2021 FEB. 6 ISSUE: MORATORIUM ON PERMITS FOR CASITAS, SHORT-TERM RENTALS

Responding to villagers’ concerns that Corrales’ long-standing one-home-per-acre policy is consistently being circumvented, the Village Council has imposed a six-month moratorium on permits to build secondary dwellings on lots and on applications to operate short-term rentals. After substantial public comment at its January 26 session, the council voted five-to-one to impose the 180-day moratorium noting that “the size of accessory structures is virtually unregulated, sometimes resulting in what appears to be two homes on one lot,” and that such residences “are being utilized for the commercial purpose of providing short-term rental accommodations.”

The approved resolution noted that “the proliferation of loosely-regulated accessory structures being used as short- and long-term rentals has the potential for far-reaching deleterious effects on the village, including negatively impacting neighborhoods with greater numbers of vehicles and persons not previously present and increasing the effective density above that permitted or intended in the A-1 an A-2 zoning districts.”

Much of the discussion during the Zoom meeting, to which at least six listened in as audience, focused on the perceived need for a moratorium when the same issues are being addressed by planners with the Mid-Region Council of Governments (MRCOG) through a contract with the Village approved last month.

The lone hold-out member of the council who objected to the moratorium, Councillor Zach Burkett, said he thought the resolution was “duplicitous” because its stated purpose is to allow time for the Planning and Zoning Commission to analyze the problem and come up with recommended fixes, “but this is exactly what MRCOG is supposed to be doing” by the end of the year.

The problem has been recognized for years, even decades, but it has become more acute with the advent of Airbnb and other short-term rental opportunities. Going back to the 1980s, pressures to bust the prohibition against higher residential density were expected to intensify when the Village installed a sewer line, thereby obviating groundwater pollution from septic leach fields. But nowadays, the pressures actually come from neighborhoods not served by the wastewater system, especially where new homes are built on vacant lots. The current controversy apparently erupted over a new home being built on West Ella Drive last year. (See Corrales Comment Vol.XXXIX No.13 September 19, 2020 “West Ella ‘Casita’ Draws Neighbors’ Ire.”)

Construction of a large “casita” next to a new home underway at 489 West Ella Drive last summer riled neighbors, including the mother of former Mayor Scott Kominiak. The new home construction site on West Ella Drive is at least the third project in recent years where a house and “casita” have been built simultaneously in seeming contravention of the one-dwelling-per-acre regulations.

Corrales’ laws allow “casitas,” or guesthouses, on a one-acre lot, as long as the secondary residence does not have a full kitchen. And the builder at 489 West Ella, Wade Wingfield, assured Corrales Comment that the “casita” there complies with that rule. “You can have a separate living quarters as long as it doesn’t have a fully-functioning kitchen,” Wingfield said August 11, 2020. “You can have a refrigerator, a microwave, a sink and anything else, but you just can’t have a stove and oven.”  Wingfield said he had obtained all the permits and approvals needed through the Corrales Planning and Zoning Department.

However, one of the main protesters against Wingfield’s casita, Mary LoGuercio, has provided photos to Corrales Comment and Village officials of the interior which show a kitchen area under construction plumbed for a full kitchen, including stove vent and gas line stub-out. LoGuercio also forwarded a 2018 email from former Village Attorney John Appel referring to a similar dispute with the same builder, Wingfield, erecting a guesthouse in the Tierra de Corrales neighborhood.

Appel’s memo to the mayor and to the Planning and Zoning Commission reads as follows, in part. “I just wanted to alert you to an issue that could become ‘significant’ in the near future. Yesterday [P&Z Administrator] Ms. Stout, on [Village Administrator] John Avila’s instructions, called me during a meeting with developer Wade Wingfield to address a proposed 1,100-square foot ‘casita’ (open-plan living area, kitchen, bedroom suite with bath, storage room, carport) that was proposed as an additional structure on a lot in Tierra de Corrales that already has a house on it.  “Mr. Wingfield’s asserted reasons why this second home on a one-acre lot in the A-1 zone should be allowed (my paraphrase, of course) were:

• He himself had just such a ‘casita’ on his own lot, approved by C. Tidwell.
• Manuel Pacheco had been consulted about this proposed ‘casita’ and said it was fine.
• The homeowners’ association had approved it.
• Such structures had always been allowed up until some change in the Village Code during the past two or three years.
• It was all still one family, because the present (elderly) residents were going to move into the new casita and let their kids and families live in the big house.
• ‘Life style’ changes make it necessary for the Village to change its policies to allow these sorts of structures.
“My responses to Mr. Wingfield were, basically:
• If he has such a casita on his property, his property is in violation of the Village Code.  (Unless it was grandfathered before about 1987, which I doubt.)
• If Mr. Pacheco said this was OK [and I expect he probably did], Mr. Pacheco was incorrect.
• Homeowners’ association decisions under the covenants are irrelevant.
• There has been no such change in the Code.”

Former Village Attorney Appel continued his explanation regarding Wingfield’s assertion that is permissible to build such a guesthouse. “Two houses on the same lot are two houses on the same lot. Period.  Doesn’t matter who lives in them.  And, of course, what are they going to do with the ‘casita’ after Mom and Dad die?  Tear it down? Of course not. It becomes a rental property. That’s the huge fallacy with this ‘family accommodation’ argument that we keep hearing.

“I refused to waste my (Village-compensated) time listening to Wingfield’s “life style” argument.  I told him if he wanted to change the Village Code, he needed to talk to his councillors.   “Just wanted you to know about this, since I expect we have probably not heard the last of it.” Before the council imposed the moratorium, they heard or read statements from villagers giving both sides of the controversy.

One of those was from builder Norm Schreifels of Sun Mountain Construction who wrote, “It has come to my attention that there are those in the village as well as council members that are trying to impose a moratorium on the construction of casitas. I have several upcoming construction projects that are casitas for family members of my clients and was told that I will not be allowed to obtain a permit for the casitas.”

Schreifels forwarded to Village Clerk Aaron Gjullin and Councillor Zach Burkett what he said is in State statute that specifically allows such casitas “which cannot be overridden by local municipalities. The law not only allows for casitas for family members but it also allows for a second kitchen.

“I am aware of why this has become a concern, and hope that one occurrence by a certain builder does not reflect on all builders. I have built many casitas and outbuildings here in Corrales and the neighbors didn’t have any concerns or objections. The casitas were considerably smaller than the main house, and the total area never exceeded the allowable percentage of construction that is allowed by the Village of Corrales.

“A way that we have done this in other areas is to have the homeowner sign a letter stating that the casita is to be used by family members and not as a rental.” Presenting the other side was a letter from Bob Pinkerton, who resides along Dancing Horse Lane. “My concern is with the apparent speed that accessory dwelling permits and short-term rental permits are under consideration without a real, focused study of impacts to our village and maintaining our rural heritage per the Corrales Comprehensive Land Use Plan.

“[I] strongly urge adoption of Resolution 21-03 moratorium on all accessory building permits and short-term rental permits until conditions and procedures are thoroughly studied with due care and diligence, precluding adverse effects upon our village. Foisting partially thought-out permit procedures in a rush to approve is absolutely out of character, and detrimental to the citizens, homeowners and residents of the Village of Corrales.”

At the council meeting that adopted the moratorium, no mention was made of the casita project on 489 West Ella. The former mayor’s mother, Patricia Kominiak, was one of six villagers who wrote to Mayor Jo Anne Roake on August 13 last year protesting the project on West Ella. Others were Charlotte Anderson, Dan and Estelle Metz, and Joe and Meryl Hancock.

“Secondary dwellings, guest houses or ‘casitas’ are simply not allowed in our land use codes, and it is therefore a mystery to us how the Village would issue a permit for such development, yet you appear to be doing so,” they wrote. “Multiple inquiries to the building inspector about this question have been effectively ignored. No information has been made available about the project in question, and it was not until construction was well underway that the problem became apparent to us and our fears were confirmed.”

At the time, Corrales Planning and Zoning Administrator Laurie Stout explained how the casita on West Ella gained approval, and suggested the Village Council may re-visit the rules in the months ahead. “In Section 18-29, the definition of dwelling unit in Village Code states: dwelling unit means any building or part of a building intended for human occupancy and containing one or more connected rooms and a single kitchen, designed for one family for living and sleeping purposes.”

The definition of kitchen, she added, “means any room principally used, intended or designed to be used for cooking or the preparation of food. The presence of a range or oven, or utility connections suitable for servicing a range or oven, shall be considered as establishing a kitchen. “This means a second structure on a lot, as long as there is no range or oven (or utility connections for such) meets the letter of the law in Village of Corrales Code. Contractors can and will exploit this loophole if their clients request.”

Stout said the mayor and council may try to tighten up relevant regulations. “Potential options in Corrales could be looking into limiting the size of the accessory unit, requiring that it merely be an addition to the home, etc. The intent of the N.M. Statute is to allow family members, such as elderly parents, to live on-property with their relatives.

“The reality is that often at some point the separate structure ends up having a kitchen added retroactively, and that structure eventually becomes a long-term rental with a tenant —thus becoming a zoning violation.” The council’s moratorium adopted January 26 reads as follows, in part. “Be it resolved by the Governing Body of the Village of Corrales, that:

1. Beginning on the effective date of this Resolution there shall be in force a 180 day moratorium on the acceptance, review, or consideration of any new applications, including but not limited to land use applications, building permit applications, and business registration applications related in any way to the development, erection, or establishment of an accessory structure built or modified to accommodate human habitation.

2. Beginning on the effective date of this Resolution there shall be in force a 180 day moratorium on the acceptance, review, or consideration of any new applications, including but not limited to land use applications, building permit applications, and business registration applications related in any way to the development, erection or establishment of Short-Term Rentals in an existing or planned accessory structure.

3. The moratorium imposed by this Resolution shall not be deemed to affect the status of any facilities existing and operational in the Village, nor permits having been properly issued on the date of adoption of this Resolution.

4. During the time that the moratorium described in the foregoing sections of this Resolution is in place, the Village of Corrales will exercise due diligence and work in good faith with the citizens and interested parties to develop and implement balanced and workable public policies relating to these issues.

5. During the time that the moratorium described in the foregoing sections of this Resolution is in place, the provisions of this Resolution shall prevail and have precedence over any contrary or inconsistent provisions of any prior ordinance or resolution of the Village; provided, however, that the provisions of prior ordinances and resolutions are not deemed to have been repealed by this Resolution, and shall remain in full force and effect to the extent not inconsistent with the provisions hereof.

6. The moratorium enacted by this Resolution shall terminate and be deemed repealed in its entirety on the date that is 180 days after the effective date of this Resolution, unless otherwise specifically provided by resolution or ordinance duly adopted by the Governing Body subsequent to the effective date of this Resolution.”