In the United States it is assumed that if there is no law on the books, then it is allowed. If a law is subsequently passed, it is assumed one cannot be forced to comply with it retroactively.
Truth or Consequences is breaking with that tradition as it relates to storage units and shipping containers on private property.
The city commission passed a new ordinance at the Aug. 10 meeting that allows storage units or shipping containers in most commercial, all manufacturing and all transitional zones, as long as it is no bigger than 46 feet long by 10 feet high, is on the same lot as a principal building, conforms to setback requirements and no one is living in it.
If the storage unit or shipping container is in the Hot Springs Bath House and Commercial Historic District or the overlapping and somewhat larger “Metropolitan Redevelopment Area,” then the owner needs a conditional use permit.
The law goes on to say that all residential districts with storage units or shipping containers must also have a conditional use permit.
Here’s the kicker: Assistant City Manager Traci Alvarez said she will enforce the new law retroactively, deciding on a “case by case basis” if a property owner has to comply.
The city commission accepted Alvarez’s statement without comment.
This gives enormous powers of discretion to Alvarez to pick and choose who must jump through extra hoops to retain their property rights. If the law were prospective—applied going forward—such case-by-case scrutiny by a city official would not arise.
The new ordinance also does not state it is retrospective, making Alvarez’s powers vague and unlimited. Does she have the power to enforce other ordinances retrospectively? Do her designees? Does local law enforcement?
I asked City Attorney Jay Rubin during a break in the meeting how retroactive enforcement of a new law is legal. “You could argue it in court,” Rubin replied.
Thomas Jefferson wrote in 1813:
The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. …The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just.
The U.S. Constitution prohibits Congress from passing “ex post facto” or “after the fact” laws, Clause 3, Article 1, Section 9. It prohibits states from passing ex post facto laws, Clause 1, Article 1, Section 10.
The following link gives New Mexico state statute, attorney general opinions and case law on ex post facto laws:
https://law.justia.com/codes/new-mexico/2019/chapter-12/article-2a/section-12-2a-8/
Equal Protection under the law? Not in T or C, where elected and appointed officials, without “qualifications”, rubber stamp rulings made by equally “unqualified” staff that they have appointed. Rule of law here is subject to the bizarre and whimsical interpretation by attorney Rubin for the benefit of City staff and officials. “You can take it to court” he states, been there and done that, most recently fighting the ridiculous $50.00 per month electric meter reading charge imposed on a handful of residents who declined to accept the imposition of smart meters after the City denied the people a special election on the Moratorium in violation of State of New Mexico Statutes. Are we not New Mexican residents and taxpayers? Do we not deserve to be treated the way the vast majority of New Mexicans’ are treated? What gives City Employees the right to Violate the Municipal Code and State Statutes at will if it benefits their friends or self-serving interests? Yes you can challenge the City in court but as in my case over $20,000 was paid to Santa Fe Attorneys defend the City from a Pro-se Petitioner, Needless to say the corrupt elected judges borrowed the city’s rubber stamp to find in their favor. Lawlessness by City officialdom will continue unchecked until the last person leaving town turns off the lights. You live here, is this the community that you want?
And to say on this matter,Very Very True …The Judges are Not Fair,They Do Not Follow The Law,So I am Questioning the town,If Judges are not Fair why even bother? Maybe They shouldn’t be Judges because if they can’t be honest & follow the law,why would i care to live in a community that won’t fight back? They Do Not Know The Law On Rental Law, especially when we were under a Pandemic. If followed that you can not evict anyone under the Pandemic ,Did a Judge follow this? No, he did not. Under Sierra County during the pandemic, there were 73 people that were taken to court for evictions and about 99% of them lost. So that says we don’t care if your sick or dying or no place to go, just get out. We don’t care if you can afford your rent or not, if you are sick or starving get out! So again, why do I care for a community that won’t fight? It seems like it’s more about the money grab than listening to thy neighbor..
I have lived here for twenty years, and still ..the City has shitted on us, .and we have no say ,what and when we can voice our worries,the city is controlling how we stand,or whom we stand against, and what we say or do,Down to the Judges that do not follow the law,or Police that over step the law,again why would i want to even stay in a community ,that it’s a power play about money & power . Not the community
I’ve been looking into buying property in NM. I can’t believe these county government tactics to oppress, control and cheat tax paying citizens. Thank you for publicizing this government overreach. I won’t be moving to NM. There are many other more equitable and tax payer friendly states to choose from that aren’t running out of water! NM owes millions of gallons of water to TX. In short, the government intrusion on taxpayer rights, along with the lack of water and horrific nuclear waste pollution from Los Alamos, threatening the single most important and largest aquifer in NM that the EPA can’t completely remediate, takes the state off my list.
Such a shame. It’s so beautiful. One would think county gov’t control freaks would devote their energy to ensuring the water is clean and devising plans (as they’ve done in ID) to replenish the aquifers, instead of abusing tax paying citizens.