Could a bunch of 700 square-foot houses crammed three feet apart be coming to your R-3 neighborhood?

Do you want the look of Truth or Consequences determined by backroom deals with developers that are then papered over by the city commission to look legal? Like a deal that lets a developer cram more houses on a lot than setback requirements allow? 

In essence that’s what a court case will decide, Diane Gunning v. Truth or Consequences, which has been hanging fire for 2.5 years.  

There were many violations in how Nate Stephens was granted permissions that enabled him to build eight houses of a 24-house development thus far, some of which were detailed by Gunning and submitted to the city commission in writing as part of the July 26, 2023 public hearing on Nate Stephens’ variance application to shorten side setbacks from 5 feet to 3 feet. Those meeting minutes and submitted documents can be found at the end of this article.  

The bending of code in favor of Stephens was done during the 2022 and 2023 administrations, with city commissioners Rolf Hechler, Amanda Forrister, Destiny Mitchell, Merry Jo Fahl and Shelly Harrelson presiding. City Manager Bruce Swingle and then City Manager Angela Gonzales headed the executive branch. Assistant City Manager Traci Alvarez is and was the official zoning administrator. Jay Rubin was and is the city attorney.   

Stephens’ further development or sale of what has been built came to a stop when Diane Gunning filed an administrative appeal of the city commission’s granting of a side setback variance to Stephens on July 26, 2023. Stephens may feel at this point that strict adherence to code would have served him better. 

The fact that the city commission granted Stephens a side setback variance after eight houses were already built in violation of the code took a lot of looking away, not asking questions, not looking up code, not asking for plans, not listening or checking out citizens’ claims of wrongdoing and not looking at evidence. 

It also took giving up their duty as the legislative branch to be a check and balance on the executive branch–the city staff. They took whatever Alvarez told them as unimpeachable facts. This built-in biased quasi-judicial hearing was largely enabled by ignoring their rules of procedure to conduct variance hearings using the Battershell procedure. Sure, people were sworn in, but nobody got to question or cross examine city staff or Stephens. Mayor Hechler constantly interrupting and cutting off citizens also helped short-circuit any real hearing of the issues, as one can see from the minutes.   

Unfortunately, the city commission’s pretense of a public hearing, its pretense of sitting as a neutral quasi-judicial body deciding a land-use issue based on fact finding is a feature, not a bug. Over the years they have disregarded the planning and zoning commission’s findings or cancelled their meetings to ensure a transparent hearing of evidence, facts, concerns and questions are smothered. The city refused to seat a P&Z for seven years–from 2013 to 2021. For Stephens’ variance hearing the P&Z meeting was cancelled, Alvarez claiming there was no quorum, when four P&Z commissioners were ready and willing. 

The city code requires the city to have a P&Z, but Rubin, in the past and at the most recent hearing in the Gunning v. City case, said he checked with the New Mexico Municipal League and their attorney said the city doesn’t have to have one. 

In the 14 years I have reported on T or C, I have watched its city commissions give out variances like candy, usually to save developers and builders money or to help them make money. Besides allowing builders to increase building density via bypassing setback requirements, they have consistently waived the requirement that sidewalks, curb and gutter be put in, that a business or development have access to a paved city street, that metal buildings facing main corridors be covered with wood or masonry, that signs be maintained, removed and follow setback and other requirements.  

Variances grant exceptions to the land-use/zoning code, and therefore weaken the city’s ability to enforce the code and control what it looks, sounds and feels like–prosperous or dissolute. It affects the property values, which determines the city’s tax base, the ability to attract and keep businesses, residents, and tourists. 

In many other cities I’ve reported on, it was almost impossible to get a variance. In their city codes–and in T or C’s–the only legal reason for giving a variance is for the “hardship” caused by the building lot’s terrain. For example, if there is a rock outcropping or precipitous incline or its pie-shape was grandfathered in making building siting and meeting setback requirements a hardship. (See page 40 of the minutes for 15-8 variance code)

Alvarez should have rejected Stephens’ variance application, let alone put it before the city commission, but the city commission or city manager may have exerted pressure or she may have followed their historical lead in giving out variances like candy or she may have been elevated by the city commission to a position she is not qualified to perform. The city commission is ultimately responsible for her actions. The zoning administrator only has authority to approve applications and some developments up to and if they conform with city code. The zoning administrator is supposed to make sure the code is followed. (see page 41 of the minutes, city code 11-2-1, zoning administrator’s duties and authority)

Alvarez openly stated (page 5 of the minutes) that the variance was being put forward for city commission’s consideration of a reduction of side setbacks from the required 5 feet to 3 feet and 3.5 feet so that Stephens could sell the six lots separately if he wanted to, which is not a “hardship” for granting a variance under city code. 

Behind closed doors, Alvarez had approved the 24-home development as having complied with city code at some undisclosed date. 

Alvarez had exceeded her authority, essentially granting Stephens a side-setback variance that allowed him to build many more freestanding houses on the six lots. Variances can only be granted by the city commission and a side setback variance only for zero feet, and only if the city commission approved the development plans before the variance application was put before them. (See 11-14-3, exceptions to setbacks: https://library.municode.com/nm/truth_or_consequences/codes/code_of_ordinances?nodeId=COOR_CH16COPLZOCO_ARTXIVDEST_S11-14-3RETRDIADPREX 

The builder, according to city code, must have 5 feet on each side of a house or 0 feet, that is a shared wall. It’s an either/or proposition, not a continuum that allows 3-foot or 3.5-foot side setbacks. Stephens’ eight houses on two lots are all freestanding and his plans approved by Alvarez show the other 16 houses will also be freestanding, therefore they all should have 5-foot side setbacks and 10 feet between houses. (See page 20 of the minutes, 11-14-2, standard side setback requirements)  

Nevertheless, Alvarez told the city commissioners Stephens had “met all requirements. . .as well as full review and approval and he has proceeded to build,” (see page 5 of the minutes) and “they meet all requirements of code,” (see page 11 of the minutes). 

She said Stephens had initially intended to develop the 6 lots as a condominium development in which he would own the land and outside of the buildings. The buyer would own “what’s inside the walls,” he said. But he wanted the flexibility of breaking off and selling individual lots from the condominium development, each of the six lots containing four houses. (See pages 5, 6 and 7 and 11 of the minutes). 

Alvarez implied that setback requirements are different for condominium developments, but there is no such distinction in city code and no section on condominiums. Upon being questioned by Hechler, Alvarez falsely stated that no variance was needed if Stephens sold the property as condominiums (pages 5 and 11 of the minutes). 

Infill developments are contentious, because prior property owners are usually unwilling to give up their peace and quiet for increased traffic and noise and people. Those living nearby made a lot of noise that was ignored by the city commission throughout the three hearings on the development. Another variance hearing that allowed Stephens to proceed without access to a paved city street heard by the P&Z and city commission and the second variance on side setbacks heard by the city commission. 

Stephens’ development is at the end of Wyona Street at the 800 block–a block that didn’t exist before he decided to build in and on the side of the U.S. Army Corps of Engineer’s drainage channel, changing the 700 block’s character from a quiet cul de sac to one that is more trafficked and likely to become heavily trafficked, with the 700 block being used by visitors and owners for parking, since parking is limited on the site. 

Gunning spoke at prior planning and zoning commission meetings and organized a neighborhood meeting with Alvarez and then-City Manager Bruce Swingle, pointing out various code and due-process violations to no avail. The July 26, 2023 public hearing and granting of a variance by the city commission was the final straw. 

As required by state and city code, an administrative appeal of a city commission decision must be filed in district court, which Gunning did, on August 8, 2023. Judge Roscoe Woods was assigned the case. 

There have been status hearings, motion hearings and merit hearings over the last 2.5 years, most of them taken up with the preliminary matter of Gunning’s standing and whether she had the right to bring the case. 

Gunning, who lives in the 700 block of Wyona, has had to represent herself, not just to spare her family the enormous expense, but also because no attorney could be found to take the case. This I have heard often from citizens over the last 20 years. I know that my own numerous complaints to the attorney general’s office have been ignored or resulted in no action. I’ve heard the same from numerous citizens.  

City Attorney Jay Rubin, in representing the city, has twice tried to have the case dismissed based on Gunning’s lack of standing. She doesn’t live within 300 feet of the development, which Rubin has historically cited as a requirement to create standing in P&Z and city commission public hearings for the 20 years I have been around. The city’s code supports proximity-equals-standing in its notification requirements. Only those owners within the 300-foot radius are “interested parties” and entitled to notice via certified letter that the P&Z or city commission are holding a public hearing on a land-use issue that may affect them. 

So far, the assigned judge, Roscoe Woods, has not granted Rubin’s motions to dismiss the case based on Gunning’s standing. 

At the Jan. 30, 2026 hearing, Woods cited various cases that do not restrict standing to close proximity and pecuniary property-value interests, but broaden them to property interests that include preservation of peace from noise and disturbance created by increased traffic. 

Gunning had created standing, Woods suggested, by mentioning traffic during the city commission’s July 26, 2023 public hearing. This took a long time to establish. The minutes had curiously truncated Gunning’s statements and then Rubin submitted a video/audio record that had no audio. Eventually Rubin submitted a transcript of part of what Gunning said, the part about traffic. 

Rubin is arguing that Gunning did not establish a link between the variance and traffic and how or if her property right to quiet enjoyment would be affected. 

Rubin has also argued that Gunning’s appeal of the variance approval should be dismissed because Stephens will still build the 24 houses as condominiums, which doesn’t require a variance, thus making her appeal a moot point. This argument, as the bulk of this article explained above, is built on falsehoods and no evidence. 

But Judge Woods does not appear to understand this, or feels it is beyond the scope of the official record he can legally review, which is limited to the variance hearing on the side setbacks held July 26, 2023. 

Woods, on Jan. 30th, quickly pivoted away from this key issue of the city’s presumption that condos give developers automatic side setback variances. Instead, he concentrated on Gunning’s argument that the city violated notification requirements. City code requires 15 days notice for variance public hearings and the city gave only 12 days notice (See pages 37 and 38 of the minutes). 

This notice violation may result in the judge ordering the city to conduct a rehearing of Stephens’ side-setback variance application granted 2.5 years ago. At the end of the Jan. 30 hearing, Woods said he would give Rubin time to come up with case law that would allow the city leeway on the city’s notification requirement. 

It’s unclear who has the next move. Woods said he would not hold another hearing unless Rubin filed a motion asking for one. Woods gave no time limit to Rubin to submit arguments refuting Gunning’s claim the city violated notification requirements. Otherwise, Rubin’s and Gunning’s briefings are complete and Woods could rule any time. 

Gunning, by taking a stand, has made Rubin, and maybe by extension the city commission, examine its illegal and backroom land-use procedures. 

If there is a do-over public hearing on the Stephens variance, we the people should insist the Battershell method is actually used, prepare legal points, ask city staff questions and insist on answers backed by documents and/or the code. 

July 26, 2023 CC Minutes