On The Proposed Downtown Pedestrian Retail Overlay Zone


Code Ordinance 02-317 proposes the creation of the Downtown Pedestrian Retail Overlay Zone (DT-PRO).  It was passed by the Planning and Zoning Commission and will be introduced next week for a hearing by the County Council on July 27.  The ordinance has technical and legal defects, would not accomplish its intended purpose, and is an illegal and unconstitutional intrusion on the property rights of our struggling downtown business community.    I urge Los Alamos Citizens to oppose this ordinance and the County Council to defeat it.

The ordinance apparently springs from the popular misconception that LANL is the cause of the misperceived high rents and poor retail environment in our downtown.  Accordingly, its provisions aim directly at the Lab and its contractors, effectively denying any property owner in the affected area the right to rent space for laboratory or research uses.  Professional offices and residential uses would be allowed only above the ground floor.  A few other uses are restricted but the primary effect is to deny the Lab space in the affected area of downtown.

Wait – what area is affected?

One serious defect is the lack of an accompanying description of the area to which the overlay would apply.  When the P&Z passed it, they had no idea where it would apply.  In their analysis the staff of the P&Z – the Community Development Dep’t or CDD – assumed it would apply to DT-NCO and DT-TCO (roughly South of Trinity and around Central, respectively), but the ordinance is silent.  How can you even vote on an ordinance when you don’t know its scope?  When it actually, therefore, has no scope?  Is this some kind of political or legal legerdemain?  We have to go through another process to get an amendment to the Zoning map to identify the boundaries of the DT-PRO overlay? 

I don’t know if this is sloppy or fishy, but I don’t like it, and you should expect better than that from your county government.

“Downzoning” is the event that the uses to which a property can be put are changed in a way that is more restrictive.  Zoning law is kind of murky but it’s clear that a property may only be downzoned by the government if there is a mistake or change in circumstances that make it in the public interest.  When specific properties are downzoned the owners have the right to a due process hearing, not a legislative process such as this one.  When due process is not accorded it is a “taking” in the sense of the Fifth Amendment to the US Constitution, which forbids “taking” without due process.  In my humble opinion that’s happening here.  In a famous  case in similar circumstances in Albuquerque early in this century the city lost in court and ended up with a more than  $8 million liability in a Section 1983 lawsuit. 

The county should take these civil rights seriously.

The county should also pay more attention to the varied factors that affect economic development and economic viability.  The idea that LANL has and continues to destroy our downtown is popular at parties and bull sessions but unsupported by any evidence.   When there are offices and laboratories in a downtown that is a good thing – more foot traffic for starters, the mother’s milk of retail. 

My first experience in this arena was in 1987, when I chaired the county’s first venture into the downtown – the Downtown Redevelopment Task Force.  We had focus groups and experts, we wrote a report, all of which have been reprised several times since then by succeeding councils and various groups.  What I took away from that and subsequent experiences is this:  it’s really hard to build a vibrant downtown, takes a lot of time, study, collaboration  – and luck.  We’ve done that, and I can tell you today’s downtown beats the one we had in 1987 by a country mile.  But it’s easy to destroy a collaborative effort necessarily built on trust and mutual respect – and hardball unilateral tactics like ordinance 02-317, poorly conceived and based on guesswork and no evidence, are just what we don’t need for our downtown.  Call or e-mail your councillor.

George Chandler