CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. O-26-10 ENACTMENT NO. ________________________
SPONSORED BY: Klarissa J. Peña
ORDINANCE
title
Amending Section 14-16-6-4(U)(5) Of The Integrated Development Ordinance To Define The Criteria For Awarding Appeal Costs (Peña)
body
AMENDING SECTION 14-16-6-4(U)(5) OF THE INTEGRATED DEVELOPMENT ORDINANCE TO DEFINE THE CRITERIA FOR AWARDING APPEAL COSTS.
WHEREAS, land use appeals to the City Council under the City’s Integrated Development Ordinance (IDO) are closed record proceedings, meaning that the Land Use Hearing Officer (LUHO) and the City Council must base their findings and recommendations solely on the administrative record and the arguments presented by the parties; and
WHEREAS, existing language in Section 6-4(U)(5)(b) of the IDO requires consideration of factors such as financial hardship and the City’s Social Vulnerability Index, which are not part of the administrative record and therefore cannot be properly evaluated within the procedural limits of a closed record appeal; and
WHEREAS, defining the procedures for incorporating these extra-record factors into the record and incorporating the additional considerations identified below ensures that the LUHO’s findings on appeal costs and fees are based solely on the merits of an appeal, the record, and conduct presented in the record, consistent with the fair and impartial administration of the appeal process; and
WHEREAS, these revised criteria are objective, legally sound factors that align more closely with the standards used in judicial proceedings for determining the extent to which reasonable costs and attorney’s fees should be awarded; and
WHEREAS, these revised criteria promote fairness and accountability while preserving access to the appeal process; and
WHEREAS, this amendment ensures that the assessment of costs and fees remains consistent with both the closed-record nature of the appeal and the legal and equitable principles that guide similar determinations in court settings.
BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. Section 14-16-6-4(U)(5) of the Integrated Development Ordinance is hereby amended as follows:
6-4(U)(5) Appeal Costs and Fees.
6-4(U)(5)(a) For an appeal to City Council related to an application that was denied, all parties shall be responsible for their own costs and fees.
6-4(U)(5)(b) For an appeal to City Council related to an application that was approved, if the appellant loses their appeal, they shall be responsible for paying up to $1,000 for the reasonable costs and fees of the appellee.
1. A finding on the reasonableness of any costs and fees shall be made by the LUHO. The finding shall be based on the following factors:
a. The conduct of the parties during the appeal, and whether that conduct was in bad faith, or malicious.
b. The objective reasonableness of the claims and defenses asserted by the parties.
c. The extent to which an award of costs and fees in the case would deter others from asserting good faith claims or defenses in similar appeals.
d. The extent to which an award of a costs and fees in the case would deter others from asserting meritless claims and defenses in future appeals.
e. The objective reasonableness of the parties and the diligence of the parties and/or their attorneys during the proceedings.
2. A costs and fees exemption may be granted to an appellant that demonstrates in their appeal application that they meet one of the following criteria. The review of these criteria shall be conducted administratively by the Planning Department and included in the appeal record transmitted to the LUHO.
a. Any individual appellant that demonstrates hardship, low income, or indigent status.
b. Any entity appellant with a geographic boundary that includes more than 50 percent of its area within an area that has an overall score of 50 or greater on the City’s Social Vulnerability Index.
SECTION 2. SEVERABILITY. If any section, paragraph, sentence, clause, word or phrase of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
SECTION 3. COMPILATION. SECTION 1 of this Ordinance amends, is incorporated in, and is to be compiled as part of the Revised Ordinances of Albuquerque, New Mexico, 1994.
SECTION 4. EFFECTIVE DATE. This Ordinance takes effect five days after publication by title and general summary.
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