IN THE UNITED STATES DISTRICT COURT
FOR THE STATE OF NEW MEXICO
GEORGINA AYALA; MAGDALENA RODRIGUEZ;
DAVID UNZUETA; MA. DOLORES UNZUETA;
ALEJANDRA R. DURAN; JOSE INEZ DURAN;
LORENZO CERROS; MARIA CERROS; ALFREDO
GONZALES; FABIOLA GONZALES; ELIZABETH
LOPEZ; MARGARITO MONTOYA; JOSE ROSALES;
REYNA ROSALES; JUAN RUIZ; PATRICIA
RUIZ; EUFEMIO CANO; ALFREDO NAVARRO;
YOLANDA NAVARRO;'GERARDO ACOSTA
CARDENAS; and MARIA ACOSTA;
Plaintiffs,
vs.
No. CIV 94-0493 HB/JHG
VILLAGE OF HATCH, MAYOR TOMMY HALSELL,
TRUSTEE JOHNNYE HAMMETT; TRUSTEE GARRY
JOHNSON, TRUSTEE CLARK NEAL; TRUSTEE
GILBERT BARTLETT and GEORGE HARTFORD,
in their official capacities,
Defendants.
CONSOLIDATED WITH
UNITED STATES OF AMERICA,
Plaintiff,
vs.
No. CIV 95-0636 HB/JHG
VILLAGE OF HATCH, NEW MEXICO,
Defendant.
_______________________________________
CONSENT DECREE
On May 9, 1994, the private Plaintiffs commenced this action
alleging that the Village of Hatch has engaged in a course of
municipal action intended to prevent permanent resident aliens of
Mexican national origin from living in the Village in violation
of the Fair Housing Act, as amended by the Fair Housing
Amendments Act of 1988, 42 U.S.C. §§3601, et seg. On June 15,
1995, the United States filed its complaint alleging that the
Village engaged in a pattern or practice of discrimination on the
basis of national origin by making housing unavailable to persons
seeking to reside in the Village of Hatch. The Defendants admit
to no liability for any wrongdoing and expressly deny the
allegations of Plaintiffs' complaints.
WHEREAS the parties' representatives have engaged in extensive
arms-length negotiations in the interest of settling the claims
raised in the above-captioned action;
WHEREAS the terms of this Consent Decree have been approved by
the private Plaintiffs, the United States Department of Justice
(collectively referred to hereafter as "Plaintiffs") and by the
Defendants through the votes of the Village of Hatch Board of
Trustees on October 31, 1996;
WHEREAS the Defendants find that settling this lawsuit and
approving this proposed Consent Decree on the terms stated herein
expressly further the municipal purpose of fostering integrated
and affordable housing for all residents of the Village of Hatch;
WHEREAS all parties seek to promote a new spirit of harmony,
cooperation and unity in the Village of Hatch and to collectively
and cooperatively address the zoning, housing, and community
development needs of the Village of Hatch;
NOW, THEREFORE, subject to final approval of the Court, the
parties agree as follows:
- INJUNCTIVE RELIEF
- Defendants, their agents, employees, successors, and
all persons in active concert or participation with any
of them in the enactment and enforcement of the
Village's zoning and land use ordinances are
permanently enjoined from enforcing ordinance Number
256 as adopted on August 12, 1993 and published on
August 19, 1993, entitled Village of Hatch
Comprehensive Zoning Ordinance. The amended ordinance
enacted in accordance with this Consent Decree may be
enforced in accordance with the law.
- Defendants, their agents, employees, successors, and
all persons in active concert or participation with any
of them in the enactment and enforcement of the
Village's zoning and land use ordinances are
permanently enjoined from engaging in any activity or
practice, or from maintaining any policy or procedure,
that:
- Makes unavailable or denies a dwelling unit to any person because of national origin;
- Discriminates against any person in the terms,
conditions or privileges of the rental of a
dwelling unit because of national origin;
- Makes, prints, or publishes statements with
respect to the rental of a dwelling unit that
indicates a preference, limitation, or
discrimination based on national origin;
- Coerces, intimidates, threatens, or interferes
with any person on account of his or her having
exercised any right granted or protected under the
Fair Housing Act; or
- Otherwise violates the Fair Housing Act. 42 U.S.C. §
3601, et seg.
- CIVIL PENALTY
The Village of Hatch shall pay as a civil penalty the sum of
$2,000 to the United States, pursuant to 42 U.S.C. §
3614(d)(1)(C). Such payment shall be made within thirty (30) days after the date of entry of this Decree.
- ZONING
Within 60 days from final approval of the Decree by the Court,
the Village shall rezone the Village of Hatch and amend the
Village of Hatch Zoning Code and Zoning Map in a manner
consistent with the terms of this Consent Decree. This rezoning
is intended to provide zoning consistent with the Hatch
Comprehensive Plan and to induce the use of mobile home parks, in
the Village of Hatch through zoning incentives used in
conjunction with the program described below.
- The zoning designation of Elm Street in the Village of Hatch will be changed from R-1 to R-1-M; the Plaintiffs
and the Santos family may return to the mobile homes at
issue such that the current trailer parks located on
Elm Street, will be permitted to resume operation at
the level to which they were operating on November 1,
1993. The trailer parks on Elm Street will be
considered legal nonconforming uses and the provisions
of the zoning ordinance governing legal non-conforming
uses shall apply to the trailer parks located an Elm
Street in the same manner as they apply to other
trailer parks within the Village of Hatch.
- The zoning designation of additional areas will be
changed from R-1 to R-1-M, as agreed to by the parties
and described in Exhibit A.
- At least three additional areas will be considered for
rezoning to R-2-M upon application of interested
parties.
- The minimum lot size for R-1-M mobile home sites will
be changed to the dimensions identified in § 2.B of
Ordinance 256 omitting the 5,000 sq. ft. minimum lot
size requirement. The minimum lot size for R-2-M mobile
home park sites will be changed to 2 acres.
- The Village shall in good faith consider proposals,
Village Codes and ordinances that are conducive to
promoting decent, affordable housing, e.g., special
revitalization districts, neighborhood revitalization
projects, ordinance concessions for nonconforming
neighborhoods to make it feasible to improve properties
consistent with available funding.
- Within 60 days of final approval of this Decree by the
Court, the Village shall amend the Hatch Comprehensive
Plan in order to reflect the goals of housing and
neighborhood improvement for the Village set forth in
the Consent Decree.
- The Village shall develop and implement displacement
and relocation plans as that term is used in 42 U.S.C.
§ 5304(d) for any displacements or relocations
occurring in connection with CDBG funded programs,
including the development of zoning laws, consistent
with the certification required under 42 U.S.C. § 5304
(d).
- DEVELOPMENT OF HOUSING PLAN
Within 30 days of signing the Decree the Village will commence to:
- Update the Hatch housing assessment and a proposed housing plan, which includes:
- A land and housing inventory within the Village of all vacant lots, larger sites, and homes that are
vacant, habitable, or not-habitable which will
determine:
- The habitable vacant homes which satisfy HUD
Housing Quality Standards;
- Available housing stock and vacant sites that
are salable, and the vacant sites that are
eligible for mobile homes that meet current
code;
- Homes and sites that are feasible for
purchase within the appraisal limits;
- A feasibility study of methods to provide
affordable, safe, decent, and sanitary housing
through mobile homes and mobile home parks, e.g.
redevelop current substandard mobile home parks in
a rental park with a strong property management
plan and a cooperative resident association or
convert current mobile home parks into mobile home
subdivisions;
- The available sources of funding for the
development of low income housing; and
- A proposal for inducements to be offered to
private businesses or individuals to develop or
rehabilitate housing which would be available to
low income persons.
- In developing the above-described housing plan, the
Village shall:
- Invite the participation of the following:
- Village Engineer
- Doña Ana County building inspector
- Doña Ana County Public Housing Authority
- Tierra del Sol Housing Corporation property
management/maintenance
- South Central Council of Governments or Rio
Grande Council of Governments planner
- Colonias Development Council
- The local federal and state legislative
delegates.
- Hold community meetings in the course of the
development of the plan which meetings shall be
held in a meaningful manner with respect to notice
to interested persons, notice of matters to be
discussed, the presentation of information, and
the use of interpretive services.
- The Village will complete such housing plan within six
(6) months of the entry of this Decree unless it is
impracticable to complete within such time, whereupon
the Village will notify the Plaintiffs in writing of
the reason for delay.
- INFRASTRUCTURE
- The Village will continue to pursue and seek to
expedite any infrastructure improvement projects such
as any water, sewer, and/or possible drainage
improvements currently funded.
- The Village will continue to pursue funding for
providing infrastructure improvements. Such funding may
serve either as an incentive or as a prerequisite to
the development of low income housing.
- FUNDING RESOURCES
- The Village will seek Congressional assistance to
intervene and will intervene to request FEMA to give
emergency technical assistance with regard to flood
plain development and will seek resources to cover the
expense of any required flood insurance.
- The Village will submit an application for an
allocation from HUD discretionary funds for an
allotment of 25 project-based section 8 certificates
designated to the Village of Hatch or surrounding
areas.
- The Village will apply and/or assist Doña Ana County in
applying for funds for improvement of rental housing
and provision of rental assistance to low income
tenants as follows:
- Apply for HUD Rental Rehabilitation;
- Publicize the existence and process for
governmental assistance in the rental or purchase
of low income housing;
- Make affirmative efforts to promote the use of
such rental assistance in conjunction with Rental
Rehabilitation of units to ensure the continued
affordability of rehabilitated units to low income
renters; and
- Take such other measures as are appropriate to
prevent displacement of low income renters from
rehabilitated units.
- The Village will in good faith consider and cooperate
in applications by private entities or individuals for
federal funding which would result in the development
of low income housing to the extent consistent with the
anti-donation clause of the New Mexico Constitution.
- The Village will support the application for Housing
Opportunity Grants Program, under which HUD provides
grants to neighborhood non-profit organizations to
enable the organizations to provide loans to families
purchasing homes that are constructed or substantial
rehabilitated by requesting any necessary waivers and
by providing written statements that the Village
approves of the proposed program.
- The Village will in good faith apply for and
aggressively pursue available funding including CDBG
grants for the development of low income housing,
making housing a top priority in the use of CDBG
funding considering the need for infrastructure
improvements.
- CONSTRUCTION PROGRAM
The Village will create a new construction program to support the development of new single family residences on vacant lots within the Village for low income families that will include:
- Encouraging the private sector to construct affordable single family homes on the vacant lots;
- Amending its zoning. code to provide appropriate code
provisions supporting the Village development program;
- Providing incentives to the program through one or more
of the following:
- Providing grants to purchase additional lots in
the Village to the extent the Village receives
funding for such purpose;
- Providing information for obtaining government
funds for impact or hook-up fees and/or delayed
payment of such fees;
- Allowing modifications of building standards that
ensure soundness of construction while reducing
unnecessary building costs consistent with the
safety of the public and compliance with state
codes;
- Streamlining the permitting and inspection
process;
- Providing infrastructure improvements to support
residential development and rehabilitation in the
same manner as those provided to non low-income
developments to the extent the Village receives
funding for such purpose.
- FAIR HOUSING POLICY
The Village will develop and adopt an affirmative fair housing a policy which will be reviewed annually. The policy and all updates shall be published.
- FIVE YEAR HOUSING PLAN
The Village will develop a Five Year Housing Plan which will
include:
- A needs assessment;
- A plan for broad-based citizen participation;
- Specific production and development targets
incorporating the above programs and provisions;
- Annual review of the zoning code, comprehensive plan,
fair housing policy; and
- Annual application for private and local, state and
federal government financing.
- TRAINING
- Within thirty (30) days after the date of entry of this
Decree, the Village shall conduct and complete the
following program for all officials, agents, or
employees with responsibilities relating to the
implementation and enforcement of all zoning, occupancy
or land use regulations. At a minimum, this shall
include all persons, involved with zoning code
enforcement, municipal officers, Board of Trustees
members, and the mayor. Such program shall include:
- Furnishing to each employee or agent a copy of the
Consent Decree, and informing each such person, in
person, of the duties of Defendant and its
employees and agents pursuant to the Decree; and
- Securing the signed statement appearing at Exhibit
B from each such employee and agent indicating
that he or she has received, read, and understands
this Consent Decree and the policy of
nondiscrimination mandated by it and further
understands that violation of this Decree may
result in sanctions against the Village by the
Court.
- For the duration of this Decree, each new official,
employee or agent of the Village with responsibilities
relating to the implementation and enforcement of all
zoning, occupancy, or land use regulations shall be
given a copy of and required to read this Consent
Decree, and sign the statement appearing at Exhibit B,
within ten (10) days after the date he or she commences
an employment or agency relationship with the Village.
For the duration of the Decree, the Village shall
inform fully each such new official, employee or agent
of the Village's obligations under the Consent Decree.
That person shall sign a certification that he or she
understands these obligations.
- The statements prescribed by this section of the Decree
shall be maintained in the office of the Village Clerk
for the duration of this Decree.
- FUTURE ASSURANCES
- Within thirty (30) days cf the signing of this Decree,
the private Plaintiffs will provide the Defendants with
notice of a designated person or entity which will be
entitled to receive notice as provided in this Decree
on behalf of the private Plaintiffs. No monitoring fees
will be sought by the Plaintiffs.
- Within (30) days of the signing of this Decree the
parties shall designate a mutually acceptable
person(s), governmental or public body to act as a
compliance officer or agency. The compliance officer or
entity so designated shall be served with the reports
specified by this Decree. The compliance officer or
entity shall further be authorized and permitted to
conduct an investigation as deemed appropriate to
determine compliance with this Decree. Such
investigation may include a review of Village records
or interviews of Village officials and the Village
shall make such records and persons available to the
compliance officer. The compliance officer shall report
every six months to the United States, the Plaintiff's
designee, and the Defendants regarding compliance with
this Decree. The compliance monitor can request the
court to award fees for the work done in monitoring
compliance with this Decree. In the event the
compliance monitor resigns from the duties described
herein, the parties shall agree upon a replacement
person or entity within sixty days of the resignation.
- In the event of a rezoning initiated by the request of
a property owner, the Village agrees to give due weight
to preserving the goals of housing and neighborhood
improvement for the Village set forth in this Consent
Decree.
- For the duration of this Decree, before enacting or
implementing any future ordinance that places any
limits or restrictions on mobile homes, the Village
shall notify counsel for the United States of such
limits or restrictions. Such notification shall include
the text of the proposed amendment, showing language to
be added or deleted; any documents that have been
submitted to the Board of Trustees in support or
opposition to the proposal; the date on which each
projected hearing before the Board of Trustees with
respect to the proposal is to take place; and the name,
address, and telephone number of the person(s) who have
made the proposal.
- The new ordinance or amendment may be effective no less
than thirty (30) days after the United States is
notified of the proposal, unless the United Stats
informs the Village that it has no objections to the
proposal before that time. In the event that the United
States objects to the proposed change in writing
within 30 days of receipt of notice, the change shall
not be implemented until the parties have resolved
their dispute or, in the event that they are unable to
resolve it, the Court shall resolve it.
- If an issue of compliance arises between the Village
and the Plaintiffs, the parties agree to resolve any
dispute in good faith. If no resolution of any dispute
is reached by the parties, then either party may apply
to the court for clarification or resolution of any
dispute.
- REPORTING TO THE UNITED STATES, PLAINTIFFS' DESIGNEE AND COMPLIANCE OFFICER
- The Village shall, no later than sixty (60) days after
the entry of this Decree, serve upon counsel for the
United States a report evidencing its compliance with
this Decree. This report shall consist of:
- Statements and certifications signed by all
officials, employees or agents pursuant to § X of this Decree.
- Six (6) months after entry of this Decree, and every
six (6) months thereafter for three (3) years from the
date of this Decree, the Village shall serve on counsel
for the United States, the designee identified by
private Plaintiffs, and the compliance officer a
written report evidencing its continuing compliance
with this Decree during the preceding six (6) months.
This report shall contain the following information:
- Any statements/certifications signed by Village officials, employees or agents as required by § X;
- Any written complaint made to the Village, its
non-clerical employees, officials and agents
alleging housing discrimination by the Village.
The Village shall include full details of the
complaint, including the complainant's name,
address and telephone number, and any action taken
or proposed by the village in response to the
complaint;
- Copies of all written zoning requests involving
the movement of single-wide mobile homes within
the Village. The Village shall include full
details of the request, including name, address
and telephone number of the person making such
request, and any decision by the Village in
response to such request;
- Copies of all applications for areas to be rezoned
R-2-M. The Village shall include full details of
the request, including the name, address and
telephone number of the person making such
request, and any decision by the Village in
response to such request;
- Notice of the resignation and/or hiring of all
Village employees and zoning officers;
- Copy of the housing plan described in § IV;
- Records of community meetings held in the course
of development of housing plan described in § IV;
- Documentation of efforts to seek funds for
infrastructure improvements and utilization of
funds as described in § V;
- Documentation of efforts to obtain funding for
development of housing as described in § VI;
- Documentation of all efforts toward the creation
and implementation of a construction program
pursuant to § VII;
- A copy of the fair housing policy as required by § IX; and
- A copy of the 5 year plan as required by § IX.
If such material is voluminous, the Village may advise Plaintiffs
that such material is available for inspection and copying at
Plaintiffs' expense.
- Upon reasonable notice to counsel for the Village,
representatives of the United States, private
Plaintiffs' designee and compliance officer shall be
permitted to inspect and copy all pertinent records of
Defendant at any and all reasonable times at
Plaintiffs' expense; however, the United States and
Plaintiffs shall endeavor to minimize any inconvenience
to Defendants from inspection of such records.
- MONETARY RELIEF
Within thirty (30) days of the date of entry of this Consent
Decree, the Village shall pay a total of two hundred and sixty
thousand, five hundred dollars ($260,500.00) to Plaintiffs and
aggrieved persons to resolve the compensatory damage claims and
attorneys fees of persons aggrieved by the Village's alleged discriminatory conduct. In consideration of the Village's
payment, each aggrieved person who receives compensation shall
execute the Settlement Agreement set forth as Exhibit C.
- CLAIMS OF THE UNITED STATES
The entry of this Consent Decree resolves all claims by the
United States, including monetary relief for aggrieved persons,
based on the allegations in its complaint.
- MISCELLANEOUS
- This Consent Decree shall continue in effect for a
period of three years. Any of the parties may apply to
the Court for an extension of this Consent Decree for a
longer period upon a showing of non-compliance or good
cause.
- This Consent Decree shall constitute a final judgment
by the Court. This Court shall retain jurisdiction
consistent with the provisions of this Consent Decree.
U.S. DISTRICT COURT JUDGE
HOWARD BRATTON
APPROVAL:
Defendants
GREGORY L. BIEHLER
Beall & Biehler
Attorney for Defendants: Village
of Hatch, Mayor Tommy Halsell,
Trustee Johnnye Hammett, Gary
Johnson, Clark Neal, Gilbert
Bartlett and George Hartford
6715 Academy Road NE
Albuquerque NM 87109
Plaintiffs
ELIZABETH E. SIMPSON
Tomita & Simpson, P.C.
Counsel for Plaintiffs
4253 Montgomery Blvd NE #205
Albuquerque NM 87109
DONNA J. SNYDER
Counsel for Plaintiffs
8815 Dyer St #240
El Paso TX 79904
PAUL F. HANCOCK
BRIAN F. HEFFERNAN
JON M. SEWARD, ESQ.
Attorneys
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice
PO Box 65998
Washington DC 20035-5998
(202) 307-3804