10-2013: city of truth or consequences answers hot springs motorplex/land dev. lawsuit

7/27/2019 10-2013: City of Truth or Consequences Answers Hot Springs Motorplex/Land Dev. Lawsuit

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW MEXICO

HOT SPRINGS LAND DEVELOPMENT, LLC,A New Mexico Limited Liability Company, andHOT SPRINGS MOTORPLEX DEVELOPMENT,LLC, A New Mexico Limited Liability Company,

Plaintiffs,

vs.Case No. 2:13-cv-00736 WPL/GBW

CITY OF TRUTH OR CONSEQUENCES,A New Mexico Municipality,

Defendant.

ANSWER

COMES NOW Defendant, the City of Truth or Consequences (the City) , by and

through its counsel Coppler Law Firm, P.C., and for its Answer to the Complaint for Declaratory

and Injunctive Relief and Damages (the Complaint) states:

I. Jurisdiction and Venue

1. As to Paragraph 1 of the Complaint, the City ad mits only that based on Plaintiffs

allegations this Court has jurisdiction pursuant to 42 U.S.C. 1983, 28 U.S.C. 1331, and 28

U.S.C. 1343, with pendent jurisdiction over the state law claims. The City denies the

remaining allegations in Paragraph 1.

2. The City admits the allegations in Paragraph 2 of the Complaint.

II. Parties

3. The City lacks knowledge or information sufficient to form a belief as to the truth

of the allegations in Paragraph 3 of the Complaint, and therefore denies them.

Case 2:13-cv-00736-WPL-GBW Document 4 Filed 09/10/13 Page 1 of 30


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6. The City denies the allegations in Paragraph 6 of the Complaint.

III. Plaintiffs Factual Allegations




10. The City admits the allegations in Paragraph 10 of the Complaint.11. The City lacks knowledge or information sufficient to form a belief as to the truth






14. As to Paragraph 14 of the Complaint, the City admits only that the City has at all

times attempted to cooperate with Plaintiffs various plans and schemes for development of their

lands in the vicinity of the Municipal Airport, to the extent consistent with applicable law. The

City denies any remaining allegations of Paragraph 14, and specifically denies that there was

ever any agreement between the City and Plaintiffs for the City to cooperate generally in all of

Plaintiffs plans and schemes for development.



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15. As to Paragraph 15 of the Complaint, the City states that it is ambiguous, that as a

consequence the City lacks knowledge or information sufficient to form a belief as to the truth of

the allegations therein, and the City therefore denies them.



18. As to Paragraph 18 of the Complaint, the City admits only that the City entered

into an Airport Management Agreement with HSMD dated August 17, 2007, and states that the

Agreement speaks for itself.

19. The City denies the allegations in Paragraph 19 of the Complaint, and states thatas to the terms of the Airport Management Agreement, the Agreement speaks for itself.

20. As to Paragraph 20 of the Complaint, the City states that it is ambiguous, that as a

consequence the City lacks knowledge or information sufficient to form a belief as to the truth of

the allegations therein, and the City therefore denies them.






25. The City denies the allegations in Paragraph 25 of the Complaint, and states that

as to the terms of the Option Agreement, the Agreement speaks for itself.





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29. As to Paragraph 29 of the Complaint, the City admits only that the City entered

into the Option Agreement without prior approval from the Office of the New Mexico State

Engineer. The City states that the remaining allegations in Paragraph 29 are a legal conclusion

not requiring an answer, but if an answer is required the City denies them.

30. As to Paragraph 30 of the Complaint, the City admits only that it did not petition

the Office of the New Mexico State Engineer before entering into the Option Agreement, andaffirmatively states that there was no legal or administrative requirement for the City to do so.




33. As to Paragraph 33 of the Complaint, the City states that it asserts a legal

conclusion not requiring an answer, but if an answer is required the City denies the allegations in

Paragraph 33.






38. As to Paragraph 38, of the Complaint, the City admits only that at the time

Ordinance No. 574 was enacted one or both of the Plaintiffs was seeking to acquire land in the



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50. As to Paragraph 50 of the Complaint, the City admits only that on or about

August 5, 2008, then City Manager Jaime Aguilera prepared a staff report for the Planning and

Zoning Commission meeting relating to the annexation requested by HSLD, and states that the

staff report speaks for itself. The City denies the remaining allegations in Paragraph 50.

51. As to Paragraph 51 of the Complaint, the City admits only that on August 18,

2008, the City C ommission approved HSLDs petition for annexation. The City denies the


52. The City lacks knowledge or information sufficient to form a belief as to the truthof the allegations in Paragraph 52 of the Complaint, and therefore denies them.



54. As to Paragraph 54 of the Complaint, the City admits only that it has anticipated

the construction of additional wells, possibly including wells located north of Plaintiffs

properties, to provide water supply if and when Plaintiffs development requires water utility

service, and that the City has the capacity to provide both water and sewer utility service. The

City denies the remaining allegations in Paragraph 54.

55. As to Paragraph 55 of the Complaint, the City admits only that the City and

HSLD entered into a Water Well Development Agreement, as to the terms of which the

Agreement speaks for itself, and affirmatively states that the Water Well Development

Agreement was entered into on or about June 10, 2008, and was terminated by the parties, by

mutual agreement, on or about September 23, 2008. The City denies the remaining allegations in

Paragraph 55.



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the Agreement speaks for itself.


the Agreement speaks for itself.





60. The City denies the allegations in Paragraph 60 of the Complaint.61. The City denies the allegations in Paragraph 61 of the Complaint.

62. As to Paragraph 62 of the Complaint, the City admits only that the City paid

HSLD approximately $47,000 as compensation for costs incurred by HSLD. The City denies the



64. As to Paragraph 64 of the Complaint, the City states that the Airport Development

Agreement speaks for itself.




68. As to Paragraph 68 of the Complaint, the City admits only that the reasons for

termination of the Airport Development Agreement are set forth in the recitals of the

Termination of Airport Development Agreement, which Termination speaks for itself. The City

denies the remaining allegations in Paragraph 68 of the Complaint.



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69. As to Paragraph 69 of the Complaint, the City admits only that Greg Neal, a

representative of HSMD, signed the Termination of Airport Development Agreement. The City

denies the remaining allegations in Paragraph 69.


71. As to Paragraph 71 of the Complaint, the City states that the allegations therein, to

the extent they assert regulatory requirements of the Federal Aviation Administration (FAA),

constitute legal conclusions not requiring an answer, but if an answer is required the City denies

those allegations. As to the remaining allegations in Paragraph 71, the City lacks knowledge or

information sufficient to form a belief as to the truth of the remaining allegations, and thereforedenies them.


73. As to Paragraph 73 of the Complaint, the City admits that on November 17, 2008,

the City was sued by two local residents, and affirmatively states that Plaintiffs were also named

as defendants in the same case, which is styled Au dette et al . v. City of Tru th or Consequences

et al . , No. D-721-CV-2008-00103 in the 7th Judicial District Court for Sierra County, New

Mexico.


75. The City denies the allegations in Paragraph 75 of the Complaint, and

affirmatively states that Plaintiffs herein, as Defendants in Audette , had an obligation to defend

themselves in that case and the City had no obligation to provide them a defense.






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Paragraph 81.

82. The City denies the allegations in Paragraph 82 of the Complaint.83. As to Paragraph 83 of the Complaint, the City admits only that in 2011 the City

sent to Greg Neal, principal of each of the Plaintiffs, a Notice of Intent to Condemn the 21.365

acres at the Airport. The City denies the remaining allegations of Paragraph 83.


85. As to Paragraph 85 of the Complaint, the City admits only that on or about June

16, 2011, HSLD agreed to sell the 21.365 acres at the Airport to the City for $350 per acre. The

City denies the remaining allegations in Paragraph 85.




88. As to Paragraph 88 of the Complaint, the City admits only that no agreement in

the nature of a North Parcel Airport Lease has ever been entered into between the City and the

Plaintiffs, or either of them. The City denies the remaining allegations in Paragraph 88.



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91. As to Paragraph 91 of the Complaint, the City admits only that Plaintiffs sought to

acquire water from the City in reliance on Plaintiffs reading of the Option Agreement. The City

denies the remaining allegations in Paragraph 91.




96. As to Paragraph 96 of the Complaint, the City admits only that to the Citys

knowledge Plaintiffs have not signed any general release of potential claims against the City.

The City denies the remaining allegations in Paragraph 96.

97. As to Paragraph 97 of the Complaint, the City admits only that at all relevant

times the City has sought to work with the Plaintiffs to resolve outstanding issues between

Plaintiffs and the City. The City denies the remaining allegations in Paragraph 97.










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105. As to Paragraph 105 of the Complaint, the City admits only that the language

cited constitutes a part, but not the entirety, of the purpose for Ordinance No. 633 as stated in

that ordinance. The City denies that this was the entire purpose clause of Ordinance No. 633,

and states that the ordinance speaks for itself.



Ordinance No. 633 speaks for itself.


of the allegations in Paragraph 108 of the Complaint, and therefore denies them.109. The City denies the allegations in Paragraph 109 of the Complaint.

110. As to Paragraph 110 of the Complaint, the City states that it is a legal conclusion

not requiring an answer, but if an answer is required the City denies the allegations in Paragraph

110.




Paragraph 112.


114. The City denies the allegations in Paragraph 114 of the Complaint, and also

denies the apparent premises on which such allegations are based.






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119. As to Paragraph 119 of the Complaint, the City admits only that a version of a

contemplated commercial lease, a letter dated July 2, 2012 from HSLD to City Manager Juan

Fuentes, and a proposed form of release for consideration by the City Commission were included

in the January 23, 2013 briefing packet, and affirmatively states that all documents included in

the briefing packet were matter of public record and that HSLDs consent was not required for

their inclusion in the briefing packet. The City denies the remaining allegations in Paragraph

119.

















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138. The City denies the allegations in Paragraph 138 of the Complaint.IV. Plaintiffs Count I

139. The City here incorporates by reference its answer to each allegation contained in

the Complaint, as though here fully set forth.

140. Based solely on Plaintiffs allegations set forth in the Complaint, t he City admits

the allegations in Paragraph 140 of the Complaint.

141. As to Paragraph 141 of the Complaint, the City admits only that prior to the

enactment of Ordinance No. 633 Plaintiffs had communicated an extremely generalized and

vague master plan for proposed development of their property to the City and the general

public. The City denies that Plaintiffs at any time communicated detailed development plans or

even a proposed subdivision plat for any portion of the property.





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not requiring an answer, but if an answer is required the City denies the allegations of Paragraph

144.



145.



146.147. As to Paragraph 147 of the Complaint, the City states that it is a legal conclusion


147.



148.



149.



150.



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V. Plaintiffs Count II





152.



153.154. As to Paragraph 154 of the Complaint, the City states that it is a legal conclusion


154.



155.



156.



157.



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VI. Plaintiffs Count III






160.


not requiring an answer, but if an answer is required the City denies the allegations in Paragraph161.



162.

VII. Plaintiffs Count IV




165. As to Paragraph 165 of the Complaint, the City admits only that it has enacted

two overlay zoning ordinances relating to the Airport area, and states that those ordinances speak

for themselves. The City denies the remaining allegations in Paragraph 165.



166.



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168.

VIII. Plaintiffs Count V




not requiring an answer, but if an answer is required the City denies the allegations of Paragraph170.

171. As to Paragraph 171 of the Complaint, the City admits only that HSLD made an

initial payment of $20,000 pursuant to the Option Agreement. The City denies the remaining

allegations in Paragraph 171.

172. As to Paragraph 172 of the Complaint, the City admits only that HSLD made an

additional payment of $180,000 pursuant to the Option Agreement. The City denies the





174.



175.



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176. As to Paragraph 176 of the Complaint, the City admits only that it has not

prepared a capital improvements plan for the Airport area, and affirmatively states that the City

has no obligation to prepare such a plan and could not prepare one in any event, because

Plaintiffs plans for the development of their lands have never reached a point of sufficient

clarity for the preparation of a viable capital improvements plan. The City denies the remaining


177. As to Paragraph 177 of the Complaint, the City admits only that it has never

issued a building permit to HSMD, and affirmatively states that HSMD has never applied for a

building permit from the City. As to the remaining allegations in Paragraph 177, the City statesthat they constitute a legal conclusion not requiring an answer, but if an answer is required the

City denies them.



178.



179.



180.

181. As to Paragraph 181 of the Complaint, the City states that the City Code speaks

for itself.



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182. As to Paragraph 182 of the Complaint, the City denies all factual allegations in

that Paragraph. The City states that the last phrase of Paragraph 182 is a legal conclusion not

requiring an answer, but if an answer is required the City denies it.

183. As to Paragraph 183 of the Complaint, the City denies all factual allegations in

that Paragraph. The City states that the last phrase of Paragraph 183 is a legal conclusion not

requiring an answer, but if an answer is required the City denies it.

184. As to Paragraph 184 of the Complaint, the City admits only that it did not

schedule and publish notice of a public hearing to consider land use assumptions within any

designated service area that would be used to develop any capital improvements plan in order toimpose an impact fee on any portion of Plaintiffs property, and affirmatively states that no such

notice, hearing, land use assumptions or designated service area have at any time been required,

and further affirmatively states that the City has not at any time imposed any impact fee on any

portion of Plaintiffs property. The City denies any remaining factual allegations in Paragraph

184. The City states that the last phrase of Paragraph 184 is a legal conclusion not requiring an

answer, but if an answer is required the City denies the allegations therein.

185. As to Paragraph 185 of the Complaint, the City admits only that it did not make

available to the public any land use assumptions, the time period of any projections or a

description of the general nature of any proposed capital improvement facilities on or before the

date of any first publication of notice of any hearing on land use assumptions affecting Plainti ffs

property, and affirmatively states that no such notice, hearing, projections, description, or land

use assumptions have at any time been required, and further affirmatively states that the City has

not at any time imposed any impact fee on any portion of Plaintiffs property. The City denies

any remaining factual allegations in Paragraph 185. The City states that the last phrase of



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Paragraph 185 is a legal conclusion not requiring an answer, but if an answer is required the City

denies the allegations therein.

186. As to Paragraph 186 of the Complaint, the City admits only that it has not

published notice of any hearing on land use assumptions affecting Plaintiffs property, and

affirmatively states that no such hearing or land use assumptions have at any time been required.

The City denies any remaining factual allegations in Paragraph 186. The City states that the last

phrase of Paragraph 186 is a legal conclusion not requiring an answer, but if an answer is

required the City denies the allegations therein.

187. As to Paragraph 187 of the Complaint, the City states that it is a legal conclusionnot requiring an answer, but if an answer is required the City denies the allegations in Paragraph

187.


IX. Plaintiffs Count VI







192.


194. As to Paragraph 194 of the Complaint, the City states that it is ambiguous, that as

a consequence the City lacks knowledge or information sufficient to form a belief as to the truth



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of the allegations therein, and the City therefore denies them. As to the last phrase of Paragraph

194, the City states that it is a legal conclusion not requiring an answer, but to the extent an

answer is required the City denies the allegations in the last phrase of Paragraph 194.



195.



196.197. As to Paragraph 197 of the Complaint, the City admits only that the City has not

returned the sum of $200,000 to Plaintiffs. The City denies the remaining allegations in

Paragraph 197.



198.





200.





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203.

X. Plaintiffs Count VII









208.



209.

210. As to Paragraph 210 of the Complaint, the City denies that it has an inability to

provide water and sewer services. As to the remaining allegations in Paragraph 210, the City

states that they constitute a legal conclusion not requiring an answer, but if an answer is required

the City denies the remaining allegations in Paragraph 210.




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XI. Plaintiffs [First] Count VIII



213. As to Paragraph 213 of the Complaint, the City admits only that on or about

August 17, 2007, the City entered into the Airport Development Agreement with Plaintiff

HSMD, and the City states that the Agreement speaks for itself. The City denies the remaining



215. As to Paragraph 215 of the Complaint, the City denies that it made anymisrepresentation to HSMD as to any requirement for FAA approval of the Airport Development

Agreement. The City lacks knowledge or information sufficient to form a belief as to the truth of

the remaining allegations in Paragraph 215 of the Complaint, and therefore denies them.

216. As to Paragraph 216 of the Complaint, the City admits only that HSMD agreed to

terminate the Airport Development Agreement. The City denies the remaining allegations in

Paragraph 216.




218.



219.



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220. As to Paragraph 220 of the Complaint, the City lacks knowledge or information

sufficient to form a belief as to the truth of the allegations that Plaintiffs expended significant

resources (if any) in connection with the Airport Development Agreement, and therefore denies

them. The City denies the remaining allegations in Paragraph 220, and specifically denies that

Plaintiffs performed their obligations under the Agreement and further denies that the City

gained any benefit therefrom.




XII. Plaintiffs [Second] Count VIII











229.



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230.

XIII. Plaintiff s Count IX




233. As to Paragraph 233 of the Complaint, the City admits only that the Plaintiffs

entered into certain contracts with the City. The City lacks knowledge or information sufficientto form a belief as to the remaining allegations in Paragraph 233 of the Complaint, and therefore

denies them.



236. As to Paragraph 236 of the Complaint, the City denies all allegations therein,

except that as to the allegation that the City breached the covenant of good faith and fair dealing,

the City states that it is a legal conclusion not requiring an answer, but if an answer is required

the City denies that allegation.

237. As to Paragraph 237 of the Complaint, the City admits only that it enacted

Ordinance No. 574 and subsequently Ordinance No. 633. The City denies all remaining

allegations in Paragraph 237, except that as to the allegation that the City breached the covenant

of good faith and fair dealing, the City states that it is a legal conclusion not requiring an answer,

but if an answer is required the City denies that allegation.



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240. As to the first sentence of Paragraph 240 of the Complaint, the City denies theallegations therein. As to the second sentence of Paragraph 240, the City states that it is a legal


the second sentence of Paragraph 240.

AFFIRMATIVE DEFENSES

First Affirmative Defense

Plaintiffs have failed to state a claim upon which relief can be granted.

Second Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by the statutory limitations period of the

New Mexico Tort Claims Act, NMSA 1978, 41-4-1 et seq.

Third Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by failure of the Plaintiffs to provide

timely notice of their claims for damages, as required by the New Mexico Tort Claims Act.

Fourth Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by applicable statutes of limitations.



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Fifth Affirmative Defense

Plaintiffs claims allegi ng contract damages are barred because Plaintiffs have

substantially breached and failed to perform their obligations, or have chosen not to exercise

their options, under the relevant contract or contracts, so that the City had no obligation to

perform under any such agreement after Plaintiffs substantial breach thereof or failure to

exercise their options thereunder.

Sixth Affirmative Defense

Plaintiffs damages, if any, are entirely speculative and hypothetical, and the City has no

liability to Plaintiffs therefor.Seventh Affirmative Defense

On information and belief, Plaintiffs failure to subdivide or develop their property, or

even any portion thereof, is entirely a result of Plaintiffs failure or inability to complete any

element of their proposed development scheme, and the City has no liability to Plaintiffs

therefor.

Eighth Affirmative Defense

Plaintiffs claims alleging violation of the Federal Aviation Act are barred because the

Citys actions related to overlay zoning in the vicinity of the Airport do not conflict with any

statutory or regulatory provision of the Federal Aviation Administration under the Act.

Ninth Affirmative Defense

Plaintiffs claims under the Federal Aviation Act are barred because t he Citys actions

related to overlay zoning in the vicinity of the Airport are entirely a matter of state law which has

not been preempted by the Federal Aviation Act or any other federal legislation.



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Tenth Affirmative Defense

Plaintiffs claims alleging that they were harmed by the enactment of City Ordinance No.

633 are barred because Plaintiffs did not seek timely judicial review of Ordinance No. 633 after

notice of it, as required by state law.

Eleventh Affirmative Defense

Plaintiffs claims asserted under the Federal Aviation Act are barred because, even

assuming that the Citys zoning provision s were somehow contrary to that Act, Plaintiffs lack a

private cause of action or standing to assert a claim of the regulatory authority, the Federal

Aviation Administration, under the Federal Aviation Act.Twelfth Affirmative Defense

Plaintiffs claims alleging that the City has failed to provide municipal services to

Plaintiffs are barred because the City has never at any time denied municipal services actually

required by Plaintiffs, and Plaintiffs have never been in a position to accept or use municipal

utility services if they were provided.

Thirteenth Affirmative Defense

Plaintiffs have not suffered harm by the Citys enactment of Ordinan ce No. 574 and,

later, Ordinance No. 633, because far from unduly restricting development within the area of the

City that includes Plaintiffs lands, those ordinances actually contain much less restrictive land

use regulations than those that prevail in other areas of the City.

Fourteenth Affirmative Defense

Plaintiffs are barred from seeking judicial review of Ordinance No. 633 because Plaintiffs

failed to exhaust, or even exercise, their administrative remedies.



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Fifteenth Affirmative Defense

Plaintiffs complaint seeking the return of City -imposed impact fees is barred because the

City has never imposed or sought to impose impact fees on Plaintiffs property, and Plaintiffs

have never paid any impact fees to the City.

Sixteenth Affirmative Defense

Plaintiffs are barred from recovery under their theory that the City misled them as to legal

matters because the City had no obligation to provide legal advice to the Plaintiffs and Plaintiffs,

if at any time they relied on legal advice provided by the City, did so unreasonably and the City

has no legal liability therefor.Seventeenth Affirmative Defense

Plaintiffs are barred from recovery under their theory that the City misled them as to

factual matters because, even if the City or any of its officers misled Plaintiffs on any factual

matter, the City has no liability therefor.

Eighteenth Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by accord and satisfaction.

Nineteenth Affirmative Defense

The City has not deprived Plaintiffs of all economic use of their property, or even of any

economic use of their property, which property as of the date of this Answer retains at least the

value it had at the time Plaintiffs acquired it.

Twentieth Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by the doctrine of laches.

Twenty-First Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by estoppel.



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Twenty-Second Affirmative Defense

Plaintiffs claims are barred, in whole or in part, by the doctrine of unclean hands.

WHEREFORE, the City of Truth or Consequences requests that the Court:

A. Enter declaratory judgment in favor of the City as to Plaintiffs claims alleging

violation of the Federal Aviation Act and other federal law;

B. Deny Plaintiffs request for a preliminary and permanent injunction;

C. Dismiss Plaintiffs claims seeking damages against the City, in their entirety;

D. Dismiss all other claims set forth in the Complaint;E. Grant the City its costs and attorney fees incurred in this matter, to the maximum

extent allowed by law; and

F. Enter such other and further relief as the Court deems just and proper.

Respectfully submitted,

Coppler Law Firm, P.C.645 Don Gaspar AvenueSanta Fe, New Mexico 87505505.988.5656/s/ Gerald A. Coppler Gerald A. Coppler John L. AppelThomas R. Logan

Certificate of Service

I HEREBY CERTIFY that on the 10 th day of September, 2013, I filed the foregoingelectronically through the CM/ECF system, which caused all counsel of record and parties pro se to be served by electronic mail, fax, or USPS, as more fully reflected in the Notice of ElectronicFiling.

/s/ Gerald A. Coppler


10-2013: city of truth or consequences answers hot springs motorplex/land dev. lawsuit

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