The US Minerals Management Service recently announced that it intends to prepare a new Five Year Leasing Plan for the Outer Continental Shelf. This is a vital first step in initiating more exploration and production on OCS lands that MMS estimates could hold 86 billion barrels of oil and 420 trillion cubic feet of natural gas.
MMS has opened the process for taking public comments. I’m writing to you, in hope that you will take a few minutes form your hectic day to write a brief note or letter to MMS, underscoring your support for leasing these lands and producing more of the oil and gas that are the foundation for our economy, living standards and opportunities.
Already, a number of environmental pressure groups have mobilized their extensive financial and networking resources, to deluge MMS with comments OPPOSING any plan that opens up more OCS acreage for leasing and drilling. I’ve heard that comments to MMS are currently running at approximately 15 to 1 AGAINST opening new OCS areas – and thus in favor of continuing the unconscionable Energy War on Poor Families.
To make it easier for you to write a letter to MMS, I’ve attached a sample letter (click on the link below) that provides some facts and ideas you can use, and that you can tailor to your own taste. Also attached are a couple of background papers by MMS and the National Ocean Industries Association (NOIA) that provide useful information about the OCS program and the laws and technologies that enable us to extract even more energy, from even deeper waters, with even greater care for the environmental values we all cherish.
You can send a detailed letter like this. But even a brief letter supporting a full analysis and expanded leasing program will help greatly.
All comment letters must REACH MMS by SEPTEMBER 15, when the comment period closes.
Letters can be snail-mailed to the addresses on the sample MMS letter – or they can be submitted by going to the MMS website (http://www.mms.gov/5-year/5-YearProgramComments.htm) and using either of the following links:
via the web: Public Commenting System
via e-mail: 5YearRFIComments@mms.gov

Comments on 5-Year OCS Oil & Gas Leasing Program for 2010-2015
Ms. Renee Orr
5-Year Program Manager
Minerals Management Service (MS-4010)
Room 3120
381 Elden Street
Herndon, VA 20170
Mr. James F. Bennett
Chief, Branch of Environmental Assessment
Minerals Management Service (MS-4042)
381 Elden Street
Herndon, VA 20170
Dear Ms. Orr and Mr. Bennett:
I am writing to express my strong support for MMS plans to initiate a new five year leasing program, and for expanded leasing on the Outer Continental Shelf (OCS) during the 2010-2015 five-year period. I urge you to fully consider and carefully analyze all planning areas of the OCS, leaving none off the table, as you prepare the draft proposed program and environmental impact statement.
Energy is the foundation of modern society and the living standards we enjoy. It is the key to actually securing the rights and opportunities guaranteed by our Constitution. Abundant, reliable, affordable energy is essential for jobs, food, heating and transportation. Reducing the soaring cost of energy is especially important for America’s small businesses, minorities and poorest families.
Right now, the United States is spending almost $700 billion a year to import foreign oil and gas – because we have made the vast majority of our lands and resources off limits to drilling. As T. Boone Pickens constantly reminds us in his ads, this is rapidly becoming the largest transfer of wealth from one nation to another in the history of mankind. It can not, must not, and need not continue.
On top of that, as Investor’s Business Daily notes, “America is nearly helpless in the face of a resurgent Russia intent on reclaiming its czarist empire, an Iran hellbent on acquiring nuclear weapons, a China making common cause with dictators to acquire energy, and a menacing Venezuela aligning with Russia and Cuba to control sea lanes in the Caribbean, where 64 percent of all US-bound tanker traffic passes.”
The oil and natural gas beneath the 1.76 billion acres of the OCS are vitally needed resources that belong to all Americans. Nearly one-third of US domestic production already comes from the OCS, and the Minerals Management Service has conservatively estimated that undiscovered, technically recoverable resources could total 86 billion barrels of oil and 420 trillion cubic feet of natural gas.
The long record of OCS operations demonstrates that this energy can be produced without harming the marine environment – thanks to new rules, technologies, and commitments by government and industry alike to environmental safeguards. In fact, there has not been a major spill from an OCS production platform in nearly 30 years, and MMS data show that only 101,995 barrels of oil were spilled during all operations on the OCS between 1980 and 2007, out of 11,855,000,000 barrels produced.
MMS is required by law to prepare a schedule of OCS lease sales that “best meet national energy needs for the 5-year period.” To achieve this goal, the agency must develop a schedule that has maximum flexibility, and include as much acreage as possible, so that it can respond to our nation’s changing and growing energy needs, population and economic growth, and economic and national security.
Growing US and world demands for oil and gas are not being met with adequately expanding supplies. As a result, gasoline and other energy prices have more than doubled in recent years – and far too many families have had to make painful choices between heating, eating, medical care, transportation, and rent or mortgage payments. Many have little money left over at the end of the month for vacations, college or retirement. This is both intolerable and unnecessary.
A major reason for this situation is that our own government has closed numerous areas to leasing – and denied us access to energy resources that belong to the American people. In fact, for decades now, Congress has imposed “temporary” moratoria that prohibit oil and gas leasing, drilling and production on 85 percent of the Outer Continental Shelf off Alaska and the Lower 48 States.
Over the past year, however, people have begun to realize that government has become the cause of, rather than the solution to, high prices and other energy problems. By margins of 2:1 and even 3:1, they are now demanding that these moratoria be lifted, and drilling resumed on the OCS.
President Bush recently reversed the Executive Branch prohibitions on leasing and drilling, and Americans are demanding that Congress now lift its prohibitions. I am optimistic that Congress will ultimately listen to the will of the people and act responsibly, to end the needless moratoria.
Alaska Governor Sarah Palin has already removed restrictions on drilling for 30 billion barrels of oil in the Chukchi Sea and all the natural gas in the Beaufort Sea off Alaska’s shores. She has already finished the environmental impact studies, so that shipments to the Lower 48 can start in as little as a year or two – if MMS and Congress do their jobs.
I therefore believe MMS has a responsibility to take a long-term view, assume the moratoria will end, and include in its analyses and plans all the Outer Continental Shelf lands and resources that We the People of the United States own off our shores: in the Atlantic, Pacific, Gulf of Mexico and Alaska. The new MMS plan will be in effect until 2015 – and I ask simply that MMS devise its plan accordingly, to reflect continually changing global conditions and steadily rising energy demands.
That means including all areas, off all our coasts in the new Outer Continental Shelf leasing plan.
Thank you for providing this opportunity to comment, and for making the 2010-2015 OCS plan a truly comprehensive plan that does exactly that.
Sincerely,

It seems like every week or two the Albuquerque Journal feels compelled to publish a hopeful article by proponents of some “alternative” energy source. This week’s edition, “N.M. Sun, Wind Key To Our Energy Future” comes to us from the N.M. Solar Energy Association.
The authors assert in their article that:

A concentrated solar plant (CSP) utilizing about 15 square miles of otherwise unusable land would produce enough electricity to offset New Mexico’s total electrical energy requirements. A CSP of around 100 square miles could meet the country’s entire need, producing more energy than the U.S. consumption of oil, natural gas, coal, hydropower and nuclear energy.

and,

Wind energy programs are working well in New Mexico and have proven to be a cost-effective energy source. Eastern New Mexico could easily produce 20 times the amount of electricity needed in the state. New Mexico’s wind could supply a major percentage of U.S. energy.

This all seems wonderful and without a doubt that wind and solar can become a more important part of both our state and national energy picture, but as it stands now (according to the Energy Information Agency), they combine for less than 1 percent of our energy supply.
Certainly, what the authors promise for wind and solar doesn’t seem to mesh with reality. It’s hard to believe there’s a conspiracy here because if you could solve our energy problems with the measures they proscribe, someone would have done it or be doing it now.
America can’t run on a pipe dream. Solar and wind can help, but they will be niche players for the foreseeable future.

We at the Rio Grande Foundation spend a vast majority of our time analyzing and discussing New Mexico-specific issues and policies. But, I was given a chance recently by a national syndicate to write an opinion piece on Barack Obama’s tax plan.
With wall-to-wall coverage of the conventions and the campaigns, I humbly submit my $.02. Check the article out here.

I was away for the Labor Day Holiday this weekend and was without internet access and thus not blogging. Summer has reached its unofficial end, so we are back to work and back to blogging.
Last week I weighed in on a tax increase that voters in Carlsbad will face in just a few weeks. This is no minor tax hike, rather it is a 0.5 percent increase in the gross receipts tax rate, an increase from the current rate of 6.8125 percent rate now in place to 7.3125 percent. The money is supposedly needed to pay for repairs to the municipal water system.
The Rio Grande Foundation had previously ranked Carlsbad as the most taxpayer-friendly city in New Mexico, but if this tax hike is passed, that status will undoubtedly be jeopardized. More importantly, as I point out in an op-ed regarding the tax hike, Carlsbad might avoid the tax hike entirely by privatizing its water services. The article was picked up by Len Gilroy on his Reason blog.

Recently, the Rio Grande Foundation and CARE co-hosted a series of screenings of the film “The Great Global Warming Swindle” statewide to large audiences. You can view the film here.
Bob Balling, a climate scientist at Arizona State University gave a post-film presentation with his take on the movie. His powerpoint presentation is available here. Video of Bob’s Albuquerque presentation along with some Q and A is available below:

As the Albuquerque Journal reported on Wednesday, New Mexico Treasurer James Lewis travels as a part of his job — a lot. The Journal followed up with an editorial questioning who is paying for Lewis’s flights around the globe and to what extent those who pay for Lewis’s flights might be doing so to curry favor with the man that — as The Journal points out, “is the elected official in charge of billions of dollars in New Mexico’s investment portfolio.”
While it is hard not to read about Lewis’s inflated airfare costs — $3,600 first class to Atlanta, business to Brazil — and $2,200 in hotel charges, my question is why the State of New Mexico should be investing billions of dollars. I know it is in the Constitution, but wouldn’t the permanent fund money be better off in the hands of New Mexicans’ instead of politicians? Isn’t it the very definition of socialism to have governments to own and control businesses?
It may be impossible to abolish the office as a whole, but shouldn’t we as individual New Mexicans control whatever revenue is generated by taxes on extractive industries? Aside from that, government really shouldn’t be in the business of investing. Instead, New Mexico should adopt the Alaska model and return oil and gas money to taxpayers. This would serve another positive function by creating a constituency for ongoing mining/drilling.

During the recently-completed special session, the New Mexico Legislature passed a tax “rebate” program. As has been discussed here and elsewhere, the “rebates” weren’t so much designed to give money back to taxpayers, but to redistribute money from those who paid taxes to those who do not.
The following information underscores just who pays and does not pay taxes. Remember that rebates are only being given to those who make less than $70,000 annually.
What is the number of returns in each bracket? What is the percentage breakdown in each of those ranges of returns with payments?

Thus, those who pay 75% or New Mexico’s income taxes get nothing while large numbers of taxpayers who paid no taxes get the largest checks from the state. Not much of a “rebate” was it.
HT: Matt Kennicott

Whether you like John McCain or not, he has undoubtedly been one of Congress’s undisputed leaders in fighting Congressional pork-barrel spending. Recently, Jonah Goldberg who will be coming to Albuquerque for a breakfast and book signing hosted by the Rio Grande Foundation, wrote about how Sen. McCain could capitalize on his leadership against pork-barrel spending as a means of getting elected to the White House.
As Goldberg points out, Alaska is one of the most significant recipients of federal “pork” projects. What Goldberg doesn’t mention is that New Mexico actually gets more money out of Washington than even Alaska (according to the Tax Foundation). Maybe we can get Mr. Goldberg to write an article about the porky behavior of New Mexico’s elected leaders?
It will also be interesting to see if McCain can make his anti-pork efforts an issue in the campaign. So far, it doesn’t seem to be a prominent issue.

City Councilor Michael Cadigan has an op-ed in today’s ABQ Journal that defends the City’s practice of charging <a href="http://www.cabq.gov/council/impact-fees“>”impact fees” on development. The opinion piece was in response to Councilor Sanchez who recently questioned the economic impact of these fees when he said, “fees for the west end of Central Avenue are nine times higher than on the east end,” and that he’s “concerned that we are not getting commercial development … because of the way the impact fees work.”
Certainly, I understand why builders don’t like impact fees. We as citizens are paying taxes on a wide variety of items and yet, those who construct new buildings and developments must pay and then pass along these fees to those who purchase or lease that space. Whether or not there is any direct benefit to these people is unclear. Where the money goes that would have otherwise been allocated to this newly developed area is also unclear.
Ultimately, the problem with impact fees is that it is hard to tell who exactly benefits from them. What needs to happen is for builders to band together to construct their own internal infrastructure. Perhaps they could strike a deal with the government along the lines of a Business Improvement District that would handle such infrastructure needs privately? The problem is, once the government gets involved, there is no accountability or ability to separate “impact fees” from other taxes and spending and those who pay the fees wind up just paying another tax.
City Council is not going to solve this problem because they like taxes. Only the local development community can push Council to get rid of or limit these fees while also taking care of infrastructure needs.

News stories this week cited the fact that Amtrak ridership has risen significantly in recent months in response to high gas prices. In a free market, a record number of riders would mean record profits (or at least increased profits), but Amtrak is America’s state-owned, socialist rail system (government ownership of the means of production, in this case a railroad), so profits are not even a consideration. In fact, Illinois Senator Richard Durbin has used increased ridership to argue that more taxpayer dollars should be funneled into the rail system, in part to purchase more train cars.
As the story points out, however, rail advocates shouldn’t get too excited about the railroad’s so-called “success”: Even though Amtrak ridership last month increased 14 percent compared to July 2007, the railroad provides less than 1 percent of all trips made nationwide, as car and air travel reign. Air and rail rely far less on subsidies on a per passenger mile basis.
This one-percent is at a relatively high cost to taxpayers of more than $1 billion per year. The Southwest Chief, which runs through New Mexico is one of Amtrak’s most heavily-subsidized routes operating at a cost to taxpayers of $236 per passenger.

A few weeks ago, the Rio Grande Foundation hosted educator Ben Chavis from the American Indian Public Charter School in Oakland, CA. Chavis shared his “radical” ideas on education which included holding all minority children and children of all income levels to a high standard. You can listen to the interview we did with Bob Clark of KKOB 770 here when Mr. Chavis when he was in town for our education event in Albuquerque on July 31st.
In addition to this informative radio interview, syndicated columnist George Will had an article that appeared in today’s Albuquerque Journal and in newspapers all over the country.

The special session ended with a whimper instead of a bang this week. This means that the career of one of New Mexico’s staunchest conservatives ended as well. While Rep. Foley certainly made enemies among Democrats and some conservatives (enough to unseat him in a primary earlier this year), he also had the courage to fight for free market, conservative principles that we at the Rio Grande Foundation hold dear.
In fact, Foley laid out a model for Republican success as an opposition party (and potential majority party) during the special. He introduced a little-publicized bill, House Bill 12, that would have eliminated New Mexico’s personal income tax by 2012. While the Governor’s “rebate” plan was an embarrassment both as public policy and ultimately, politically, Foley laid out a clear vision for a better New Mexico. I might add that Foley relied on intellectual arguments (and data) from the Rio Grande Foundation in putting together his bill.
Hopefully, since Rep. Foley will not be returning to Santa Fe in January, someone in the Legislature steps forward to put ideas like fundamental tax reform on the table in the New Mexico Legislature. Thanks Dan.

In case you haven’t already heard, the special session is over. The Governor’s pared down rebate plan was pared down further so that if your family earns $70,000 or more, you get nothing. Medicaid has been expanded by $20 million which is likely to be recurring and will grow over time.
It would certainly have been better for the majority of New Mexicans — even those who will receive these miniscule rebates (on their taxes in 2009) — if the Legislature had never been called into the session in the first place, but we survived with only minor damage. It will be interesting to see if oil and gas prices rebound, thus generating a real windfall for the state or if they continue their recent slide, thus wiping out this supposed windfall that Richardson used as an excuse to call the session in the first place.

My former colleague at the National Taxpayers Union, Andrew Moylan, had an excellent op-ed in the Wall Street Journal recently which discussed yet another often-overlooked reason to open new areas to domestic drilling: a gusher of tax revenues.
As has been made abundantly clear in New Mexico during this special session, this state relies heavily on oil and gas revenues for tax revenues. We’re not alone. The federal government also collects billions of dollars annually from oil and gas and, as Moylan points out:

The potential federal revenue from Arctic National Wildlife Refuge (ANWR) oil development is $191 billion over 30 years — roughly $18.36 per barrel, based on projections of recoverable reserves. Applying that formula to the 107 billion-plus barrels of recoverable oil that federal agencies estimate is in ANWR, the nearby National Petroleum Reserve and offshore tells us that sensible drilling could yield nearly $2 trillion in overall revenue over 30 years, or an average of about $65.5 billion per year.

Additional domestic oil and gas drilling is already a “win, win.” As Moylan concludes, “More supply, lower gas prices, greater energy security, and lower taxes. What are we waiting for?”

I was down in Alamogordo over the weekend and had the opportunity to stop by and visit with Mike Haymes and the gang over at AM 1230. Check out the podcast from August 15 (at the bottom of the top-most list) at this page. We discuss the proposed Spaceport tax increase for Otero County, the special session, and an array of other topics.

With all of the hullabaloo over the Presidential election and US Senate and House races, voters in and around Albuquerque may not be aware that they could face higher taxes if they and their fellow voters approve a tax increase for the RailRunner and “other transit projects.” Recently, the New Mexico Independent did a story on the vote complete with quotes on the issue from yours truly.
My basic arguments from the article follow:

Even if gas hits $5 or $6 a gallon, Gessing said, not enough people will use the Rail Runner to reduce congestion on I-25 or warrant the train’s high operating cost. “We’d be much better off maximizing bus service,” he said, by running more buses and taking riders directly to the places they want to go, such as Albuquerque’s West Side, rather than to fixed stations.
Though his group will fight the tax proposal, Gessing said he isn’t sure whether it will pass or fail. “People don’t like to raise taxes, especially in tough economic times. But there are a lot of people who can’t get enough mass transit,” he said. “There’s something that warms the heart of a lot of people to see a bus on the street, even if they don’t use it and it’s only partially full.”

I have publicly supported Governor Richardson’s plan to use this special session to give tax rebates to New Mexicans. Under the Governor’s original plan:

New Mexico families would receive an income tax rebate from the state of between $150 and $75. Those with family incomes below $60,000 and no children would receive $150 while families making more than $70,000 would receive $75. Having children would result in additional refunds, with lower-income taxpayers receiving more than higher earners.

As I pointed out, this was less-than-optimal because it actively penalized those who make more money, but since everyone got a rebate it was still a good plan.
Unfortunately, under the Governor’s revised plan which was outlined in today’s Albuquerque Journal(subscription required), the Governor, in response to revised oil and gas revenue numbers, has decided that no taxpayers with family incomes above $80,000 are deserving of a rebate.
There’s nothing at all wrong with giving rebates to all taxpayers — in fact we encourage it — but the idea that families who make more than $80,000 (upper-middle class, but by no means wealthy) and pay higher taxes, is absurd. In fact, this transforms an otherwise viable rebate plan into nothing more than another welfare program.
Unless the rebate plan is revised in order to include all taxpayers, we’d be better off if legislators simply went home right away and the special session was aborted before it got off the ground.

Watch Nancy Pelosi dance around the issue of offshore drilling in the video below. As I’ve noted before on this blog, Congress must act before Election Day to renew the offshore drilling ban or it expires. Pressure on Pelosi and others will keep offshore drilling and homegrown energy sources on the agenda.

Keeping track of what is happening in Santa Fe during the legislative session can be a real chore. Special interests, media outlets, and those with highly paid lobbyists are often the only ones capable of keeping on top of what is going on. Worse, even if you can track how particular legislators are voting on the issues, you often need a law degree to figure out what bills actually mean.
In order to allow individual New Mexicans (and media outlets/bloggers that don’t have the time or resources to send a dedicated staffer to Santa Fe) to keep track of what the Legislature is doing, the Rio Grande Foundation has created a new online resource called New Mexico Votes. The website, which can be accessed at www.NewMexicoVotes.org is being made public just in time for the special session which is set to begin on Friday. Read the Foundation’s press release to find out more about more about how to take full advantage of New Mexico Votes during the special session and beyond.

Many readers of this blog undoubtedly attended the Rio Grande Foundation/Educate New Mexico screening of “Flunked, the Movie” on July 31. If you missed the event, you may want to check out the video below of the discussion with educator Ben Chavis, a star of the film, Steve Maggi, the film’s director, and President of the Rio Grande Foundation Paul Gessing.
The video is in two parts and represents our first foray into the medium. Please let us know what you think: info@riograndefoundation.org

By C. T. Carlson
CTCarlson@gmail.com
Some property owners say city zoning decisions are trampling on the property rights of individuals and could cost taxpayers millions of dollars. Several current lawsuits highlight a growing number of city property owners who are forced to consider litigation due to city officials changing zoning uses through revisions, sector planning or other zoning changes.
The most costly City zoning change to taxpayers is the nearly 13-year old lawsuit where in February, the New Mexico Supreme Court reversed a Court of Appeals decision that had set aside an $8.3 million jury verdict in favor of Albuquerque Commons Partnership. This means the high court agreed with a District Court decision that the city was in the wrong and should pay the development company millions for the loss of its property rights.
The property at issue is the site of the former St. Pius High School on Louisiana Boulevard and Interstate 40. Part of the property has since been developed by different owners as the new ABQ Uptown shopping district somewhat similar to a retail site the Partnership proposed in the mid-1990s.
In 1995, the Albuquerque Commons Partnership’s development plan complied with the sector plan in place at the time the property was leased. Within months a new sector plan was approved and the partnership’s site development plan no longer complied.
In the lawsuit the Partnership argued the city down-zoned their property during a sector plan revision. Down-zoning means to alter a property’s usage so that it is more restrictive. According to city briefs, sector plans are a regulatory tool which provides policy and regulatory guidance for development within its boundaries. The plan adoption sets land use, design and development standards to ensure development outcomes that are more predictable for the community and affected stakeholders, and supportive of the community’s goals for the area.
According to the partnership’s attorney Timothy Flynn-O’Brien, the $8.3 million verdict plus interest, fees and other costs, means the city could have to cough up more than $10 million. This, he said, may cause the city to have to seek an increase in taxes specifically for this verdict.
Flynn-O’Brien said one problem driving these costs is that economic viability of sector plan revisions is not a part of the city’s planning process. This can lead to sector plan changes, or other zoning revisions, that adversely affect property values without notice or due process.
“With all the money they spend on the plans they should hire an economist to look the plans over to show whether the plan will actually work,” Flynn-O’Brien said.
Flynn-O’Brien says the city down-zoned the Partnership’s property in particular when it adopted the revised sector plan due to neighborhood pressure.
Sector plan revisions do not require the governing body to give individual notice to property owners when zoning is changed. It only requires a general public notice of the planning process.
Acting City Clerk and Deputy City Attorney Randy Autio said it is always controversial when zoning is revised. He said city planners try to be respectful of private property rights.
Other land use attorneys say these types of cases are happening with increasing frequency. “We see these things time and time again where legislative authority is used to change zoning,” Attorney David Campbell said. “The magnitude of the damages in the partnership case is unique. But it is not unique to have a local government change the rules in the middle of the game.”
Campbell said he alone takes more than a dozen cases a year around the state. Most of the cases follow the same fact pattern where government decision-makers are more beholden to groups of neighbors who vote instead of defending private property rights.
“It appears that neighbors or adjacent property owners get the ear of their governing body representative to cause a change in expectation to take place,” he said.
Another example, Campbell said, is the controversial Vista del Norte property on Osuna on the city’s north side where a developer wanted to bring in a Wal-Mart Supercenter.
“The only thing that the property owner really needed to do was pull a permit as the land already had the correct zoning,” Campbell said. “But the city council heard a great cry from some in the nearby neighborhood that they did not want a Wal-Mart on that piece of property.”
In response the neighborhood City Councilor Debbie O’Malley fired a double-pronged salvo and introduced a law against “big box” retailers, and legislation that the property should be preserved for hot air balloon landings. The effect was to change the zoning conditions so that the property owners could no longer comply with existing zoning and build a Wal-Mart. Whether intended or not, this reduced the value of the land.
The city recently closed on the deal to buy the land for about $5 million for a balloon landing park. The developer will have about five acres of light commercial developable land at the front of the property. The 22-acres were appraised at about $7.1 million at the time.
“The government and city councilors are in a tough position. They are elected by people to serve their district but are not explicitly elected to preserve people’s property rights,” Campbell said. “Politics come in and they start using their legislative authority to change site specific land uses to please what they perceive to be a large block of voters.”
Campbell agreed with Flynn-O’Brien that the city should protect property rights during sector and other plan revisions by conducting an economic analysis before making zone changes and effectively “taking” private property with backdoor down-zoning. But according to the city’s own zoning code, “the cost of land or other economic considerations pertaining to the applicant shall not be the determining factor for a change of zone.”
Attorney Paul Kienzle also handles zoning cases for property owners. He thinks inconsistency is also a problem with the city’s zoning decisions. “In the zoning arena things should be consistent, but it is not consistent from neighborhood to neighborhood or even across streets,” Kienzle said. “It is the taxpayers and developers who end up being hit hard by this inconsistency.”
Whether the inconsistencies are the result of parochial politics is an open question. Kienzle said individuals and the free market are better suited than government to make land use decisions.
“I believe in the free market over government dictation,” he said. “This would resolve a lot of issues.”
In another unsettling and expensive zoning case, some Volcano Cliffs property owners on the city’s West Side have been at odds with the city over zoning and development issues for decades. Two potentially high dollar lawsuits are pending. In one inverse condemnation case, more than a dozen land owners had their undeveloped property outright down-zoned to open space during its sector plan revision. In another case property owners say the city council acted outside of its power when it unilaterally changed the Volcano Heights Sector Plan. Some of the contested changes include “cherry picking” certain pieces of property for open space, according to court documents.
Flynn-O’Brien claims the changes were done outside of the city council’s powers, state and constitutional law. Other legal issues include that it was not under city council purview to change the sector plan which was approved by the city council, but without the approval of the city’s Environmental Planning Commission. The sector plan leaves up to 70-percent of the properties undeveloped. Flynn-O’Brien said that all of this goes above and beyond the city’s private property zoning powers.
“My clients can not sell their land after they were designated for open space,” Flynn-O’Brien said. But the city argues that they may not be liable because the land was not technically “rezoned” as open space but only “targeted” as open space.
Former Albuquerque City Council member and attorney Sam Bregman is one of the three attorneys representing the Volcano Cliffs Property Owners Association. He says the city council did not follow the law in making those zoning decisions but instead dictated what they think should happen with other people’s property without consideration of personal property rights.
“The city council needs to get a clear education from the city’s legal department on private property rights. Otherwise the problem will continue and it will be very expensive for both the taxpayers and the property owners,” Bregman said. Bregman said he gets at least one call a week from city property owners who have potential zoning abuse cases.
“There is a high number of property owners who can not afford or do not understand
the process to defend their rights,” Bregman said.
Volcano Cliffs attorneys claim that the city could end up paying property owners more than $30 million to resolve Volcano Cliffs litigation. City officials dispute that amount.
“It is becoming very expensive for the city to pay lawyers to defend the city’s bad zoning decisions then to have to pay out the judgments,” Bregman said. “I don’t think anyone is against sound reasonable development which we need in order to grow, but not at the expense of personal property rights.”
Carmen Marron, the city’s division manager for planning and urban design, said there are currently ten sector plan revisions being worked on. There are two other zoning studies that are ongoing, and two other Metropolitan Re-Development areas under going planning revisions. Marron said it is usually a city council member who brings forward an idea of revising a sector plan.
City planning spokeswoman Deborah Nason said that the city planning department has spent more than $2.5 million in the last three years on outside planning consultants for sector plan revisions. This amount does not include any monies appropriated by individual city council members for their district sector planning.
Randy Autio said it was hard to gauge what the city spends on city legal staff and contracted attorneys to defend zoning lawsuits. “There are some cases that have been in the system for years,” Autio said. “The 900-pound gorilla case is the Albuquerque Commons case.” Autio said it has cost the city at least $1.8 million so far to defend the Albuquerque Commons Partnership case. And it is not over yet.
“When the city does pay out on the case it will either take the money out of a pre-existing “risk fund” set up to pay for judgments or the city council will take a vote to raise the tax rate,” Autio said.
He said the average annual cost to defend a case is about $150,000.
Earlier this year the city council approved $667,000 in fees and expenses to five outside contracted attorneys to defend a handful of pending city legal issues. According to the city’s current budget the legal department which includes the city clerk’s office has an annual budget of about $5-million, with about 80+plus employees. Autio said there is one full-time and two part-time attorneys who focus on zoning litigation. He said staff attorneys make between $50,000 to $70,000 annually. Head division attorneys make upward of $100,000.
To stay on top of the city’s planning process log on to www.cabq.gov and go to the Planning Department link. For more information on the Volcano Cliffs area log on to www.vcpoa.com.

After failing to gain either legislative or popular support for his ambitious, universal health care plan which would have relied heavily on government mandates, Governor Richardson has introduced a scaled-back health care reform proposal that will be considered in the upcoming special session.
The Governor’s plan would:
• Require all children through the age of 18 to have health care coverage from private or public sources. The bill contains no enforcement mechanism or penalty for parents who don’t secure coverage for their children.
• Appropriate $58 million to expand existing programs to reach an estimated 50,000 children who qualify for publicly funded coverage but don’t receive it. The additional spending would recur annually, Hyde said.
• Establish a new Health Care Benefits Administration to consolidate management of several existing public coverage programs, including state employee and public retiree insurance plans.
• Gradually limit premium increases insurance companies can charge small businesses from 20 percent today to 10 percent per year in five years.
• Require insurers to spend at least 85 percent of premiums on services and guarantee that anyone who needs insurance can get it regardless of health status.
• Establish privacy requirements for patients’ electronic medical records.
While this scaled-back proposal is a significant improvement over the Governor’s original if only because it is scaled back, legislators should still be skeptical as to whether the proposal, if passed, would result in any improvement in New Mexicans’ health care or uninsured rates.
Specifically, requiring that parents obtain health care for children through the age of 18 is bound to be ineffective as there is no enforcement mechanism, but this is actually a good thing. After all, responsible parents want their children to be covered, but not all parents are responsible and many others either can’t afford it or believe that putting food on the table and gas in their car to get to work is more important than health insurance for their children.
Spending $58 million to put more children who already qualify for government health care on government plans is also a poor option. Rather than spending $58 million every year for more welfare, how about giving parents an equivalent tax break to set up Health Savings Accounts for their children?
Regarding efforts to set up a Health Care Benefits Administration, limit premium increases, and set up arbitrary requirements for insurers, these are nothing more than means to further impose government control on the health care sector of New Mexico’s economy. New government agencies and micromanaging the insurance industry are not going to result in significant improvements in either the quality or availability of health care in this state.
The fact is that government policies are largely to blame for the current health care mess. Did you know that New Mexico charges the highest tax on insurance premiums in the nation (4.003%)? How about eliminating New Mexico’s gross receipts tax on deductibles and co-pays which are tax-exempt in almost all other states? This tax which in some places exceeds 8 percent in some areas of the state is applied to this ever-increasing area of health care expenses.
The aforementioned ideas are just a few ways in which the negative impact of current government policies could be mitigated. They would also be far more likely to succeed in expanding health care access to the greatest number of New Mexicans.
While the Governor should be applauded for scaling back his mandate-heavy original proposal, the Governor’s scaled-back proposal still moves us towards an increased government role in health care. Hopefully, legislators will again reject more government reliance and instead consider market-based reforms outlined above in the upcoming 2009 legislative session.

Several months ago I wrote on this site about dog health care vs. human health care. John Goodman, one of the nation’s free market health care analysts has picked up on that theme on his NCPA health blog. Check out his posting here.
As Goodman points out:
Why does the market for pet care seem to work so much better than the market for human care? Not that I pay a great deal of attention to such things, but I believe it’s fair to say that:
* No one is saying the market for pet care is “broken” or in “crisis.”
* No one is saying that the market cannot work for pet care.
* No one is calling for mandatory pet health insurance.
* No one is calling for single-payer health insurance for pets.

Massachusetts developed a bad reputation as “Taxachusetts” back in the 1980s. This November, voters in that state will have be voting to completely eliminate that state’s 5.3% income and wage tax, as well as the state capital gains tax, which reaches as high as 12%. The ballot initiative would replace the $12.5 billion in taxes with . . . nothing.
As the Wall Street Journal points out:

The referendum may seem the longest of long shots in a state represented by some of Congress’s biggest spenders. But the same initiative was on the ballot in 2002, and though the political establishment roared with laughter through Election Day, the measure got 45% of the vote. This time pro-tax forces such as the Massachusetts Teachers Association are planning to spend millions of dollars warning of Armageddon.

As I discussed in our recent policy paper, New Mexicans would be wise to consider following Massachusetts by seriously considering elimination of the personal income tax. It would be great if New Mexico had the initiative process which has allowed citizens of Massachusetts to put this issue on the ballot, but we don’t. That said, it is my understanding that legislation will be introduced in the Special Session (which begins next week) to phase New Mexico’s personal income tax out.