121109 Toomey's Reply to Defendant's Response to Toomey's Motion for Preliminary Injunction

7/30/2019 121109 Toomey's Reply to Defendant's Response to Toomey's Motion for Preliminary Injunction

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TOOMEYS REPLY TO RESPONSE TO MOTION FORPRELIMINARY INJUNCTION 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DEBORAH L. TOOMEY, et al.,

Plaintiffs,

vs.

CITY OF TRUTH OR CONSEQUENCES, a

municipal corporation,

Defendant.

No. 2:12-CV-01100-SMV-LAM

Magistrate Stephan M. Vidmar

PLAINTIFF TOOMEYS REPLY TO DEFENDANTS RESPONSE TO PLAINTIFF

DEBORAH L. TOOMEYS MOTION FOR PRELIMINARY INJUNCTION

COMES NOW self-represented Plaintiff DEBORAH TOOMEY to hereby file this Reply

to Defendants Response to Toomeys Motion for Preliminary Injunction, and as grounds states:

INTRODUCTION

This case revolves around Defendants ultra vires acts which resulted in 65 plaintiffs

filing suit for the siting of refuse disposal areas or plants in the front or backyard of 28 adjacent

properties in violation of local zoning ordinances, all without regard to procedural due process.

This case revolves around Defendants ultra vires acquisition and maintenance of refusal

disposal areas or plants on top of two community drinking water wells without regard to the

communitys health, welfare and safety. This case revolves around Defendants steadfast and

contrary to law assertion that City does not have to follow the law or administrative decisions.

What this case is not about, however, is Defendants hypotheticals and doomsday

predictions based upon false information. The City has been under order for more than 20


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years to close the Citys landfill by March 2013. Contrary to Defendants assertions, a

municipality is not required pursuant to 20.9.2.9(C) of the New Mexico Administrative Code to

operate a City-owned collection center nor a City-owned landfill nor even City-owned collection

services. There will be no garbage piled in the streets of Truth or Consequences if Defendant

does not acquire a solid waste collection center in the next few months or ever.

While it is true that as of October 29, 2012, there is no other nearby site for solid waste

disposal available to City, nearby transfer stations acquired and maintained via ordinance by the

County of Sierra capable of accepting Citys collected trash will be available prior to the

completion of the Citys solid waste collection center or closure of Citys landfill in 2013.

Contrary to Defendants assertion that it is a flaw to not propose any viable

alternatives, Plaintiff Toomey understands the judiciary does not legislate. All viable

alternatives for Defendant to acquire a solid waste collection center are legislative and are,

therefore, not requested as relief by the Court.

Regardless, a viable alternative to Defendants doomsday predictions ifDefendant is

not allowed to continue to acquire a solid waste collection center is to not acquire a solid waste

collection center in violation of local zoning ordinances, in violation of state statute, and in

violation of an administrative decision restricting the land to recreational use. Instead,

Defendant may contract for disposal at the Countys transfer station rather than construct its own

collection center and contract out for transport out of the County. Or Defendant can contract out

both collection service and disposal for the municipality to a private contractor.


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The doomsday predictions of City trash vehicles traveling 180 miles a day and garbage

piling high in the street as Defendantsonly option if they do not acquire a solid waste collection

center, is not only ridiculous, but is false.

Notice of this Motion for Preliminary Injunction was served upon Defendant when

nothing more than dirt work had been done. A solid waste collection centeris not necessary

for Defendant to meet its refuse disposal obligations under NMAC 20.9.2.9(C). An injunction to

halt an unnecessary and ultra vires acquisition of a solid waste collection center harms no one,

including Defendant and the general public. The continued ultra vires acquisition by a

municipality of a solid waste collection center harms the entire public, including 65 plaintiffs. A

Motion for Preliminary Injunction keeps the status quo by halting any continued ultra vires

acquisition of a solid waste collection center.

APPLICABLE LAW

Not only does Plaintiff Toomey meet the four factors, but so do 64 other plaintiffs who

filed the Complaint for Declaratory Relief upon which the Motion for Preliminary Injunction is

based. Plaintiff Toomey anticipates many, if not all, of the other 64 self-represented plaintiffs

served with Defendants Response to Motion for Preliminary Injunction on November 8, 2012,

will reply within 14 days of service ifPlaintiffs Motion to Grant Preliminary Injunction for

failure of Defendant to serve a response on all parties within 14 days is not granted prior.

ARGUMENT

A. Irreparable Injury has been established.The Complaint for Declaratory Relief and Motion for Preliminary Injunction clearly

establishes irreparable injury has occurred by definition as a matter of law.


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Failure to comply with zoning regulations denies procedural due process. Miller v. City

of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976).

Defendants failure to comply with its zoning ordinances fails to protect and provide

safeguards for persons and property in the vicinity of a special land use. Local Ord. 11-5-6(E).

Defendants failure to enact or abide by an ordinance fails to provid[e] for the safety,

preserv[e] the health, promot[e] the prosperity and improve[e] the morals, order, comfort and

convenience of the municipality and its inhabitants. NMSA 3-17-1 1978.

Simply, irreparable injury to the public, including 65 plaintiffs, occurs by definition when

a governing body fails to govern, whether such failure is a violation of its local zoning

ordinances, is a violation of state statute in failing to enact a required ordinance, or violating a

State of New Mexico administrative decision that land remains reserved for recreational use.

B. The requested Preliminary Injunction is in the best interest of the public.The enactment of ordinances, statutes and the promulgation of rules are authorized in

the best interest of the public. Therefore, the violation of ordinances and statutes and rules are,

by definition, NOT in the best interest of the public. As such, the requested Preliminary

Injunction to stop Defendants ultra vires acquisition of a solid waste collection center is in the

best interest of the public.

C. There is NO injury to the City and its citizens in granting a Preliminary Injunction.Defendant claims immediate, significant and very costly injury to the City and its

residents and business owners [] if the collection center is not completed. Response to Motion,

p. 5. Defendant ridiculously insists the only option is transfer each individual load by

driving the truck that made the local collection 180 miles. Id. With an even direr doomsday


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prediction, Defendant also insists there would be a build-up of trash in residential and

commercial areas throughout the City, creating an immediate threat to the health, safety, welfare

and property values of the Citys residents and business owners. Id.

Per NMAC 20.9.2.9(C), a municipality may contract with any person for the

collection, transportation, recycling or disposal of solid waste. For example, Defendant is

authorized to contract with the County to dispose of Citys refuse at County transfer stations.

Defendant has numerous other options, none of which require a City-owned solid waste

collection center, none of which require the violation of local zoning ordinances, and none of

which entail the doomsday scenario envisioned by City. Specifically, there is NO injury to the

City and its citizens if Defendant does not acquire a City-owned solid waste collection center.

The granting of a Preliminary Injunction does not impact the Citys ability to close the

landfill in March 2013 as required nor does granting of a Preliminary Injunction impact the

Citys current or futureability of City to timely collect and dispose of refuse for residents and

business owners.

D. Plaintiffs will prevail on the merits, and controlling New Mexico case law confirmsvictory.

Defendant asserts they will prevail on the merits because they are not required to follow

the law; to support their flawed argument, Defendant supplies hypotheticals as facts. Not only is

there controlling New Mexico case lawrequiring municipalities to abide by their own local

zoning ordinances, but New Mexico statutes and City of Truth or Consequences local ordinances

also requires Defendant to abide by local zoning ordinances and due process procedures.

City Attorney Rubin, upon whose opinion Defendant relies to support its flawed assertion

a municipality does not have to follow the zoning ordinances it has enacted, was described in


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July 2012 by the New Mexico Court of Appeals, as bereft of any argument [in]coherentand

fails to provide any legal analysis, and supporting authority. State of New Mexico, ex rel.

Toomey vs. City of Truth or Consequences, et al., No. 30,795, slip op. at 7, July 26, 2012. City

Attorney Rubins 15 year old opinion that Defendant is not required to follow its own local

zoning ordinances, is not only legally flawed, but also fails to provide any legal analysis.

Defendant further admits they have not passed an ordinance to acquire a solid waste

collection center as required under NMSA 3-48-2(a) because Defendant contends a solid waste

collection center is not a refuse disposal area or plant and construction is not acquisition. This

absurd contention is based upon Defendants convoluted language theories rather than upon the

plain language of New Mexico statutes.

1. City must follow all local zoning laws.Defendant claims it is not established that the City is subject to and limited by its own

zoning ordinances. Response to Motion, p. 9. Both City Attorney Rubin and defendants new

counsel agree after due investigation there is no case law or requirement for a municipality to

follow its own zoning ordinances. Id. Perhaps, the New Mexico annotated statutes and Truth or

Consequences local ordinances would have assisted Defendant and counsel in their due

investigation for controlling case law or legislation applicable to Defendants requirement to

follow its own local zoning ordinances. NMSA 3-21-1, 3-21-6, 3-21-10 1978.

In New Mexico, municipalities are required to strictly construe their zoning ordinances

and are bound to follow the zoning regulations it has adopted, in the exercise of its delegated

legislative power.Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976).


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Defendant also claims the City could explicitly exempt itself [from local ordinances]

if it so chooses. Response to Motion, p. 9. Plaintiffs do not argue upon a hypothetical.

Plaintiff Toomey argues upon the duly enacted City of Truth or Consequences Code of

Ordinances, Section 1-7: All lands or property owned or leased by City the ordinances of

the City shall be applicable on such property. That includes applicable ordinances on special

use permits, required due process proceedings, building codes, and zoning district limitations.

Strict compliance with local zoning ordinances not only requires a special use permit, but

publication and notice, including individual notice to property owners within 100 feet, excluding

public right of ways, of the proposed special land use. None of the 28 adjacent properties were

noticed for a public hearing that never occurred. Strict compliance would have required a public

hearing wherein water drinkers could express their concern of placing refuse within 150 feet of

our drinking water wells.

None of that happened; twice. Instead, Defendant attempts to replace public hearings,

and all their procedural protections, with untranscribed, ignored public comments and claim the

difference is merely a quibble. New Mexico case law disagrees. Battershell v. City of

Albuquerque, 108 N.M. 658, 777 P.2d 386 (Ct. App. 1989).

2. Neither the collection center nor recycling facility are truck terminals;they are refuse disposal areas or plants in violation of local zoning

ordinances.

Defendant argues the hypothetical that the solid waste collection center and recycling

facility are truck terminals, and thereby permitted by right in an M-1 zone. Defendants entire

argument requires the Court to completely ignore recycling is specifically listed as special

use in an M-1 zone. Local ord. 11-9-8-(E)(4).


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The State of New Mexico Solid Waste Bureau did not register Defendant as a

commercial hauler of solid waste with collection facilities that are part of a commercial

hauler operation (i.e., truck terminal for solid waste). NMAC 20.9.3.27(C).

As Defendant admits, the Solid Waste BureaurequiredCity to register both the solid

waste collection center and recycling facility as refuse disposal areas or plants pursuant to

NMAC 20.9.3.27. If the Solid Waste Bureau had declared Defendants project a truck

terminal for a commercial hauler of solid waste, registration under 20.9.3.27 would have not

been required. Instead, Defendant would be registered by the Solid Waste Bureau under NMAC

20.9.3.31. It is not. Defendant is not a commercial hauler and the solid waste collection center

and recycling facility are not truck terminals as part of a commercial haulers operation.

Defendant also claims the facilities are permissive within the M-1 District. However,

recycling is clearly listed in an M-1 District as special use and not permissive. Complaint, p.

12, 4; local Ord. 11-9-8(E)(4). No matter how many times Defendant argues recycling is

permissive rather than special use, it does not change the clear language of local Ord. 11-9-

8(E)(4) listing the land use recycling as special use.

Since zoning ordinances are in derogation of the common law, they are to be strictly

construed.Nesbit v. City of Albuquerque, 91 N.M. 455, 575 P.2d 1340 (1977). Our local

zoning ordinances were enacted to promote the health, safety, morals or the general welfare of

the municipality. NMSA 3-21-1. The special use permit process is specifically to protect and

provide safeguards for persons and property in the vicinity of a special land use. Local Ord. 11-

5-6(E). Defendants violation oflocal zoning ordinances and failure to apply for special use

permits for the existing recycling facility and/or under-construction solid waste collection center


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are, therefore, failures to provide and protect for the health, safety, property in the in the vicinity

of special land uses, twice.

3. Plaintiffs agree they have no cause of action under the Recreation and PublicPurposes Act, and have never claimed one.

Plaintiff Toomey agrees Plaintiffs have no cause of action under the Recreation and

Public Purposes Act.

Plaintiff Toomey agrees that if Plaintiffs were requesting relief that land must revert to

the United States, there would be a claim for relief under the Recreation and Public Purposes

and the United States would be an indispensable party to cancel and set aside patents.

Response to Motion, pp. 11-12 and 15.

However, as Plaintiffs do not request the land must revert to the United States nor

request to cancel and set aside patents, the United States is not an indispensable party and no

claims exist under the Recreation and Public Purposes Act.

Plaintiffs make a claim under New Mexicos Administrative Appeal Act that a final filed,

written administrative decision which includes a statement of fact and law is final after 30 days.

NMSA 39-3-1.1 1978. The administrative appeal concluded in September 2012 did not

determine property ownership. The administrative appeal did determine as a matter of fact and

law, however, that the land remains encumbered by thepatentand is reserved for recreational

use only.

Defendant requests the court to notwithstand[]the language of U.S. Patent No.

1191929, and to [d]espite the limiting language of the patent restricting the use of the land to

recreational use onlyand to ignore Defendants arguments have already been rejected by the

State of New Mexico pursuant to 39-3-1.1. Response to Motion, p. 14, (c).


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Plaintiffs pray the Court withstands the limiting language of the patent restricting the land

for recreational use by affirming the State of New Mexicos administrative final decision that the

land remains encumbered by the patent for recreational use only.

4. City made no final decisions appealable under 3-39-3.1 nor ordinancesavailable for referendum.

Defendant claims the ratification of October 25, 2011, to site the collection center at

601 Nadyne Court after due consideration and discussion,was the appealable final decision.

Response to Motion, p 10. Defendant even suggests that the failure of Plaintiffs to file a timely

appeal under Section 39-3-1.1 is itself sufficient for dismissal. Response to Motion, p. 10.

However, Defendant fails to specify any statutory reference upon which Plaintiffs have

the right to an administrative appeal under 39-3-1.1. There is no statutory right to an

administrative appeal under 39-3-1.1 of the failure of a governing body to perform a legislative

act through ordinance rather than ratification. In fact, Defendants ratification of October

25, 2011, has no basis in law. City of Santa Fe v. Armijo, 96 N.M. 663, 634 P.2d 685 (S. Ct.

1981).

There is a statutory right to appeal the granting or denying of a special use permit under

39-3-1.1 for a recycling facility or solid waste collection center. Takhar v. Town of Taos, 2004-

NMCA-072, 135 N.M. 741, 93 P.3d 762, cert. denied, 2004-NMCERT-006, 135 N.M. 788, 93

P.3d 1292. There is no statutory right to appeal a failure to either grant or deny a special use

permit when no special use permits exist.

Defendant argues that it is not required to enact an ordinance to site or construct or accept

bids to construct a solid waste collection center because through some strange language quibbles,


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a solid waste collection center is not a refuse disposal area or plant as intended by the

legislature in 3-48-2(a).

Defendant argues that a solid waste collection center is not a disposalplant or area of

refuse under a strange theory thatdisposal of refuse is a final, one-time only action. In other

words, for Defendants definition of a disposal area or plant to be relevant, disposal must be

defined as the final act of placement of refuse at landfill. Response to Motion, p. 18.

The Solid Waste Bureaus definition of disposal does not limit disposal to landfills, and

actually describes Defendants intent to deposit solid waste at a collection center as disposal.

NMAC 20.9.2.7(D)(6).

Solid waste is defined as refuse. NMAC 20.9.2.7(S)(9).

In addition, "solid waste disposal area" is defined as an area where more than 120 cubic

yards of solid waste have been disposed. NMAC 20.9.2.7(S)(10). As a collection center is

defined as a facility with operational rate of less than 240 cubic yards per day of solid waste

accumulation (i.e., deposit), a solid waste collection center is a solid waste disposal facility of

more than 120 cubic yards of solid waste. NMAC 20.9.2.7(C)(6).

As such, the plain and ordinary language of NMSA 3-48-2 promulgates refuse disposal

areas or plants necessarily includes both Defendants existing recycling facility and under-

construction solid waste collection center.

The plain and ordinary language of NMSA 3-1-2 also makes it clear that acquire or

acquisition is defined as purchase, construct, accept or any combination of purchasing,

constructing or accepting. Defendants argument that acts of siting and accepting bids are

routine and not actions required to be taken by ordinanceas an acquisition is contrary to the


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plain language of the statutes. Response to Motion, p. 18. An ordinance is required by statute

for Defendant to acquire a solid waste collection center which Defendant admits they are

presently purchasing and constructing. NMSA 3-48-2(a) and 3-1-2 1978.

Defendant admits no ordinance has been enacted to acquire a solid waste collection

center. Defendant falsely claims that Chapter 11 of the local ordinances already authorizes

Defendants acquisition of a refuse disposal area or plant. Response to Motion, p. 17. Chapter

11 enforces a general system of refuse collection in compliance with NMSA 3-48-2(b)-(g).

Chapter 11 is completely silent on the acquisition or maintenance of refuse disposal areas or

plants, including silent on the acquisition and maintenance for the past 25 years of Cit ys current

landfill as required by NMSA 3-48-2(a). Defendants failure to acquire or maintain by ordinance

a refuse disposal area or plant 25 years ago does not give Defendant license to once again

acquire ultra vires a new refuse disposal area or plant in violation of NMSA 3-48-2(a). Said

ordinance does not and never has existed in the City of Truth or Consequences.

The acquisition of refuse disposal areas or plants without the statutorily required

ordinance is, therefore, an ultra vires acquisition of a solid waste collection center.

CONCLUSION

The Motion for Preliminary Injunction should be granted.

DATED: November 13, 2012.

__________________________________________

DEBORAH L. TOOMEY211 W. Riverside DriveTruth or Consequences NM 87901

(505) 315-8503

(505) 214-5771 fax

Documents

121109 Toomey's Reply to Defendant's Response to Toomey's Motion for Preliminary Injunction