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Home / Articles / News / Local News /  Under the Overlay
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Construction continues on retail spaces near the Walmart Supercenter.

Under the Overlay

A look behind the enforcement of the city’s plan to reshape the Southside.

January 29, 2014, 12:00 am

New Mexico’s highest court is gearing up to hear a dispute between the city of Santa Fe and the State of New Mexico over the proximity of liquor sales to elementary schools.

That the city is taking the case to the state Supreme Court—after losing in the state’s appellate court—signifies that Santa Fe is putting its money and its legal muscle behind a specific vision for the Southside.

At issue is whether Western Refining Southwest Inc., the parent company of a Giant gas station, can sell liquor at 5741 Airport Road. Across the street from the gas station sits Sweeney Elementary School, home of the Cougars, a Santa Fe public school with an enrollment of 634 kindergarteners through fifth graders—all who are classified by district officials as “economically disadvantaged.”

That classification reflects the larger profile of Santa Fe’s Southside. And it’s part of the impetus behind city action restricting the advertising and sale of alcohol on the Airport Road corridor that stretches from NM 599 to Cerrillos Road. State law already allows cities to restrict alcohol sales near schools, and that’s at the crux of the current court battle.

In the meantime, Santa Fe also kicked it up a notch with new local rules. In January of 2013, the City Council unanimously approved an ordinance introduced by District 3 City Councilor Carmichael Dominguez that previously had been more than a year and a half in the making. The rules established what’s known as the “Airport Road Overlay District,” which imposes stricter rules on businesses in the corridor.

The more businesses that sell alcohol in an area, the greater likelihood that teens have access to alcohol.

A significant new regulation bans the sale of “minis,” bottles of alcohol 8 ounces or smaller. It also restricts advertising of alcohol. New liquor retailers, it says, cannot be constructed within 500 feet from parks, playgrounds, youth facilities, churches, hospitals, treatment centers, county social service offices and schools.

The provision was supported by some Southside youth like Devin Vasquez, an 18-year old Capital High School student who told city councilors that he “isn’t particularly proud of where he lives,” according to the Jan. 9, 2013 meeting minutes. Ramona Flores- Lopez, chair of the Education Committee for the Santa Fe Underage Drinking Prevention Alliance, later noted to councilors that the 2010 census documented that 40 percent of the city’s population below the age of 18 reside in the Southside. To teenagers like Vasquez, that means seeing “broken beer bottles, crushed beer cans, and a lot of advertisements for alcohol on Airport Road,” in his neighborhood.

Shanette Jaramillo, another Capital student, encouraged City Council to pass the resolution because “she is afraid to walk on Airport Road,” notes the meeting minutes, “and tries to avoid it because it feels really unsafe.” Cutting down on alcohol vendors, she said, “would make it a more comfortable place to be and more safe for people my age and younger to spend more time.”

Community advocates say the city needs to keep up the fight. The more businesses that sell alcohol in an area, the greater likelihood that teens have access to alcohol. Increases in liquor sales also lead to more drunk driving, violence, child abuse and other social harms, according to research cited by the Santa Fe Prevention Alliance (the organization’s recently changed name).

“Additionally, the advertising that comes with such outlets has also been shown to negatively impact youth and trigger an increase underage consumption of alcohol,” reads a statement the group issued in support of the city’s litigation. “Since the Giant convenience store is located directly across the street from two schools as well as close to a residential substance abuse treatment center, this is a highly inappropriate venue.”

BEFORE THE COURT

The court case boils down to a dispute over what matters more, the boundary of a building or the boundary of property.

City lawyers have argued that the Giant gas station shouldn’t be permitted to sell booze because its property line is 155.05 feet from Sweeney Elementary School, closer than the 300-foot barrier allowed under state law. Western Refining is backed by the state Alcohol and Gaming Division of the New Mexico Regulation and Licensing Department, which is represented by Attorney General Gary King in the case. The state measured the distance from the school’s property line to Giant gas station itself—not Giant’s property line. That distance is 377.53 feet.

The New Mexico Court of Appeals sided with the state on the issue, and now it’s up to the five justices on the state Supreme Court to permanently settle the matter.

The city says the Alcohol and Gaming Division’s measurement standard is incorrect because the state law states “the location of licensed premises in relation to churches or schools shall be the straight line distance from the property line of the licensed premises to the property line of the church or school.”

The state counters that its Alcohol and Gaming Division regulations call for the shortest line of direct measurement between “the actual limits of the real property of the church [or] school” and “the licensed premises where alcoholic beverages are proposed to be sold.” (State agencies create regulations to help them implement state laws. In this case, the city argues that the executive branch agency bypassed the state Legislature’s intent in creating a different measurement standard.)

After the city won the first round of litigation in a District Court case filed by the Alcohol and Gaming Division, the state prevailed at the next level.

In its ruling, the appeals court cited a 1992 case in which the University of New Mexico objected to the transfer of a liquor license to an establishment across the street from a service center building and parking lot owned by the University. In that case, the state Supreme Court went on to rule against the University, focusing on the definition of “school” and holding that the measurements can be made from the premises where activities—learning, praying or selling alcohol—actually occur. A school may own a property, the reasoning goes, but that doesn’t mean the entire area is being used for education.

Earlier this month, New Mexico Supreme Court Chief Justice Petra Jimenez Maes granted the city’s petition seeking review of the case.

FEW RESULTS FROM OVERLAY PLAN 

Back at the local level, the city is keeping an eye on liquor establishments within the overlay district. Other than requesting that an alcohol vendor take a sign down, so far, there have been no issues with compliance of the liquor provisions in the ordinance, says City Land Use Director Matt O’Reilly. But, he notes that the city agreed to push enforcement of part of the ordinance back until late May 2013 to allow establishments to get rid of miniatures still in stock. Walgreens, he noted, had “boxes upon boxes” of them in the supply room that it couldn’t transfer to another store because of state law.

At a recent stop at the Walgreens, the liquor section was not selling miniatures.

But adjacent to that store is the Giant gas station—right across the street from Sweeney Elementary School. That showcases the limitations of imposing restrictions on where new liquor vendors can establish their business within the overlay zone. If the ordinance is going to change the Southside, that change might take a while; and the old liquor vendors will still be there.

Miniature bottles of alcohol can no longer be sold on Airport Road.

The tight restrictions on alcohol sales underscore larger health issues that confront many families who live here.

A 2013 Community Health Profile, a joint city-county study undertaken with the help of Christus St. Vincent Regional Medical Center, reported a troubling statistic: The alcoholrelated death rate for Santa Fe County’s Hispanic residents is twice that of non-Hispanic whites and 25 percent higher than that for Hispanic New Mexicans as a whole. In 2011, the report estimates, 96 county residents died as a result of alcohol.

Now consider this: The Hispanic population of Sweeney Elementary students alone is 91 percent—a reflection of the neighborhood’s larger demographic picture.

And those residents don’t have easy access to health care. “There definitely is a lack of health care services in the area,” says Dominguez. “We certainly need more dentist offices and health care clinics.”

Part of the overlay district is an attempt to attract medical providers by waiving construction permit fees for “medical practitioners including physicians, dentists, chiropractors, alternative medicine providers and clinics.”

But a year into implementation of the district, no one has sought a waiver, says O’Reilly. The same holds true for grocery stores, farmers markets, day cares, schools, bookshops and recreational facilities. The ordinance allows for the city to waive construction permit fees for those entities and others in order to “promote a healthy and safe environment” in the area. The city’s hospitals, like Christus St. Vincent, remain further northeast. Presbyterian Medical Services is planning to open a 30,000-square-foot outpatient facility directly across from Christus in the central area of the city.

There is some hope for Southside residents. The US Department of Veterans Affairs plans to build a roughly 7,000 square-foot Community Based Outpatient Clinic in Las Soleras subdivision near the intersection of Cerrillos and Beckner roads.

And Presbyterian owns a 40-acre parcel in the same subdivision. For years there have been talks of a hospital there. However, Jim Jeppson,

administrative director of real estate for Presbyterian, tells SFR there are no immediate plans for its Las Soleras tract.

“There definitely is a lack of health care services in the area.”

He notes the healthcare provider bought the property because of its easy access to the freeway but that there are “not current plans” for the site—to either build or sell the plot.

“The time has not come for us yet,” he says of the site.

The same goes for grocery stores. A Walmart Supercenter that opened in 2011 is one of the only options for home cooking supplies in the southwest sector. A few small grocers and specialty stores for meat and bread have popped up in strip malls, but area residents still have to travel to Zafarano Drive to get to the next nearest options.

Not every Southside resident has trouble accessing services.

Barbara Otero says she’s been living in her Las Acequias home for 30 years now and she says she “has the best of both worlds.” The subdivision is near the intersection of Cerrillos and Airport roads, which puts her closer than some Southside residents to grocers, gas stations and restaurants, she notes. “I have easy access to everything,” she says.

But she supports the intent of the overlay zone, particularly provisions that would limit alcohol sales. She says she shops at Albertsons, but would like a grocery store closer by.

Javier Romero agrees with that. A high school senior and Southside resident, he says, “there’s not really a lot of stores you can go to get something healthy” in the neighborhood.

“Stores that do have some healthy stuff, such as Albertsons, are very overpriced,” he says. “And the stuff you find at Walmart is preservatives… It’s always good to keep a clean diet. It’s what gets you [through] the day. So it’s kind of hard when you don’t really have access to that kind of stuff.”

 

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