A Replat Too Far: Controversial Skywater Subdivision Request Unanimously Voted Down
A Replat Too Far: Controversial Skywater Subdivision Request Unanimously Voted Down
Three trustees call for Jim Maynard to step down as a trustee and mayor pro-tem after denying replat request for Skywater development
On a cool September night, the Village Chambers heated up with a lively discussion of the Skywater Subdivision Replat request.
The monthly council meeting lasted just over four hours—let us save you some time with a recap.
This report on the September Village of Cloudcroft Council meeting covers:
A Dramatic Third Act
Nearly three hours in, during Planning + Zoning Commissioner Jessica Beach's presentation, the meeting took a theatrical turn.
Mayor Pro-tem Jim Maynard took the floor on behalf of All Family Partners, L.L.C., presenting a summary of three replats of the Skywater Subdivision lots directly behind Cloudcroft Brewing Company.
Cloudcroft Reader recently investigated the replats and how they were signed and recorded. After raising the issue with the mayor about the process used in the previous administration, Mayor Turner looked into the matter and decided that the property owners needed to re-file the request through the proper channels, starting with the Planning + Zoning Commission and then ultimately with the council itself.
The resubmission led to the replat request coming before the Council for approval.
The healthy discussion surfaced lingering frustration some officials felt over how the replats had been sought — and executed — last year under the Bill Denney administration. The attorney for the Village, Jefferson Rhodes, and the attorney for All Family Partners, L.L.C, John Wheeler, agreed the prior replats were invalid and the proper approval process had not been followed.
Before getting into the play-by-play, here is the bottom line:
Trustee Gail McCoy motioned to approve the replat summary—which failed due to the lack of a second. Trustee Maynard was recused from voting.
Trustee Tabitha Foster then motioned to deny the replat request pending a workshop to review the Skywater contract with the village. The motion passed with Trustees Foster, King, and McCoy unanimously voting to deny.
After the meeting, all three voting council members told Cloudcroft Reader they believed Maynard should step down from his position as Trustee and Mayor Pro-tem.
So, What Happened?
Not long into the All Family Partners, L.L.C. Presentation, which summarized former plats A, B, and C, the village council and P+Z commissioner drilled down on the issue.
Beach said, “The final replat for the original Skywater subdivision was approved in February 2012. On August 16th, 2022, they did apply for a zoning request to change lots from R1 to R2. The zoning request at that time was denied.”
Beach continued,
“Replat A was the first one to be done, and that was done in March of 2023. That was lot line adjustments reducing the number of R1 blocks to seven and [Maynard] increased the acreage of R2 and added a private road with access from Victoria Street to Skywater. That replat was not approved through Planning and Zoning or the village council. Mayor Denney signed off on the replat along with Barbara Garcia.”
“Replat B was Block 6, and that one was replatted on September of 2023. On that one, there were more lot line adjustments, more added to the acreage of R2. The same situation happened there. The report was signed off by William Denney and Shaela Hemphill; it did not go through Planning and Zoning.”
"It did say on the replat that it was going by the alternate procedure. It wasn't done by the alternate procedure because it wasn't approved by the council.”
“Replat C is Block 6. It was recorded in December, 2023. That was more large adjustments to the road, still there off of Victoria Street and Skywater. And the same thing happened on that replat. It stated that it was done through the alternate procedure, but it wasn't. Bill Denney and Shaela Hemphill signed off on that replat.”
Let’s Hear from Legal
Trustee Tim King spoke up, asking Maynard why he didn’t go through the proper procedures three different times in 2023. He expressed concern that this was an end run.
King then asked Attorney Jefferson Rhodes (who is retiring at the end of the year after 53 years of serving as Village Attorney) if the three replats done in 2023 were legitimate.
According to Attorney Rhodes, they were not.
He said,
“Let’s go back to the beginning. As I understand it, they are now recorded in Otero County. Three requests that were signed off right there with no other action. They’re a nullity. It’s like it doesn’t exist. Instead of the alternate procedure, you’ve got a full new procedure that you’ve gotta do. The alternate procedure was not appropriate for A, B, and C.”
Attorney John Wheeler, who represents Jim Maynard and All Family Partners, agreed. Wheeler addressed the crowded chamber, saying,
“So what I think Mr. Rhodes is saying, and correct me if I'm wrong, but the replat A, B, and C, they were done incorrectly, and it's like they no longer existed.”
“So you're back at the original 2012 subdivision. So that's what the law is right now. You've got a subdivision that was approved properly in 2012, and that's what you're at. And what Mr. Maynard is asking is, I'd like to make some changes to the subdivision, and all of those changes are on that plat that's here before you tonight.”
“And those changes can be made according to the alternate procedures. So you've got a 2012 subdivision. He's asking for certain changes, and those can be made pursuant to the alternate procedures.”
“So it was done incorrectly. Where do we go from here?”
“Is this proposal that's before you tonight better than the original 2012 subdivision? And I would suggest to you that nobody has said otherwise. Does it meet all of the requirements that are in your subdivision ordinance? Yes, it does. And I think you would be shooting yourself in the foot if you turned down this proposal just because it had been done incorrectly previously. If it's better than what was there to start with. You'd really be doing your constituents a disservice to disapprove it.”
Setbacks, Reading, and Contracts
It became evident in the discussion that Trustees King, Foster, and McCoy were all frustrated.
Trustee McCoy said she felt “let down” by Trustee Maynard’s actions.
At length, Beach and the council questioned the setbacks, easements, minimum square footage, the creation of a private road, and other aspects of the redrawn lots.
Gail Percich, spouse of Trustee Tim King, spoke from the audience. She said, “I think the question is, Why did you bypass the council on this? And then leapfrog to the mayor and the clerk. That's the real question.”
Maynard replied,
“We can go back and try and say, Okay, what were my thoughts on that day? When I read this, ‘subdivision does not include a division of land resulting only in the alteration of parcel boundaries where parcels are altered for the purpose of increasing or reducing the size of contiguous parcels and where the number of parcels is not increasing.’ When I read that, nothing else in subdivision matters because it specifically says, ‘however, subdivision does not include this.’”
“Now, I can read it one way; you can read it another.”
Maynard requested in August 2022 that the Village rezone the lots in question to ‘R-2,’ allowing for multi-family development. At the meeting, property owners in the Skywater subdivision strongly opposed the zoning change request, which the Council voted unanimously to reject.
Trustee Tabitha Foster said,
“I was in attendance at the August 2022 meeting when all of the community came out and said we're not happy with the rezone. And so some of the questions that I have are: how do we want our village to look in the future? Do we want houses on top of houses? And we keep using the old thing of, well, this is the way we've done it.”
“Well, obviously, the way that we have done it is not the correct way. I mean, we have cesspools, we have houses, you know, that current lots that are under the 4,000 [square feet.] And so I think we need to make a new standard.”
Commissioner Beach addressed the council, “If you do approve it, he will still be required to go under contract with the Village of Cloudcroft to make sure that under 10-4-1, it says ‘contract required, the supervisor shall be required to enter into a contract with the village agreeing to abide by and comply with the layout of the drawings as finally approved and also plans and specifications as approved.’ Then there's a list of different things regarding the sewer and utility lines. So if you approve that, we still have to go under contract.”
Attorney Rhodes said,
“I can't help but mention the thing about the contract. In the Title 10 subdivision regulations, it has seven different chapters.”
“The contract required is in Chapter 4. It does not exclude alternate procedure. You are a subdivider whether you are doing an original subdivision or you are using the alternate procedure. That's a good question. And that's the answer to it.”
“All I'm saying is that if there's anything in Chapter 4, the disclosure statement, if there's anything in there that's going to happen in the future, building sewer lines, building water lines. We're going to be metering out of the houses. We're not going to have one meter in that room. You're responsible for all.”
Trustee Maynard replied, “I'm trying to understand what you want done.”
Trustee Foster said, “I would like to know if there is a current contract on file with the village for Skywater. Because it does say, ‘the subdivider shall be required to enter into a contract with the village, which shall be renewed annually and shall contain, among other provisions’…I don't know if I can make a motion until I have that because then that will maybe answer some of the questions that I have about the land use and maybe answer some of the questions that the constituents had.”
Maynard: “So what you're asking for is a copy of the contract from a subdivision we did about 12 years ago.”
Foster: “Well, we're supposed to review it annually, so yes.”
That said, the Mayor entertained motions from the Council. Trustee McCoy expressed concern about the 2023 Replat filings but felt the R-2 zoned section of the subdivision might offer affordable housing options for locals. She made a motion to approve. No one seconded.
Then, Trustee Foster motioned to deny the replat request. That motion passed unanimously, this time with McCoy joining King and Foster.
The Council Postgame Interviews: Calls to Step Down
After the meeting, when asked if he was surprised by the outcome, Trustee Jim Maynard said, “You know, there's always a chance of one vote or the other. The thing that will end up deciding it is whether it complies with the ordinance or not.”
Maynard: “What happens sometimes in the discussion is you get a lot of emotion. And the emotion is good. It's good to get it out. We're all human. We're all volunteers. And then, in the end, if we are compliant with the ordinance, the plat will work.”
“It's a lot of work and expense. It's wasted. So that's punitive in its own right. As a landowner, when we submit a document to the mayor of a municipality, beyond that point, we don't control the outcome. The mayor's scheduled meetings like this. The mayors control the agendas. So if a mayor takes a path and says this is fine, then the landowner doesn't have a recourse. You want the work done or not. So now obviously in hindsight, we've wasted a lot of money.”
“And we are compliant with the ordinances. And the work. They're not arguing about the work. They're arguing about why didn't we do this six months ago.”
“People will read into any situation whatever they want to. Again, as a landowner, we submitted a plan. Beyond that, it's up to the administrative body. And the mayor is the Chief Executive Officer of the village government.”
“When Skywater was approved, it took 16 grueling public meetings. Even though it was code-compliant in the first meeting, and that's just the nature of the beast.”
Cloudcroft Reader: When you say nature of the beast, what do you see that beast as?
Maynard: “Small towns are hard to do business in. Everybody's got an opinion. And we encourage that. I welcome that. It's okay. We're not mad at anyone. They have a right to their opinion. We're all volunteers. Everybody in the audience. They've got a right to see it how they see it. That's what makes us different in the world.”
“Again, when I read this (ordinance) book, you can read one page and it'll allow something. You go a chapter or two back, and it'll disallow it.”
“It's not black and white.”
Cloudcroft Reader: Do you feel confident that, when you come back and address the issues raised tonight, you'll have a solid proposal?
Maynard: “Yes. It's within the ordinances. And it's the very nature of replat is a realignment. You don't usually realign things to make a new mistake. You try and realign things to correct a mistake you made at some point in the past. So this is more a discussion on procedure than it is on result. Jessica (Beach, P+Z Commissioner) handled her job very well because she focused on the ordinances. That's where we have to end up going when others get emotional or personal.”
“It's OK. It's good to vent. But in the end, you don't get to vote on emotion. Our country runs because we have written laws that we struggle to understand. And that's what protects us all. If not, it would be whichever gets bigger wins. So we all need it to be back to what is written. Whether I read it correctly or whether I read it the same as others is really all the debate is. And it will never end.”
“It may take a few more twists — maybe not 16. As a landowner, the land will last beyond all of us. I'm very passionate about the land.”
Trustee Gail McCoy told Cloudcroft Reader," I think it's time for Jim to step down.”
McCoy: “I told him that last night. I think we've got a bad taste in our mouths. Thirty years is a long time. There are so many things out there that I think it's time for someone else to step up.”
In an interview this morning, McCoy restated her belief that Maynard should step down. She also expressed regret that she had made a motion to approve, realizing later that the multi-family building would not likely be ‘affordable housing.’
She also praised Attorney Rhodes for his role in the meeting.
“I called Attorney Rhodes this morning and told him, You are the hero. Last night you, you did something. It was amazing. You saved us. You saved Cloudcroft. I really believe that. He's the hero. He set a a precedent and he has opened our eyes and brought attention to this. I don't think this will happen again. I think this is a turning point for this town.”
“Attorney Rhodes said he didn’t think this was nefarious on their part (Denney and Maynard). It’s just that everything has been done incorrectly in the past. It was not done, you know, saying, Hey, we got away with this, let's do it. They just thought it was right it was the process, but it was not the process. It didn't come before the council, didn't go before P+Z, and now people are saying we want it done right. That's what's happening here.”
“This is the way we've always done it, and I remember Bill Denney saying things like, This is the way I saw it done, and this is the way we do it.'“
“They were following someone else’s example, but it was wrong. They were not following the ordinance or the statutes. Denney was doing what the mayor did before him, and it was wrong. There wasn't anybody there to hold them accountable.”
“Tabitha, Timothy, and I are looking at things differently. At our council meetings, there are things that we say No to now. Before, I think it was a go-along with everything. We're a different group now.”
“I think that's what's happening. We want the truth to come out; we want transparency; we want people who are here for us.”
“The times are changing; we have more information than we had before. Things were not as accessible to us as they are now. We can get on the internet, we can look up things on our phones, and it's a lot faster. These things are more accessible.”
“I want the best for Cloudcroft, and I don't believe this (Skywater approval) is the best option.”
Cloudcroft Reader: Do you think Maynard will have an uphill fight to get this approved?
McCoy: “Yeah, I think so. I really do.”
We asked Trustee Tabitha Foster if she concurred with McCoy’s statements.
Foster: “I do agree with her, because I could be wrong, but did his attorney not stand up and say, Yes, we know that this was wrong, that's why we're bringing it before you now? So yes, I do believe that he should step down.”
“For the reason that he has been a council member for many, many years. And [Jim] claims to know the ordinance book better than anybody else. And if you knew that, then you knew the proper rules and procedures to follow. And you did not follow the proper rules and procedure because you knew the council would most likely vote you down because that's what they did six months prior.”
“Honestly, on his presentation, per best practices by Robert's Rules of Order and the Municipal League, if you are going to abstain from a vote, you should also abstain from the discussion to not create any kind of coercion, manipulation or... intimidation. So if if there were somebody else that could have presented for him they should he should have had somebody else present for him, and he should have left the room because I felt like it was unfair that we only allowed Mr. Lee a certain amount of time to discuss his situation but we gave Jim three and a half hours.”
Trustee Tim King said, “What Jim did, he would benefit financially. He's an elected official. So there should be consequences for that. Stepping down would be step one. I think as things move forward, if Jim doesn't resign, more things will probably come out.”
King: “You know, everybody is skirting the issue: Why didn't you bring it before the council last year? And then his lawyer stood up and said, (the replat filings) were incorrect. No, it's not incorrect; it was wrong. They're just weasel words. It was just ridiculous.”
“We have laws. Why have anything if you can go to the mayor and the clerk and have whatever you want done, done?”
“A part of me respects Jim; he's a smart guy. And I think he's done a lot for the town, but you have to do it the right way. Jim did a great job explaining everything last night. But at the same time, I don't want to soil my reputation by rubber stamping something that wasn't done correctly.”
“One thing Jim said that was totally wrong was that if we voted ‘no,’ we would have to explain why we voted no, and that is not kosher at all. I could vote for whatever reason I want, and I don't have to make it known why. So that was a kind of intimidation.”
“So I want to say to Jim is, Show me in our ordinances where the mayor and the clerk can get together and make those changes. Show me where it says that.”
“Maybe it's a good idea, but it's like you skirt the letter or the spirit of the law three times, and then we have to vote on this?”
We called Mayor Craig Turner to discuss these comments from three of his four trustees.
He said, “I would say that they are extremely disappointed. They feel like this was done inappropriately and possibly even done knowing that it was being done incorrectly. Therefore, I understand their concerns.”
We asked if he agreed that Mayor Pro-tem Maynard should step down. He said, “I don’t have a comment because the manner in which the re-platting was approved is under state investigation.”
Skywater subdivision resident Greg Switzer, who spoke out at the August 2022 council meeting against rezoning the lots in question and again at the September 2024 P+Z meeting, told Cloudcroft Reader:
“I think it's good for the village to follow the rules and hold people accountable. It's good for the community to know they can trust everybody from P&Z to the council. That it's a new day, a new beginning.”
“Things need to be in the light. Everybody's for transparency. We want to enjoy Cloudcroft. We're proud of it. It's full of fantastic people. We stood up then and now, trying just to be a part of doing the right thing in the community. And we're proud of so many people are working hard to make it right. "
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The Skywater Subdivision replat summary requests weren’t the only item on last night’s agenda.
Missing Reports: “Not Acceptable”
During the village department reports, the mystery of the Gross Receipts Tax (GRT) went unsolved.
GRT funds comprise the state's sales tax monies from Cloudcroft businesses, with a portion remitted to the village. Currently, the village office cannot find bank deposits or reports showing what the monthly payments should be or that they’ve been made.
After moving on to other department updates, Mayor Turner doubled back and said,
“One thing I will say to all of you, the village, everyone that's here today, it's not acceptable that we don’t have the GRT report to you. It's not acceptable and I own that.
But we're going to find out. I just had an epiphany just now thinking about this. I'll call the Municipal League tomorrow morning and find out how am I supposed to get that report and why am I not getting that report.”
Deja Pü: The Trouble with 802 Chautauqua Canyon
Last night, Mr. Richard Lee, the owner of 5 lots on Chautauqua Canyon, presented his second plea to the council—and third village discussion, including the September P+Z meeting—for a replat and variances to address the cesspool on his property.
The village has issued a citation for the cesspool, and the matter is set for trial.
Lee says he wants to address it by hooking up to the village sewage system, but there are too many caveats.
Citing expenses and the inability to reach compliance for Construction Inspection Division (CID) permitting to fix the sewage issue, Lee implored the council, saying, “I'm trying to pull building permits so I can comply with the sewer. The way this property is set up right now requires that I run four sewer lines. That's over $100,000 for a property we bought that the county said was on the sewer system, the village said was on the sewer system.”
Lee continued,
“You have in your ordinances the ability to say it is impossible for us to make the requirement for the setbacks because the five setbacks for the backyard exist already. We've had this problem before. You have the ability to look at it and say it's not something that's practical to correct because that's how it exists.
I'm asking you to do the replat so I can get put on the sewer system and get the permits that I need because if I apply for the permits now, I could have four sewer lines. If I get my replat, I only have to do two sewer lines. And that's what I'm asking you to do. We never had any concept that this kind of problem could exist. We came to you and said, We found the problem. We want to solve it. We want to pull the correct building permits. And just like earlier, when I talked to CID, they told me what I had to do. I come back and talk to you folks. You have the ability to make it so I can get the cesspool over with.”
“That's all I'm asking you to do tonight. So I can move forward and get the permits and get on the sewer.”
P+Z Commissioner Jessica Beach said, “Currently, [Lee] has five lots, and he's trying to replat it into two lots. He is just changing property lines. We did look at the parking situation. He did comply with parking. The square footage of the lot, he did comply with that.”
Beach continued,
“He isn’t in compliance with the Village of Cloudcroft regarding tying into the sewer system because he's not tied into the sewer system at this time. He's still on the cesspool. In reviewing the other village ordinance, he is required to have each under the water billing the service regulations.”
“It states no more than one building shall be permitted to use a water service line and water service to each building shall be separately metered on the properties in question.”
Trustee Gail McCoy said, “I mean, as far as it is an environmental issue for the village, it has to be something that needs to be resolved. We don’t want a cesspool.”
Lee’s cesspool topic was on the Council agenda in the May 2024 meeting when Attorney Rhodes “unofficially” advised him to seek legal counsel regarding the seller's property disclosure.
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Wow what a night! Reporting excellent as always. Thank you.
ALL of you great mountain folk, PLEASE take a moment and remember "Peaches Nivison". She was former mayor Mike Nivison's ex, and a crazy, zany, warm, former nurse,woman.. I already miss her..Sally& Prentice Blanscett