{"id":2923,"date":"2008-02-28T10:34:00","date_gmt":"2008-02-28T16:34:00","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/2008\/02\/ag-says-part-of-cruces-land-deal-not-authorized-by-law\/"},"modified":"2008-02-28T10:34:00","modified_gmt":"2008-02-28T16:34:00","slug":"ag-says-part-of-cruces-land-deal-not-authorized-by-law","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2008\/02\/ag-says-part-of-cruces-land-deal-not-authorized-by-law\/","title":{"rendered":"AG says part of Cruces land deal not authorized by law"},"content":{"rendered":"

\"\"<\/a>The attorney general says a controversial land deal that helped spark a recent takeover of the Las Cruces City Council<\/a> contains provisions not authorized by state law. <\/p>\n

<\/o:p><\/p>\n

Specifically, the method of compensating Las Cruces developer Philip Philippou\u2019s Solo Investments<\/a> for developing The Vistas at Presidio is \u201cnot comprehended by and in conflict with\u201d a statute that permits compensation only for tangible improvements to the land, Assistant Attorney General Andrea Buzzard wrote in a formal opinion released Wednesday evening that\u2019s also signed by Attorney General Gary King<\/a>. The land deal was authorized by state Land Commissioner Pat Lyons<\/a> in December 2006.<\/p>\n

<\/o:p><\/p>\n

\"\"<\/a>The impact of the opinion isn\u2019t clear, since it states that the issue of whether the agreement is enforceable will have to be determined by the courts. Potential plaintiffs could include the city or the Las Cruces Public Schools<\/a>, which benefit financially from the land deal.<\/p>\n

<\/o:p><\/p>\n

Philippou\u2019s planned 6,000-acre development on the East Mesa<\/st1:place> could double the city\u2019s current population over 20 years. Anger over the way Lyons<\/st1:place><\/st1:city> and the city council handled the land deal and approval of the development last year led a galvanized group of citizens to oust then-Mayor Bill Mattiace and 12-year Councilor Jose Frietze. They elected a new majority on the council that has pledged to increase public involvement in the development process.<\/p>\n

<\/o:p><\/p>\n

New Mayor Ken Miyagishima<\/a> recently wrote a letter<\/a> to Lyons<\/st1:city><\/st1:place> asking him to do a better job of involving local communities in decisions that would affect them.<\/p>\n

<\/o:p><\/p>\n

Under the agreement, Lyons<\/st1:city><\/st1:place> has leased the land to Philippou, who is responsible for developing it for the state. The agreement would compensate Philippou upon the sale of the land for the value of \u201creasonable project costs\u201d plus 40 percent of the \u201cchange in value\u201d as a result of Philippou\u2019s developing the land.<\/p>\n

<\/o:p><\/p>\n

The agreement would allow Philippou to be reimbursed for professional engineering and planning expenses and governmental fees, and for \u201cintangible improvements\u201d such as developmental rights and approvals. <\/p>\n

<\/o:p><\/p>\n

But state law, Buzzard wrote, only allows compensation based on an appraisal that determines the costs of improvements that include water rights and infrastructure. The law doesn\u2019t allow compensation for the change in the land\u2019s value. It also doesn\u2019t allow compensation for intangible improvements, planning expenses and fees because they aren\u2019t \u201ccapable of being valued and appraised as improvements,\u201d Buzzard wrote.<\/p>\n

<\/o:p><\/p>\n

You can read the full opinion, which was released late Wednesday, by clicking here<\/a>, and the lease agreement by clicking here<\/a>. The opinion comes in response to letters<\/a> from state Rep. Nate Cote<\/a> and Sen. Mary Jane Garcia<\/a>. <\/p>\n

<\/o:p><\/p>\n

Though the attorney general sometimes backs up his legal opinions with action, King doesn\u2019t appear to be ready to take this issue to court. Spokesman Phil Sisneros said another interested party, such as the city council, could use the opinion if it chose to contest the agreement.<\/p>\n

<\/o:p><\/p>\n

\u201cIt is within the province of the courts to decide issues of public policy that bear on the validity of contractual obligations,\u201d the AG\u2019s opinion states. \u201cConsequently, we believe that whether the Solo lease is enforceable or not enforceable is a question of law for the courts to determine.\u201d<\/p>\n

<\/o:p><\/p>\n

\n

I have been unable reach Miyagishima for comment. The only councilor I spoke with hadn\u2019t seen the AG opinion and didn\u2019t want to comment. Lyons and Philippou both said Wednesday evening that they had not seen or heard about the opinion. Philippou said he would comment after he examined it.<\/p>\n

<\/o:p><\/p>\n

Lawsuit, legislation are possibilities<\/span><\/p>\n

<\/o:p><\/p>\n

Stephen Fischmann, who is involved with the Quality Growth Alliance<\/a> and helped spark the movement to take over the city council, said after reading the opinion that it could \u201craise issues as to Philippou\u2019s financial standing in the deal\u201d should the city or someone else with legal standing decide to sue. He estimated that the money that would be paid to Philippou under the portions of the agreement the AG says are not authorized by law could amount to tens of millions of dollars.<\/p>\n

<\/o:p><\/p>\n

\u201cIf I were the schools, I would consider filing suit as this is money out of my pocket,\u201d he said.<\/p>\n

<\/o:p><\/p>\n

Fischmann said there are other land-office leases with similar provisions to those in this agreement that the AG says aren\u2019t authorized by law. He said that raises questions about what happens with those leases, if state oversight of the land office is adequate and, if not, whether the Legislature is ready to act.<\/p>\n

<\/o:p><\/p>\n

Senate Minority Whip Leonard Lee Rawson<\/a>, R-Las Cruces, said he agrees with the AG\u2019s assessment of the lease and is prepared to seek legislation establishing \u201csome level of oversight by the Legislature for land, water and mineral contracts over an appropriate threshold.\u201d<\/p>\n

<\/o:p><\/p>\n

While Rawson said he believes Lyons \u201cis doing an excellent job\u201d of increasing the acreage of state lands and maximizing their value, he said he continues to question situations that allow large developers to seek public lands or money to assist their development projects \u2013 such as this lease and the state\u2019s tax increment development district law.<\/p>\n

<\/o:p><\/p>\n

\u201cYou may recall that I was the only legislator to vote against these TIDDs,\u201d Rawson said. \u201cAny serious evaluation must question either of these mechanisms with regard to the \u2018anti-donation\u2019 clause in our constitution.\u201d<\/p>\n

<\/o:p><\/p>\n

A controversial land deal<\/span><\/p>\n

<\/o:p><\/p>\n

Miyagishima, then the District 6 councilor, was the only member of the city council who voted in May against The Vistas at Presidio. He and many citizens argued that there wasn\u2019t enough public involvement in deliberations about a project so large that it would change Las Cruces<\/st1:place><\/st1:city> forever. When the rest of the council voted to approve Philippou\u2019s project, a movement began to oust those up for re-election in November. Only one who was up for re-election \u2013 Councilor Dolores Connor<\/a> \u2013 survived.<\/p>\n

<\/o:p><\/p>\n

In addition, Lyons<\/st1:city>\u2019 relationship with Philippou led to widespread criticism of the only statewide elected Republican official in New Mexico<\/st1:place><\/st1:state>. Philippou gave more than $20,000 in 2006 to a political action committee that gave most of it to Lyons<\/st1:place><\/st1:city>\u2019 re-election campaign. Weeks later, Lyons<\/st1:city> bypassed his own process for seeking bids to lease the land in Las Cruces<\/st1:place><\/st1:city> by giving the contract to Philippou on Dec. 26, 2006, before the announced time to submit proposals had ended.<\/p>\n

<\/o:p><\/p>\n

Two months later and three months after Lyons<\/st1:city>\u2019 re-election, Philippou gave another $6,000 directly to Lyons<\/st1:city>\u2019 campaign, even though Lyons<\/st1:place><\/st1:city> isn\u2019t eligible to run for re-election.<\/p>\n

<\/o:p><\/p>\n

The Albuquerque Journal<\/a> wrote last year in an editorial that Lyons<\/st1:place><\/st1:city> was damaging his own integrity and might not be able to win another statewide election. Lyons<\/st1:place><\/st1:city> has repeatedly insisted that he has acted with integrity.<\/p>\n

\n

Update, 11:05 a.m.<\/p>\n

<\/o:p><\/p>\n

Cote<\/st1:place> had this to say:<\/p>\n

<\/o:p><\/p>\n

\u201cI\u2019m real pleased that the attorney general has finally given us his opinion,\u201d Cote<\/st1:place> said. \u201c\u2026 My intent was never to vilify anyone, of course. I just wanted to make sure, like Sen. Garcia, that everything was done legally. It appears that the land office may be doing things up there that we may want to look into in the future.\u201d<\/p>\n

<\/o:p><\/p>\n

Cote<\/st1:place> also suggested that legislation to \u201cprovide more sunshine\u201d in the land office may be appropriate.<\/p>\n","protected":false},"excerpt":{"rendered":"

The attorney general says a controversial land deal that helped spark a recent takeover of the Las Cruces City Council contains provisions not authorized by state law. Specifically, the method of compensating Las Cruces developer Philip Philippou\u2019s Solo Investments for developing The Vistas at Presidio is \u201cnot comprehended by and in conflict with\u201d a statute […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2923","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2923","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=2923"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2923\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=2923"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=2923"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=2923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}