CITY OF ALBUQUERQUE

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					                                     CITY OF ALBUQUERQUE
                                            Albuquerque, New Mexico
                                                   Planning Department



      Mayor Martin J. Chávez


INTER-OFFICE MEMORANDUM                                                           February 27, 2007

TO:                Debbie O'Malley, President, City Council

FROM:              Richard Dineen, Planning Department Director

SUBJECT: AC-07-7 - Building Permit #0615410 / Project # 1004765 Hessel Yntema, agent for
Kenneth M. Robey, appeals the Planning Department’s issuance of a Building Permit, on all or a portion of
Lot(s) 1, 16, 17 – 28, Montevista Addition, zoned CCR – Nob Hill, and located at 3339 Central Avenue NE
(K-16)

Kenneth M. Robey, appeals the approval of building permit # 0615410, proposed construction of a retail
and residential mixed-use project located at 3339 Central Avenue NE, Legally described as Lot 28A, Block
6, Monte Vista Addition, zoned SU-2 / CCR Community Commercial /Residential Nob Hill Sector
Development Plan, together with off –street parking at 108 Wellesley Drive NE and 107 Tulane Drive
NE, Lots 1A and 16A, Block 6, Monte Vista Addition, zoned P-R Parking Reserve, Nob Hill Sector
Development Plan, zone map page K-16. Mr. Robey is represented by Hess Yntema, Oman and Yntema
P.A., as agent

STANDING

Mr. Robey resides at 121 Tulane Drive NE, which is 50 feet north of the property.



GROUNDS FOR APPEAL

Below is a list of the appellant’s arguments (in bold text) followed by responses from the City of
Albuquerque Code Enforcement division.

1.      The Building permit approval is not an amendment of a prior decision.
The Current building permit approval does not charge or in anyway modify the conditional use appeal
currently before the City Council.

The issue before the City Council primarily involves the reduction of on-site parking requirements for a
different set of building plans. The building plans before the City Council are different because the plans
include several bathrooms or powder rooms thereby affecting the on-site parking requirement. The
Debbie O’Malley
AC-07-7
February 27, 2007
Page 2 of 4

building plans currently approved do not include the bathroom or powder rooms and therefore may be
approved because the on-site parking issues associated with the powder rooms are not present.

In addition, under § 14-16-4 (B)(4) of the City’s Zone Code the current building permit can and should be
approved because the appeal of the on-street parking credit has been decided.

2.      The granting of the on-street parking credit was not arbitrary and capricious.
The issue of on-street parking credit for this Project has been previously litigated and determined by this
Land Use Hearing Officer (“LUHO”). Under the doctrine of collateral estoppel, or issue preclusion Mr.
Robey is precluded from re-litigating this issue.

The purpose of collateral estoppel is to aid in finality of judgment by preventing parties from endlessly re-
litigating the same issues under the guise of different causes of action, and collateral estoppel bars re-
litigation as between the parties or their privies if ultimate facts or issues are actually and necessarily decided
in prior suit. Adams v. United Steelworkers of America, 97 NM 369 640 P2d 475 (NM 1982).

In Mr. Robey’s previous appeal, (AC-06-26) the ultimate and in fact only issue for determination was the
City Traffic Engineer’s decision to grant on-street parking credits in connection with a nearly identical
building permit application. In that appeal, the LUHO determined that the traffic engineer met the
minimal standard set in the zoning code for the granting of 16 on-street parking spaces. Mr. Robey has
subsequently appealed that decision to State District Court.

In New Mexico, in order for a court or agency to apply collateral estoppel, the moving party must show
that 1) the party to be estopped was a party or privy to the prior proceeding1, 2) the cause of action in the
present case is different from the cause of action in the prior proceeding, 3) the issue was actually litigated
in the prior proceeding, and 4) the issue was necessarily determined in the prior proceeding. Rex Inc. v.
Manufactured Housing Committee, 134 NM 533, 536, 80 P.3d 470, 473 2003 NMCA. Applying the elements of
collateral estoppel to the facts of this case it is apparent that all of the elements are present. First, Mr.
Robey was the party in prior appeal and Mr. Robey is the party appellant in this appeal. Second, the cause
of action in this appeal involves a different building permit application.2 Third, the exact issue of on-street
parking credit was actually litigated because it was the only issue on appeal. Finally, the LUHO issued an
opinion denying the appeal and granting the on-street parking credit which was adopted by the City
Council in a 7-0 vote as the final decision.

Once a court determines that the elements for collateral estoppel have been met, it must then decide
whether the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in
the prior litigation. Rex Inc. v. Manufactured Housing Committee, at 537, 474. As the LUHO may recall, Mr.
Gallegos, the City’s Traffic Engineer, was extensively questioned by the LUHO and thoroughly cross-
examined by counsel for Mr. Robey in the first appeal. Mr. Robey was afforded a full and fair opportunity
to litigate the on-street parking credit in his prior appeal. In the aid of finality, this Hearing Officer should
invoke the doctrine of collateral estoppel and preclude Mr. Robey from re-litigating an issue that has
already been heard and decided.



1 This requirement has been modified if not deleted. Reeves v. Wimberly, 107 NM 231, 234 755 P.2d.
2 The first building permit was voided by City Council pursuant to AC-06-20.
Debbie O’Malley
AC-07-7
February 27, 2007
Page 3 of 4

3.      The appellant states that the off-street parking calculations are in error.
The property owner’s architect recalculated the net leasable square footage, eliminating three storage areas
from the retail calculations, creating general storage for residents, which would not be part of the retail
tenant occupancy, and for which there is not a parking requirement. Thus, the parking requirement is
applied accordingly.

4.      The appellant states that the residential parking requirements are in error.

The Appellants statement that the required parking is based on baths in the condominium units. This is
correct based on the plan review conducted by the zoning staff. The zoning review process does not
review mechanical plans referencing “roughed in’ for future use. Zoning reviews applicable utilization of
water closets with the said components, commode, tub / shower and lavatory to determine if area is
considered a water closet or designation of an area, which would then require additional parking
requirements. In addition, it is not uncommon to have a floor drain with a utility tub and utility sink
within a utility room.

The referenced reserved parking spaces, one of which was labeled incorrectly, will be required as retail
parking.

5.      The appellant states that the required motorcycle parking is inadequate.

Sufficient space is available within the parking structure for motorcycle parking. The required motorcycle
parking is three spaces; however, four spaces have been provided.

6.      The appellant states that the projects parking spaces still do not meet code requirements.

The parking spaces and aisle back up area meet the total specifications as required by the Zoning Code and
the Albuquerque Development Process Manual (DPM)

7.      The appellant states that the P-R lot garages require a conditional use permit.

The parking structure does not require a conditional use permit.

8.     The appellant states the P-R lot garages do not meet code landscaping/buffer
requirements.

Special buffer landscaping is required “where a non-residential zone is developed … for a non-residential
purpose and the site abuts a residential zone.” The garages in the P-R zone provide off-street parking for
residential use, which is a residential purpose.

 9.      The appellant states that the dumpster facility on the western P-R lot requires a
conditional use permit.

A conditional use is not required for a dumpster.
Debbie O’Malley
AC-07-7
February 27, 2007
Page 4 of 4

10.       The appellant states that the main building does not satisfy “step-back” requirements.

The guidelines in the Nob Hill Sector Development Plan for step back state that “…buildings of three
stories or higher … should step back … in order to reduce the impact of a particularly tall building on a
row of shorter buildings.” The step back guideline is suggested; using the non-mandatory word “should”,
and is intended for a relationship of new construction to shorter buildings, which do not exist within this
block.

11.      The appellant states that the main building has more stories than authorized.

The building is three stories in height, with an excavated parking structure below that does not constitute a
story. The building plans as submitted are within allowed height requirements.

12.      The appellant states that the projects average facade height is excessive.

The current plans address the height requirement of the north facade by averaging the facades from the
lowest to the highest and determining the mean height, which is consistent with the Nob Hill Moratorium
and the definition of height in the zoning code.



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