu voted “nay.”

But not so fast:

“Forward, the Town of Taos”

Was there a man dismay’d?

Not tho’ the councilor knew

Someone had blunder’d:

Theirs not to make reply,

Theirs not to reason why,

Theirs but to pass and say not why:

Into the valley of the Airport Rode the Mayor and Two Councilors.”

In what appears to be a finely crafted lawsuit, crying out for due process and public hearings, six citizens (writer John Nichols, landowner Dilia C. Martinez, Taos Pueblo’s Phillip H. Reyna and Ernest Concha, Deputy DA and property owner, Daniel Romero, and activist Bonnie Korman) have filed a well-crafted complaint in the Eighth Judicial Court, aimed at calling for a declaratory judgment, asking for a writ of mandamus, and an injunction to slow down and study the effects of construction for the “crosswind runway” on residents despite being given the green light per the record of decision filed with the EIS in 2012.

Ironically, despite being in the works for lo’ these many years, the Town of Taos has failed to ask Taos County for the Commission’s official blessing, per the land use code as well as planning and zoning regulations.

As shall be detailed below and in other media as the months and in all probability, the years to come, our readers will find the series of omissions nothing less than amazing.

Part I: The Environmental Impact Statement (EIS)

Here are paragraphs 21-27 of the complaint:

21. An Environmental Impact Statement (EIS) was done in stages starting in 1988, and completed in 2012.

22. The EIS noise analysis was done in 2000 and was not updated despite a subsequent update to the FAA’s Integrated Noise Model (INM).

23. The EIS did not address right-tum departures from Runway 12, over Pueblo land, although air traffic may take such a path.

24. The EIS states that “special consideration was given to the evaluation of the significance of noise impacts on noise-sensitive areas with the National Parks and historic sites . . . because ‘quiet’ is a recognized characteristic of these resources.”

25. The EIS did not consider impacts on the Rio Grande del Norte National Monument, established in March 2013, despite the National Monument being within the area impacted by the Airport Project.

26. The EIS noted that aviation easements would have to be purchased from affected property owners if the Airport Project was completed.

27. The Town elected to proceed with the Airport Project without purchasing aviation easements.

Part II: Gus Promised!

33. 49 USC 47107(a)(10) (Project grant application approval conditioned on assurances about airport operations) requires, inter alia:

written assurances, satisfactory to the Secretary, that . . . appropriate action, including the adoption of zoning laws, has been or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations.

34. The Town met the assurance requirement by letter dated March 21, 2001 from Gustavo “Gus” Cordova, Town Manager, to Joy Porter, FAA stating:

The Town of Taos, sponsor for the Taos Municipal Airport, recognizes and willingly accepts the requirement under section 51 l (a)(S) of the 1982 Airport Act to “coordinate with local jurisdictions to ensure that appropriate action, including the adoption of zoning laws, has or will be taken, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the Airport to activities and purposes compatible with normal Airport operations, including landing and takeoff or aircraft”, and the similar requirement under 49 U.S.C. 47107(a)(10) that “appropriate action, including the adoption of zoning laws, has or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations”

The Town of Taos will continue to undertake coordination with applicable zoning

Jurisdictions and where necessary, will also seek to transact directly with the nearby landowners to assure land use compatibility.

35. The Town has not fulfilled those assurances.

Part III: The County has jurisdiction
Paragraphs 36 through 60 list Taos County responsibilities and the failure to address, among other items of interest: zoning over private land surrounding Airport property, unacceptable residential uses in the area, failure to disclose proximate aviation easements, a lack of notification re: effects of airport runway, density limitations, failure to disclose hazards post EIS draft, higher risk of crash in adjacent areas, airport land use impacts, etc. The Town has not sought approval from the County nor has it coordinated restricted areas with the County nor has the County planned for restricted areas adjacent to airport.

Paragraphs 61 through 70 point out the lack of compliance by Town and County with applicable land use regs.

Part IV. If not now, when?

The EIS does not ensure the purposes and goals of the County’s LUR. And as the plaintiffs note, repeatedly, “The Airport Project has been in process since at least 1988. A comparatively short delay to allow for essential public processes would impose minimal to no injury on the Town and County. The public interest 1s indisputably served by allowing a public process to ensure compliance with the Land Use Regulations and thus adherence to there established purposes and goals of protecting the public welfare.” (Paragraphs 85 and 86)

In a damning declaration, plaintiffs claim in paragraph 95, “The County has abdicated its responsibility to enforce the Land Use Regulations on the Airport Project.”

And further, in paragraph 113, plaintiffs claim, “The EIS process did not substitute for the affected landowners’ substantive and procedural rights.”

Part V. Conclusion

Plaintiffs ask for “A declaratory Judgment finding that the Airport Project is subject to County zoning regulation and granting any appropriate supplementary relief; An injunction prohibiting the Town from proceeding with the Airport Project until obtaining all necessary approvals from the County; A writ of mandamus requiring Town to submit a completed land use application to the County; A writ of mandamus requiring County to review the Airport Project application under it’s the Land Use Regulations; An injunction prohibiting the County from approving the Airport Project application unless the affected area is properly planned and zoned…” (My bold)

And of course the Plaintiffs ask the court to award fees to pay attorneys Christopher Graeser and Matthew McQueen of Santa Fe. (As a student of the English language, I congratulate the attorneys on a singularly well-written complaint, eloquent in its language and straight forward in its arguments. Jargon has been banished from the prose.)

Epilogue

The general approach to land use regulations holds true in Taos: Taosenos believe it is better to beg for forgiveness than ask for permission. But the “Sizzling Six” seek “due process.” Agree or disagree but these pesky flies have stung the horse. The smart boys at Town Hall, apparently and allegedly, followed Gus’s lead: ignore la gente.

I’m not sure if the County Commissioners were asleep or knew not what they did not do. The most obvious requirements, notification, disclosure, abiding by the rules have been neglected.

We citizens, elected and appointed officials, and members of the press, have ignored the claims of activists and the rule of law and owe the “Sizzling Six,” worthy opponents everyone, a tip of the hat for reminding us of our duties.  Truly we sleepy ones are Pendejos.