To briefly review the history of Volcano Cliffs Subdivision, a number of facts stand out. The record indicates that VCPOA and its predecessors attempted in good faith to work with the City in order to create a mechanism for initiating quality development in the Volcano Cliffs area. Prior to 1980 the City made numerous representations to the landowners concerning annexation and zoning according to the Volcano Cliffs Master Plan; the representations to the zoning were not honored. The number, type, and complexity of requirements that the City has wished to see fulfilled before development would be allowed to begin in Volcano Cliffs have dramatically increased with the passage of time and continue to increase to this present day.
Since the annexation in 1981 the property owners have received little or any benefit from the over $3,000,000 that they've paid in taxes to the City. These taxes have been a benefit to many other City constituents but not Volcano Cliffs property owners.At the time of annexation the commitment was made:
"At such time as the City annexes the various tracts of Volcano Cliffs, it will provide as it has always done the full range of urban services, including roads, sewage and water which can be financed through special assessments districts."
(quoted from a 1976 letter from then Mayor Harry Kinney.)
Some progress has been made and some property owners have been able to achieve their dream of building a home. A Special Assessment District was approved in 2005 and of the 268 lots at this writing 71 homes are in the process of construction or already occupied. The property owners in this area provided land for the right of way for Unser Blvd which benefits many Albuquerque Westside residents.

The City Council passed the Volcano Heights Sector Plan (VHSDP) on September 6, 2006. Because this plan was passed illegally the court remanded the plan to the City Council.

The Planning Department has been working with property owners to redo the plan and the result is the Volcano Cliffs Sector Development Plan (VCSDP). You can read the detail of this plan at:http://www.cabq.gov/planning/long-range/pdf/VolcanoCliffsLUPZ-RGB-032511final.pdf. This plan is a significant improvement over the remanded plan which discriminated against the individual property owners. The plan is going through the legal approval process with the City.
The VCPOA had filed several suits against the City to resolve the many problems with the VHSDP. One of these suits has been settled and the Zoning suit is expected to be settled with the approval of the VCSDP and progress on the first in a series of Special Assessment Districts.
Please see the presentations made at our annual meeting or contact the board members for the details of the issues addressed in the multiple lawsuits.

 

17 May 2007 update

As many of you know the City of Albuquerque passed the Volcano Heights Sector Plan September 6, 2006. This plan discriminates against individual property owners while significantly favoring large developers.
The plan requires individual property owners give up as much as 70% of their property with no compensation while imposing no such restriction on developers.
The plan also requires property owners to aggregate as much as 100 acres and require adequate facilities be in place before development is allowed. These requirements in fact make development near impossible…who would build adequate facilities until there is a demand for same?
The plan also takes peoples property outright but, as has been publicly stated the City does not expect to have to pay for the property taken for another 18 to 20 years even though these property owners can do nothing with their property except pay taxes on it.
The plan also seriously underestimates the value of the property
In response the Volcano Cliffs Property Owners Association, Inc. and some property owners have filed lawsuits against the City that could eventually cost the tax payers of Albuquerque over $250,000,000.
Mediation between the City and Property Owners has been scheduled for July 9, 2007

The following is an excerpt from one of the lawsuits:
General Allegations
1.      On or about January 2, 1981, Defendant annexed Units 2 through 27 of Volcano Cliffs Subdivisions ("Volcano Cliffs") via Council Bill No. F/S 0-92 and Ordinance 1-1981 and related documents and agreements.
2.      Volcano Cliffs Subdivision was fully authorized and received R-1 zoning and final plat approval and was annexed by the City of Albuquerque in 1981 as a fully platted and approved subdivision.  In the annexation agreements which are binding on the City and lot owners and their successors as contracts, the City agreed to, and stipulated that it would, provide utilities (water, sewer, roads) to the subdivision.  The agreements between the City and predecessors of Plaintiffs are contracts binding on the City.  Plaintiffs are successors in interest to the original developer or third party beneficiaries of said contracts.  Such utilities and roads were to be subject to a normal distribution of costs as established by a special assessment district (SAD).  The City has breached these agreements and denied a special assessment district and utilities to Plaintiffs in violation of the City’s contract. 
3.      The zoning in Volcano Cliffs Subdivision prior to the action appealed herein was R-1, or single family residential.  Plaintiffs’ properties in the subdivision were downzoned by the City of Albuquerque into several SU-2 zoning categories changing the zone map, density and allowable uses by the action challenged herein.
4.      Members of VCPOA, Plaintiffs and other lot owners in the Volcano Cliffs Subdivision relied upon the final plat approval, R-1 zoning and the contractual promises of the City in their purchase of their lots and in reliance thereon invested millions of dollars for purchase, development activities and payment of taxes to the City of Albuquerque.
5.      The City Council passed F/SR -04-145 in October 2004 which imposed a moratorium on development of Plaintiffs’ lots and initiated a Sector Planning process to be directed by staff of the City Council not by the City Planning Department.  Properties owned by Developers KB Homes (Vista Veija) Longford (The Trails) and Legacy Sustainable Development (La Cuentista) were exempted from the moratorium.
6.      As required by NMSA 1978, §3-7-5, Defendant has failed to provide municipal services within a reasonable time.
7.      Annexation was undertaken and approved with the understanding and agreement that municipal services were to be provided to Volcano Cliffs within a reasonable time.
8.       No municipal services of any kind have been provided to certain Units of Volcano Cliffs and lots therein.
9.       Plaintiffs have been unable to develop their properties and realize their investment and property expectations.
10.   Despite repeated requests and good faith efforts on the part of Plaintiffs and others, Defendant refuses to provide municipal services to certain Units of Volcano Cliffs and refuses to provide a special assessment district or similar mechanism to provide services to those Units of Volcano Cliffs and has further violated Plaintiffs rights by enacting the Volcano Heights Sector Plan.
11.  On June 5, 2006 the staff of the City Council applied for a Sector Plan Amendment for a Volcano Heights Sector Plan for the area encompassing Plaintiffs’ lots.  A copy of the application is attached as Exhibit “A”.
12.  The proposed sector plan submitted with the application did not propose rezoning from R-1 to SU-2 zoning.  The application for sector plan approval proposed a series of new zoning categories that were not in the zoning code.  The City Council did not apply for an amendment of the official zone map.  Amendments to the official zone map are governed by ZC §14-16-4-1 (A) (3) which provides: 
“Applications for amendment of the official zone map may be made only by the Mayor or his designated representative, or by a person with direct financial, contractual, or proprietary interest in the affected property.”
Sector plans are governed by ZC§14-16-4-1(A)(3) which also requires designation by the Mayor:  “Applications may be made only by a representative of the City or by a person with direct financial, contractual or proprietary interest in the property.”
13.  Neither the City Council nor its staff were designated by the Mayor as his representative to apply for a zone map amendment or for a new sector plan as required by ZC§14-16-4-1(A)(3) and §14-16-4-3(A)(3).
14.  On or about August 2, 2006, City Council staff submitted to the Environmental Planning Commission (hereinafter “EPC”) a proposed revised Volcano Heights Sector Plan which would amend the zone map for all of the plan area to SU-2 zones.  The City did not submit an application to amend the official zone map as required by ZC §14-16-4-1(A)(3).
15.  On August 3, 2006 the EPC deferred action on the Volcano Heights Sector Plan.  The City published notice on August 30, 2006 that the EPC would hold a hearing on the Sector Development Plan on September 21, 2006.
16.  On August 17, 2006 The Trails LLC (Longford) appealed the August 3, 2006 deferral by the EPC.  Council Services subsequently reached a “deal” with The Trails, LLC (Longford) and KB Homes and agreed to exempt their properties from the regulations of the VHSP.  The Trails’ appeal was subsequently “ignored” and not scheduled.  The Trails’ appeal fee was returned but there was no formal withdrawal of the appeal.   Other parties to the matter appealed who appeared before the EPC were never given notice of the appeal or of a withdrawal of the appeal or of any reason for its disappearance.  The disappearing appeal and the “deal” negotiated with The Trails LLC and Longford to exempt their property from the substantive provisions of the Volcano Heights Sector Plan demonstrates that this process was not based on planning principles, the standards for rezoning under state and city law, or on an honest effort to regulate land use for the Volcano Heights area, but was based on back room deals with power brokers to impose all burdens and restrictions of the new plan on Plaintiffs and no burdens on the developers.  The exemption for Longford and KB Homes was not justified in the record or by findings and is not supported by substantial evidence.
17.  Notwithstanding that the VHSP was scheduled for an EPC hearing on September 21, 2006, on September 6, 2006 the City Council approved R-06-86 adopting the Volcano Heights Sector Plan (hereafter “VHSP”), amending the official zone map and rezoning the plan area from R-1 to SU-2 zoning with several different SU-2 districts.   Plaintiffs’ properties were downzoned.  Developers KB Homes and Longford’s properties were not downzoned.
18.  R-06-86 and the VHSP determined the rights, duties and obligations for properties in the Volcano Cliffs area and on the basis of the legal standards of Res 270-1980 applying the legal standards therein to the properties affected.  The VHSP differentiated between the properties by creating different classes of SU-2 properties, including SU-2 for Suburban Residential, SU-2 for Executive Residential, SU-2 for Rural Residential, SU-2 for Village Center and SU-2 for Town Center.
19.   R-06-86 and the VHSP purported to apply Res. 270-1980 standards and policies and make factual findings that the zone changes met the factual requirements for a zone change and zone map amendment under Res. 270-1980.
20.  The rezoning and zone map amendments effected by R-06-86 and VHSP did not apply equally to similarly situated properties.  Some properties were upzoned to densities as high as 50 dwelling units per acre.  Plaintiffs’ properties were downzoned.  Plaintiffs’ properties were limited in height and required to dedicate by deed restriction 50% to 70% of their property to remain unused or as open space for the benefit of the public.  Identical properties owned by developers were exempted from these restrictions and/or they were allowed to develop 100% of their properties as commercial.
21.  The regulations in the SU-2 zone and in the sub zones under the VHSP are not uniform.
22.   R-06-86 was a quasi judicial action.
23.  R-06-86 and the VHSP are illegal because the City failed to follow governing state law and city ordinances and because the City acted arbitrarily and capriciously and without substantial evidence.
24.  The Mayor has ten (10) days after presentation of an ordinance or resolution to sign, take no action, or veto the City Council resolution.   Counsel is informed and believes R-06-86 was presented to the Mayor on or about September 21, 2006.  Res-06-086 became law on October 2, 2006 without the signature of the Mayor, although the statutory time for appeal begins on October 2, 2006, this action is filed within thirty (30) days of the adoption by the City Council on September 6, 2006 to avoid timeliness challenges should the City claim that the time period for appeal began with Council approval.  A copy of the City Council “Legislative File” showing an effective date of “not signed by Mayor” of October 2, 2006 and publication date of October 3, 2006 is attached as Exhibit “B.”  A copy of R-06-086 is not attached because it would exceed the page limit of LR2-119 and filing was refused by the court clerk.

This is what we were dealing with and what we plan to change.

On October 6, 2009 the political stars became realigned in favor of private property ownership.
As Volcano Cliffs property owners we should be encouraged by the results of the election and we are taking action now to take advantage of the situation to position our property for development.
The individual efforts of many of our property owners who made financial contributions, walked neighborhoods, made phone calls, paid for and installed signs and who live in District 5 and got out and voted, contributed to the election of Dan Lewis to the District 5 Council seat in which our property resides and RJ Berry’s election as Mayor of Albuquerque.  Individual property owners formed a measure finance committee so they could work together to campaign for candidates that believe in private property rights. No funds or other resources from the VCPOA, a non-profit corporation, were used in this effort.
In addition, other councilors were elected that positions the council to have a 5 to 4 posture in favor of private property ownership.
Your board of directors is working with the elected officials, city staff and an engineering firm to implement a sector plan that eliminates the restrictive zoning of the previous administration that devalued our property; and develop a series of Special Assessment Districts that will allow development of our property in some reasonable and orderly fashion subject to market trends.
Your continued assistance through volunteering, appearing at meetings and contributions will help us be successful in this effort.
Our annual meeting is scheduled for November 14, 2009 from 9:15Am to 11AM at the Taylor Ranch Community Center ( A block north of Montano Blvd on Taylor Ranch Rd)