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The Gauntlet

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letters, opinions, editorials

re: sculpture at the entrance of the Homestead Village Shopping Center

Apparently there are people, numbers and identities unknown, who have taken it upon themselves to complain to various merchants at the Homestead Village Shopping Center about the presence of the “devil” at the entrance. People! It is not the devil; it is an artistic creation of a shaman, long revered among various cultures, including Native Americans. 

Gene McClain, the artist who created this piece, is constantly asked by various merchants why he placed the “devil” there. Clerks ask him what they are supposed to tell “all” their customers who are complaining. One merchant reported that there were eight people who had complained. (But who’s counting?) This person also reported that a number of people had complained that Gene’s work is “gruesome and scares children.”

What is going on here? As an aside, anyone who knows Gene knows that there is not a mean bone in his body. I don’t know of anyone who has given more freely of his time and talents to the various local groups that help the needy or the local community. I know Gene, and I know this hurts him.

I would suggest if you have a problem with his “devil,” look up “shaman” in the dictionary. If you have a problem with his artwork, talk to him. The implications of complaining to a merchant are insidious. This form of attempted censorship by pressure has no place here or anywhere and should be of concern to anyone who wishes to express himself.

—Barry McCormick

re: is it time to change priorities?

Some Rio Rancho residents have expressed concerns that while the paved roads on which their homes sit are receiving little to no maintenance, residents who live on dirt roads have their roads maintained on a regular basis. Rio Rancho city officials brush aside these concerns. So, let’s take a closer look at the issue.

According to an e-mail from Rio Rancho City Manager James Jimenez, the only dirt roads that exist in Rio Rancho are those related to antiquated platting and which exist outside major residential developments, such as Enchanted Hills, Northern Meadows, Cabezon, Loma Colorado, all Rivers Edge I, II, and III, North Hills, etc. Mr. Jimenez further states that, with the exception of minor scattered lot splits (done by summary), all of the housing on unpaved roads was built on the original AMREP plats. In 1981, when Rio Rancho was incorporated, and at subsequent annexations, the city assumed responsibility for roads platted by AMREP and accepted by Sandoval County. Mr. Jimenez adds that the City of Rio Rancho now has full responsibility for the maintenance of all dirt roads within the city’s boundaries, and by ordinance, dirt roads are not permitted in any future major subdivision that is to be built in the city, but homes can still be built on lots that sit on existing dirt (unimproved) roads.

At the April 25, 2011 budget hearing, Rio Rancho Mayor Tom Swisstack asked the city manager if people who live on dirt roads paid the same taxes as people who live on paved roads. The city manager replied “Yes.”

But according to the Sandoval County Assessor’s office, once a residential road is paved, the value of that property increases, hence the property taxes on those properties increase. So, homeowners in Rio Rancho who live on paved roads are actually paying higher taxes per square foot for their homes than those homeowners who live on dirt roads, the result of a higher assessed valuation.

There is no question that residents who live on dirt roads make many demands on the city for higher levels of road maintenance than do residents who live on paved roads. Many of the requests are because of poor road conditions. Others are by homeowners wishing to sell their homes, but finding that the condition of their road puts off potential buyers or has an adverse affect on their selling price. What is not taken into consideration is that homeowners living on paved roads have paid for that paving, which was reflected in the purchase price of their home.

It is not that homeowners living on paved roads oppose the city maintaining dirt roads, especially for safety. But is the amount of money being spent on the dirt roads excessive, and could some of those monies be redirected to paved roads? Citizens who live on paved roads adjacent to or near dirt roads see that every two weeks the city is on those dirt roads—watering, grading, and applying millings or other surface toppings. Meanwhile, their paved roads get literally no attention and are falling apart.

Now, let’s examine the facts obtained via a public records request from the City of Rio Rancho regarding costs associated with maintenance of dirt roads:

  1. 1. The City of Rio Rancho currently maintains 475 miles of paved roads and 144 miles of dirt (or unimproved) roads.
  2. The city has a road grading schedule, of which dirt roads receive maintenance and on which days of the week. This schedule appears to be repeated every 10 to 14 days.
  3. There does not appear to be a standard, which the city uses to determine how bad the condition of a dirt road has to be to justify an all-out maintenance effort.  Does washboarding require all-out road grading, or is it a condition that can be addressed by drivers simply driving carefully? One thing is clear: Homeowners living on dirt roads frequently contact city officials, demanding road maintenance, and shortly thereafter, the maintenance is performed.
  4. All work is performed by city employees. No grading work is contracted out, but the city rents a substantial amount of equipment to perform the work.
  5. According to a document obtained from the city dated June, 12, 2008, the city was then spending $771, 840/year to maintain dirt roadways. That document indicated that the city had only 120 miles of dirt roadway, and the cost of $771,840/year was for 120 miles.
  6. According to that document, the city assigned seven employees—one foreman, three truck drivers, and three equipment operators—to maintain the dirt roads.
  7. That same document showed that the city equipped the crews with one pick-up truck, three motor graders, and three, 4,000-gallon water trucks.
  8. According to another undated document obtained from the city, related to costs for maintaining the dirt (unimproved) roads:

    a. The cost for the heavy equipment operator with benefits: $20.50/hour.

    b. The cost for the truck driver with benefits: $18.00/hour.
  9. This same document showed that the crew makes six passes on each road with the grader and uses approximately three loads of water (4,000 gallons/load), 12,000 gallons in total to water down each dirt road during the grading operation.
  10. Invoices from August 2010 show that the city was renting a 2,000-gallon water truck for maintenance of the dirt roads. The cost: $333.00/day or $2,985.00/four week period. Fuel and driver were furnished by the city.

Given that most of the cost data obtained from the city is one to three years old, one can assume with a high level of certainty that the city is currently spending somewhere between $800,000 - $1,000,000/year to maintain somewhere between 120–144 miles of dirt roads. The question now is: How much money is the City of Rio Rancho spending to maintain paved roads in residential neighborhoods?

While no one denies the need to maintain the dirt roads, is the city allocating a disproportional amount of money for maintenance of the dirt roads? Wouldn’t it be more fiscally responsible, especially during this very austere period, for the city to change its protocol and instead of dispatching crews to grade and maintain these dirt roads as a matter of routine, to have the foreman inspect the roads and then determine if they require maintenance or if it can be “put-off”? Perhaps after a period, like six months, the issue could be revisited, and surplus money not spent on maintenance of dirt roads could be reallocated to maintaining the paved roads in residential areas.

What say you, Mr. Jimenez?

—Harry Gordon, Rio Rancho

re: “Tortious interference?”: An open letter to Rio Rancho Mayor Tom Swisstack and the Rio Rancho City Council

Every day, we hear from various sources, including our own Rio Rancho leadership, that attracting small business to a community is good for the community in terms of employment and economic growth. So, why has the Rio Rancho mayor and city council gone out of their way to effectively cause two, long-established local small businesses to close up shop?

Recently the city council passed an ordinance to stop the sale of dogs and cats in Rio Rancho. Not only will this ordinance put two small pet shops in the city out of business at the end of a four-year “grace period,” but the way the ordinance is written, the two stores are barred from taking in more business or enlarging their physical space.

Has our city leadership ever heard of the legal term: “tortious Interference?” Tortious interference, also known as ”intentional interference” in the common law of tort, occurs when a person, or in this case, a government entity, intentionally damages a person’s or business’s contractual or other business relationships. This tort is broadly divided into two categories: one specific to contractual relationships (irrespective of whether they involve business) and the other specific to business relationships or activities (irrespective of whether they involve a contract).

Tortious interference with business relationships (as it may be in this case) occurs when the tortfeasor (the City of Rio Rancho) acts to prevent the two pet storeowners from establishing or maintaining business relationships. This tort may occur when a first party’s conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred (in this case, expanding the two businesses from selling dogs and cats to new customers or taking on new breeds to sell).

Tortious interference of business also applies when false claims and accusations are made against a business or an individual’s reputation in order to drive business away. At the April 27, 2011 city council meeting, one of the pet storeowners addressed the council during the public forum on the ban to sell dogs and cats. Immediately after, one city councilor summoned the pet storeowner back to the podium and began “cross-examining” her. Did this act raise a question about the storeowner’s integrity and how she conducted her business? Is it common practice to call back citizens who come before the city council during the public forum to publicly question what they said? To the detriment of this business owner, this “questioning” was done at a public meeting attended by various citizens and broadcast over the local cable channel and on the city’s Web site.

Here are three questions the city leadership might want to ask themselves:

  1. Does the passage of this ordinance, which effectively closes down two legal operating businesses, open up the possibility that the affected parties have a legitimate cause of action to sue the city for significant monetary damages? Is the council denying the owners the rights guaranteed them under the Fifth Amendment of the U.S. Constitution? The Fifth Amendment, which is part of the Bill of Rights, protects all citizens against abuse of government authority in a legal procedure. The last part of that amendment states: ”nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The law of torts has four basic objectives. The fourth objective is to vindicate legal rights and interests that have been compromised, diminished, or emasculated. 
  2. By wording the ordinance to prohibit these two shop owners from expanding the base of their business during the four year “grace period,” has the council denied these business owners rights guaranteed them under the Fifth Amendment of the U.S. Constitution?
  3. If these affected parties pursue legal recourse and win, could the city be held liable for significant monetary damages?

Similar cases have been heard by courts throughout the United States, including the U.S. Supreme Court. In all too many instances, the courts have ruled in favor of the plaintiffs because they considered the actions of a municipality as “tortious interference.” Did the mayor and city councilors who voted in favor of this ordinance fail to take reasonable and prudent action by seeking a second opinion if this ordinance created an act of tortious interference? Remember, there is NO State of New Mexico law that prohibits the opening of a business that sells dogs and cats.

As this ordinance is currently written, these two business owners have little to no opportunity
to sell their businesses because pet sales constitute such a significant portion of their income. In addition, they are prohibited from expanding their respective businesses during the four year “grace period.” Remember, these are two, long-established businesses in Rio Rancho. They have been granted business licenses to operate within the city, and they have done so legally for many years. Has either of these two businesses been charged or proven to be cruel to the animals they sell, or have they done anything illegal that warrants their closing?

Wouldn’t it be ironic if one of the businesses relocated in the Wal-Mart Supercenter in Bernalillo? Where would the bulk of their business come from? Probably from across NM 528 in Rio Rancho. Now, how much sense does that make, especially in a city that says it wants businesses to come in and open? A city that says it is desperate to increase its gross receipts tax base? It’s time for the City of Rio Rancho to “walk the talk” on small business development.   

—Harry Gordon,Rio Rancho

re: Humberto Macias, chief, Placitas Volunteer Fire Brigade, Inc.

Dear Chief Macias,

In April, I was pet sitting for Elvis, a three-legged dog who had recently hurt his spine. He was supposed to be on the front portal of his home. When I arrived there, he was gone. I eventually found him several yards away, down a very steep arroyo. I called my husband and requested that he come with a tarp and see if we could carry him up the hillside. As Elvis weighs 100 pounds and is crippled, we decided that we could not do it alone. I then called the  Sandoval County nonemergency number, and they connected me with animal control. They said that they could not assist with this. I then drove down to the fire station on Petroglyph Trail. The officers there said that they would be happy to help, but as we were departing, they got an emergency call and had to respond. They then contacted the Placitas Volunteer Fire Brigade, who met me at their station.

I wish to thank Tom Hanson, Jim Collinson, Jill and Jim Lolli, and  the two neighbors who helped in carrying Elvis out of the arroyo.

I know that fire departments have helped to get cats out of trees, but I was embarrassed to call them for a dog that should not have wandered off. Their response and help was terrific.

Afterward, I got follow through calls from Gary Miles of Placitas Animal Rescue, Sandoval County Animal Control, and the Petroglyph Trails Fire Station. It is nice to be a part of a community that cares for all its members, human and nonhuman alike.

—Annie Gross and Karen Jenkins (Owner of Elvis)





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