BY MAIRE O’NEILL
Los Alamos County Planning & Zoning Commission has again approved special use permits for a proposed day care facility for up to 12 children ages 3-6 for Denise Matthews doing business as Worms and Wildflowers Farm and Nature School and to allow her to employ more than one family member. The proposed location is on La Senda in the Pajarito Acres area of White Rock.
Matthews first applied for the special use permits in March 2020 and they were approved in June 2020 by the Planning & Zoning Commission. In July 2020, she was notified by the Community Development Department that there was an appeal against the permits and the matter was remanded to the Planning & Zoning Commission for more information. When the decision was affirmed by County Council, Thames filed a suit in First Judicial District Court.
In May 2021, Judge Jason Lidyard issued an order that stated the Court would not engage in analysis of the case at that time as to whether the special use permits application should be denied.
“The Court leaves the County to perform its statutory obligation so that this Court can carry out its appellate obligations as a reviewing court should the new decision be appealed,” he said.
And so the two special use permits went before Planning & Zoning February 9 when a 5-1/2 hour hearing was conducted. On Wednesday night the permits were back on the Planning & Zoning agenda to consider an order containing findings of fact and conclusions of law and approving the two special use permits.
During the February 9 meeting the main issue of contention continued to be whether the proposed daycare would be “detrimental to the health, safety, peace, comfort or general welfare of persons residing or working in the vicinity of such proposed use, or be detrimental or injurious to property or to the value of property in the vicinity, or to the general welfare of the County”. This has also been the main contention of a group of near neighbors who have appealed the proposal.
At Tuesday’s meeting Associate County Attorney Kevin Powers explained that as the County has learned in the last several months, the findings of fact need to be a recitation of the Commission as a whole’s findings. He said the findings of fact are generally statements that you believe the testimony and evidence presented to the Commission members was found them to be persuasive certain issues and unpersuasive on others.
“As we’ve learned, we do need to go through all the elements that are required in approving an application. As you see in the draft order, there’s information about the property… about the public notice, and then going through each of the criteria for the special use permit,” Powers said.
He later said the order is to simply give a reviewing court to say,” Is there enough presented for you to be able to reach a decision”. He noted that the order can be very detailed, that it could be 100 pages but at some point that just becomes a transcript of the hearing.
The Commission voted 6-1 to approve the order and inherent in that is the approval of the two special use permits. Commissioner Terry Priestley cast the dissenting vote.
During Commission comments just prior to voting, Priestley said he thinks that when somebody applies for a special use permit, they want to do something with their property to be used in a manner that is deviation from the normally accepted activities.
“That’s why we have a special use permit process. So when we do that, we need to take into consideration the impact on their immediate neighbors. We had a lot of testimony from the community, and frankly we had testimony from a representative of the Lab, and I think we all agree daycare is important, but that’s not what this is about. This is about how this is going to impact the immediate neighbors and I think we as a commission have not given enough weight to the immediate neighbors’ concerns,” he said.
Priestley said it’s not the Commission’s job to solve the Lab problem.
“As you heard from the representative of the Lab, the Lab just flatly refused to address this problem, and why we should put that burden on the near neighbors is not appropriate in my mind. Something we have dealt with before and it has come up in this case – I think sometimes the staff turns into an advocate for an applicant and I wish the staff would be a little more independent and in this case there’s several criteria that weren’t addressed in the application in my mind, and the staff report did not address them either. I think if the staff would be a little more independent as opposed to an advocate for the permit, I think it would help us a lot,” he said.
Commissioner April Wade said she thought the lack of daycare is not just a Lab problem.
“It’s a town problem and a business problem and I think it is in our purview,” she said.
Acting Chair Neal Martin noted that the Commission had a lot of discussion about the case and had already laid out a lot of opinions.
“A summary of our consensus view is written up in this order so I don’t necessarily want to go back and resurface the discussions themselves except to amend the order and I think we have done that to the satisfaction (of the commission) as much as we can,” Martin said. “Some people would like to see the order be different because they would like to see it represent a different view of the commission. The view of the commission being what it is, it seems like a reasonable order.”
Chair Rachel Adler said it’s important to note that there were several neighbors who were within the 300 foot radius who also supported the daycare.
Again the decision may be appealed to the Council within 15 calendar days.
Later in the meeting under his liaison report, Councilor David Reagor discussed the fact that commission members are not attorneys but are deciding on the 30-page order.
“I am very puzzled as to why the judge required you guys to jump through these hoops and it’s disturbing. Hopefully this will move ahead smoothly. I don’t know how you can do it any better because you’re doing it like a committee of non-lawyers trying to write a legal document and this shouldn’t even be your job. It’s very disturbing that a judge asked for this or perhaps we have to find another way around this because it’s disturbing to watch. I’m not a lawyer and I don’t understand all the details we’re ever even discussing so it’s very difficult. You’ve been place in a very poor spot and you’ve been very brave to do it,” Reagor said.
Matthews told the Los Alamos Reporter Thursday evening that the 6-1 vote to approve her application is good news.
“I’m thrilled that I was able to present a strong case to the Commission and appreciate the many people who wrote and spoke in support of my application,” she said.
Matthews is optimistic that she can move on to getting her state license and her County business license despite the possibility of yet another appeal.