AG says part of Cruces land deal not authorized by law
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’s Solo Investments for developing The Vistas at Presidio is “not comprehended by and in conflict with” 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’s also signed by Attorney General Gary King. The land deal was authorized by state Land Commissioner Pat Lyons in December 2006.
The impact of the opinion isn’t 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, which benefit financially from the land deal.
Philippou’s planned 6,000-acre development on the
Under the agreement,
The agreement would allow Philippou to be reimbursed for professional engineering and planning expenses and governmental fees, and for “intangible improvements” such as developmental rights and approvals.
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’t allow compensation for the change in the land’s value. It also doesn’t allow compensation for intangible improvements, planning expenses and fees because they aren’t “capable of being valued and appraised as improvements,” Buzzard wrote.
You can read the full opinion, which was released late Wednesday, by clicking here, and the lease agreement by clicking here. The opinion comes in response to letters from state Rep. Nate Cote and Sen. Mary Jane Garcia.
Though the attorney general sometimes backs up his legal opinions with action, King doesn’t 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.
“It is within the province of the courts to decide issues of public policy that bear on the validity of contractual obligations,” the AG’s opinion states. “Consequently, we believe that whether the Solo lease is enforceable or not enforceable is a question of law for the courts to determine.”
I have been unable reach Miyagishima for comment. The only councilor I spoke with hadn’t seen the AG opinion and didn’t 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.
Lawsuit, legislation are possibilities
Stephen Fischmann, who is involved with the Quality Growth Alliance and helped spark the movement to take over the city council, said after reading the opinion that it could “raise issues as to Philippou’s financial standing in the deal” 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.
“If I were the schools, I would consider filing suit as this is money out of my pocket,” he said.
Fischmann said there are other land-office leases with similar provisions to those in this agreement that the AG says aren’t 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.
Senate Minority Whip Leonard Lee Rawson, R-Las Cruces, said he agrees with the AG’s assessment of the lease and is prepared to seek legislation establishing “some level of oversight by the Legislature for land, water and mineral contracts over an appropriate threshold.”
While Rawson said he believes Lyons “is doing an excellent job” 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 – such as this lease and the state’s tax increment development district law.
“You may recall that I was the only legislator to vote against these TIDDs,” Rawson said. “Any serious evaluation must question either of these mechanisms with regard to the ‘anti-donation’ clause in our constitution.”
A controversial land deal
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’t enough public involvement in deliberations about a project so large that it would change
Two months later and three months after
The Albuquerque Journal wrote last year in an editorial that
Update, 11:05 a.m.
“I’m real pleased that the attorney general has finally given us his opinion,”
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