BY MAIRE O’NEILL
maire@losalamosreporter.com

Los Alamos County is back in court over its approval of a special use permit for Denise Matthews for Worms and Wildflowers Farm and Nature School to operate a daycare at her home on La Senda in White Rock for 12 children ages 3-6.

Matthews first applied for special use permits for the daycare in March 2020 and they were approved in June 2020 by the Planning & Zoning Commission. In July 2020, she was notified by the County’s 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, they 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.

The  two special use permits went before Planning & Zoning Commission again February 9 for a hearing that lasted 5 ½ hours. In August 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. The Planning & Zoning Commission approved the order and the special use permits and their decision was upheld by County Council.

 In mid-September the opposition group filed another suit in First District Court. Their contentions are the same – that 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”.

New Mexico Courts indicates that this appeal was filed by David North, Akkana Peck, Patricia Thames, Barham Smith and Marilyn Smith, who are Matthews’s neighbors. The original appeal included about a dozen more names of La Senda residents.

 This appeal claims Matthews presented no evidence to Planning & Zoning that operation of the daycare facility would not negatively impact the value of surrounding properties, but that Planning & Zoning was presented with evidence from a licensed real estate appraiser that the operation of a daycare facility would have such a negative impact.

“Was the Planning & Zoning Commission’s determination supported by substantial evidence or otherwise arbitrary or capricious? the administrative appeal asks.

“Evidence presented to the Commission tended to show that noise levels at an existing daycare facility – the same facility (Matthews) used to conduct her sound measurements – exceeded the maximum noise levels allowed in Los Alamos County during business hours.  Was the Commission’s determination that the proposed daycare facility would not likewise generate such sound levels supported by substantial evidence?” the appeal asks.

It also asks if the County Council’s decision to affirm the Planning & Zoning Commissions order granting Matthews’ application was “supported by substantial evidence or otherwise arbitrary and capricious”. The group believes Council could have corrected “errors” made by the Planning & Zoning Commission but instead “doubled down” on the noise and property value issues.

In October, one of the plaintiffs, Patricia Thames, wrote to County officials complaining that Matthews has been running her daycare without a state license. She said Matthews claimed to be running the facility without a state license. She is concerned that Matthews is not running a daycare but an “outdoor nature program” and claimed that CYFD has told her that Matthews does not have a license to run a daycare from her home.

Los Alamos County records indicate that Matthews has a business license for “agricultural based classes and farm product sales” that expires June 21, 2023. County Planning Manager Sobia Sayeda forwarded Thames’ concerns about excessive noise and vehicles driving too fast near Matthews’ property to Deputy Police Chief Oliver Morris. Morris responded that during the week of October 28 LAPD conducted numerous readings and observed no violations of the Municipal Code. He reported 114 vehicles at compliant speeds and 15 cars in the low risk category (under 10 mph). He said in his experience Pajarito Acres has little to no noise issues and that there are many other neighborhoods where LAPD has had complaints over the years and taken readings for citizens.

“We typically only cite for incessant noise that disregards the peace of a community and I have never in my 19 years issued a citation for small children playing outside during the daytime,” Morris said.

Los Alamos County has not yet responded to the plaintiffs’ brief filed in the District Court Administrative Appeal. A remote hearing has been set by Judge Jason Lidyard for 9 a.m. Friday, Jan. 20.