A long, contentious legal battle over Edmund Healy’s Arroyo Hondo heliport, built in 2016 and challenged by local acequia parciantes, is in the news. The Taos Board of County Commissioners approved the heliport in a series of permits between 2011 and 2016, but a recent decision by the New Mexico Court of Appeals may have set an important precedent about what constitutes an “acequia.”
Petitioner-Appellant parciantes Eli Sanchez, Patricia C. Trujillo, the Arroyo Hondo Community Association, and Acequia Madre del Llano claimed that “a series of unpermitted and permitted construction ranging over a five-year period and culminating in the permit allowing construction of the heliport interfered with their access to and use of a lateral that runs across the Healy property to their fields.” The Appeals Court found that the county failed to meet the provisions of Taos County Ordinance 2015-02 Land Use Regulations that requires permission from the affected acequia’s commission for any construction activity that disturbs an acequia “in any way.” The court also determined that there were “exceptional circumstances” that excused an “untimely appeal” because of the piecemeal permitting process that occurred.
So how did this all come about? Back in 2011 Ed Healy started applying for permits from Taos County to build a bridge, retaining wall, parking lot, and heliport on the Healy property in Arroyo Hondo. A lateral, or what is often referred to in Spanish as a lindero or venita, of the Acequia Madre del Llano, separates the Healy property from that of three parciantes, two of whom, Sanchez and Trujillo, are Petitioners. In either 2011 or early 2012 Healy began construction of an unpermitted culvert that encased the lateral that delivers water to the parciantes’ fields. Healy claims he received permission from the brother of one of the Petitioners.
Later in 2012, Healy applied to the Taos County Planning Department for a Special Use Permit to build a driveway and bridge across his property. Though the permit application was for a driveway and bridge, a terraced retaining wall was also shown in the plans. But the retaining wall was not officially part of the plan and therefore when the Petitioners received notice of the Special Use Permit application they were not notified of the wall that would interfere with their lateral. The Planning Commission approved the permit anyway.
Healy submitted an application to build the retaining wall in 2015. This application didn’t require a Special Use Permit under an “Exceptions From Land Use Permit Requirements” ordinance, with the result that the Petitioners were not officially notified. They also claim that the retaining wall was actually built before Healy received the permit.
Finally, in 2016 Healy submitted a third application for an Administrative Permit (Admin.-003-2016 permit), to construct a helipad, parking lot, and driveway entrance. The Planning Director requested additional information, including, for the first time, the project’s impact on the onsite acequias. Healy was directed to comply with the Land Use Regulation Ordinance that requires submitting the application to the appropriate acequia commission for review. In Healy’s reply, he mistakenly identified the Acequia de La Plaza, whose commission had supported the helipad, as the only on-site acequia. The Acequia de la Plaza is not the onsite lateral that is being impacted by the construction of the wall. The lateral stemming from Acequia Madre del Llano, which was placed into a culvert upon which the wall was built, is the onsite acequia. Healy maintained that this lateral was not being maintained by the Acequia Madre parciantes.
On December 15, 2016, the Planning Director approved Healy’s application for the administrative permit subject to multiple conditions, specifically that Healy “shall provide the Planning Department with a letter advising that the lateral irrigation ditches were located within the site and are not maintained by the acequia and that the helipad and parking area [would] not interrupt, reduce, or change the flow of water to the parciantes of the lateral irrigation ditches.” Public notice of the decision was posted and “aggrieved” parties had 30 days to appeal to the Planning Commission.
The Petitioners entered a timely appeal, contesting that the retaining wall interfered with their traditional and legal access to the lateral’s headgate. The Planning Commission affirmed the Planning Director’s approval of Healy’s administrative permit with conditions similar to those stipulated by the Planning Department, that the lateral was not maintained and would not interfere with the flow of water to the parciantes. The Petitioners timely appealed the Planning Commission’s decision on May 30, 2017.
After a public hearing, Taos County affirmed the Planning Commission’s decision, and the Petitioners appealed the decision to District Court. It is here, in this court, that the heart of the matter was finally made clear: the court “gave deference to the County’s interpretation of the LUR [Land Use Regulation] and held that laterals were not intended to be considered acequias.”
Finally, the Appeals Court took up the case and determined the legitimacy of the two issues stated at the beginning of this article: (1) that a lateral that delivers water to parciantes’ fields is considered an acequia under the 2012-5 Land Use Regulations and therefore requires permission from the acequia’s commission before any construction or changes that might affect its function can occur; and (2) that because of the piecemeal application process by Healy, all of the Petitioners’ appeals were deemed timely.
In the Appeals Court’s thorough investigation of what constitutes an acequia under Taos County’s Land Use Regulation Ordinance, among other case law it relied on the New Mexico State Statute that governs acequias, NMSA 1978, Sections 73-2-1 to -68 (1851, as amended through 2019), that states: “every one of said community ditches beginning at the dam or entrance of the water in continued course to the end of the same, shall be considered as one ditch or acequia only.” The New Mexico Acequia Association joined the case as an Amicus Curiae, or “friend of the court” to represent the interest of the acequia community at large. The Court remanded the case back to the Taos County Board of Commission for a new hearing in May of 2021.
But it’s not over. Healy filed an appeal to the New Mexico Supreme Court in June and the Petitioners filed their response. The Supreme Court can decide to either hear the case or remand it back to Taos County, as decided by the Appeals Court. The Petitioners are cautiously optimistic that the Appeals Court decision will stand and that Taos County, with newly elected commissioners, will commit due diligence to this case that can potentially lead to the examination of other county land use regulations regarding the status of acequias.