SO NOW WHAT?

Passersby likely noticed the start of substantial excavation work on the proposed concrete batch plant (CBP) site in April 2023.  After a few weeks, the work was completed, and activity at the proposed site stopped.   Although this work occurred before the issuance of the air quality permit, New Mexico 12^th Judicial District Court Judge John Sugg ruled that this excavation work was not CBP construction work; therefore, no air quality permit was required for the owner to excavate his property. 

 So what does this mean?  The basis of the complaints filed by participants in the Alto CEP are that the construction and operation of a concrete batch plant at the proposed location constitutes a nuisance.  Furthermore, it is claimed that deed restrictions in place for the CBP site property and surrounding properties would prohibit any activities that would create a nuisance for the adjacent properties. The immediately adjacent properties are also subject to the same restrictions for noise, hours of operation, and additional criteria.  The deed restrictions and their implications are summarized in the December 2021 initial filing, which can be read here. 

However, the owner of the proposed CBP (and the defendant in these complaints) has filed for summary judgment, claiming the deed restrictions are vague and “unenforceable.”  The argument has also been made that the deed restrictions are no longer in force due to the multiple sales of the CBP lot and the surrounding properties, which were under the initial purview of the deed restrictions. 

Admittedly the numerous sales of the proposed CBP lot and the surrounding properties have created a trail full of twists and turns, but also a trail of traceability.  Exhibits A-D of Plaintiff’s Motion for Preliminary Injunction (pp. 17-23) provide that trail and can be read here. The full rationale behind these deed restrictions set forth by the original owners of these tracts can be read in Exhibit E (pp. 24-26) of the same document.

Documentation of the defendant’s knowledge of the deed restrictions and unsuccessful attempts to change them unilaterally are well documented in the Plaintiff’s filing of Findings of Fact and Conclusions of Law (pp. 2-10), which can be read here (37).  The plaintiff’s ultimate decision to not pursue changes to the deed restrictions can be found in the email chain presented in Exhibit F in the motion for preliminary injunction found here. (64)   (pp. 27-33, to read chronologically, start on pg. 33) 

So what’s the big deal about these nuisances?  Sound levels which exceed EPA standards for safe noise levels in residential neighborhoods are the issue.  On behalf of the Plaintiff’s the Alto CEP hired the SWCA Environmental Consultants firm to do an analysis of the expected noise levels from the CBP at the proposed location using on site ambient noise level measurements at the surrounding properties and an internationally accepted standard noise emission model for concrete batch plants.  The conclusion from the SWCA analysis was that EPA standards for safe noise levels would be exceeded during plant operations at the immediately adjacent lot occupied by of the High Mountain Landscapes and Nursery as well, as residences in the Legacy Estates neighborhood immediate across NM 220 from the proposed CBP site.  The testimony and rigorous details of the analyses can be found in Exhibit G  ( pp. 35-60) of the preliminary injunction document and memorandum of support . 

To counter this evidence, the defendant presented a plant model in which sound attenuation barriers were proposed to be added around the perimeter of the plant site.  Unfortunately, such a configuration is not the plant configuration which was approved by the recent EIB vote.  Such a significant structural change would very likely change the emission profile due to the introduction of  additional “downwash structures” not accounted for in the EIB approved modeling.   SWCA presented testimony regarding the impact of downwash structures on overall plant emissions during the EIB hearing in October 2022. 

When seen in the context of our appellate court appeal of the EIB vote to grant the air quality permit, several salient problems and questions become apparent: 

• Judge Sugg has stated that plant construction can begin once a permit is issued, but that plant operations cannot commence until he rules on all pending motions.  He has cautioned the defendant that “he proceeds with construction at his own risk” as he has not issued a final ruling in the deed restrictions preliminary injunction case.  He added that he would not do so, until the case is not “ripe” for decision (i.e. after the air quality permit is actually issued).  Now that the air quality permit has been issued, we all await a decision which has no evident deadline.

• It would appear that the defendant is open to risk not only on a potential ruling by Judge Sugg adverse to his case, but in the (likely) event the Court of Appeals remands the EIB vote to grant the permit, effectively making the granted permit no longer valid.  Hence, a CBP could be built that cannot be operated. 

• The question of ripeness also arises.  If the case was not “ripe” for a decision until the air quality permit was issued – why was it considered “ripe enough” to hold 4 days of hearings in the May-June 2022 period, albeit with an indication that a judicial ruling would occur approximately a month after the conclusion of the hearings?

• Regarding the defendant’s filing for a Summary Judgment in July 2023 that the deed restrictions are “unenforceable”, why was so much time and effort spent in trying to have them removed before he purchases the property, as documented in the refenced linked above?

• Should a ruling be made that the deed restrictions in question (which were duly registered with the Lincoln County Clerk’s office), are unenforceable –  are any of the deed restrictions in Lincoln County New Mexico enforceable? 

We can all only wait and see.