"Neighbors Helping Neighbors"

La Mesa Community Improvement Association P.O. Box 8262 Albuquerque, NM 87198

May 18, 2009

Mr. Roberto Albertorio, Esq.
Zoning Hearing Examiner, Planning Department
City of Albuquerque
P.O. Box 1293
Albuquerque, NM 87103

Re: Project # 1007699, Application #09ZHE-80080, 7105 Central NE,
CONDITIONAL USE to allow retailing of alcoholic drink for off premise consumption
within 500 of a residential zone

Dear Mr. Albertorio:

The La Mesa property located at 7105 Central NE of the Ruben Sanchez Living Trust, David
Campbell agent, has requested a CONDITIONAL USE to allow for the proposed retailing of
alcoholic drink for off premise consumption within 500 of a residential zone in a C-2 zone.

The La Mesa Community Improvement Association (LMCIA) Board has voted to oppose the
granting of this conditional use. LMCIA understands that a conditional use shall be approved if
and only if, in the circumstances of the particular case and under conditions imposed, the use
proposed:
(1) Will not be injurious to the adjacent property, the neighborhood or the community;
(2) Will not be significantly damaged by surrounding structures or activities.
It is the burden of the applicant to ensure that evidence be presented to the record showing that the
above quoted criteria are met.

During the facilitated meeting on Wednesday, May 13, 2009, when asked by LMCIA Board
President Nancy Bearce, how the agent intended to meet the criteria for a conditional use special
request, Mr. Campbell replied they (his client) would abide by the law. While the law in this
case is city ordinances for zoning rules, and are honorable, city ordinances for zoning in and of
themselves do not reflect injury, absence of injury, damage or absence of damage. Therefore,
LMCIA does not believe the applicant, Ruben Sanchez Living Trusts, David Campbell, agent, has
presented a case that proves there would be no harm to my neighborhood.








"Neighbors Helping Neighbors"
La Mesa Community Improvement Association P.O. Box 8262 Albuquerque, NM 87198

7105 Central NE
Cond. Use-Retail Liquor
Page 2



The La Mesa Community Improvement Association (LMCIA) and others in the area, in
cooperation with the Citys Safe City Strike Force, have been successful in closing businesses that
sell liquor that have become public nuisances to the community over the past 5-7 years. These
businesses included the Blue Spruce, Last Chance, Rustys Cork N Bottle, Walgreen, and
Foxes/MGs. (see attached Safe City List dated August 28, 2008.) A little research indicates there
are cases of CVS/pharmacy that have become nuisance properties as they age (see attached).
More alcohol sales are not needed in the area and there are plenty of places of alcohol sales for the
community. If more liquor sales are added, the community will suffer as it did before.

La Mesa and the International District community deserves a chance to be healthy, not to be
condemned to the continued social ills of substance abuse, prostitution, disenfranchised and
disinvested -- all the signs of a community in the vicious cycle of blight.

Mr. Campbell, representing his client, CVS/pharmacy, does present to the La Mesa community an
opportunity to attract a much-needed business in the La Mesa, part of the International District.
And while LMCIA does not support the requested conditional use to sell liquor, we would support
the property owner in attracting a business other than the existing predatory title loan business that
would align its goals with the existing Near Heights Metropolitan Redevelopment Area and the
expanded MRA location in neighboring South San Pedro.

We have found CVS/pharmacy that have agreed with communities to not sell liquor. One such
instance exists, as cited in the attached article, in Flossmoor, IL, a village south of Chicago.
Additionally, CVSs competitor, Walgreen, has two stores close by that do not sell liquor (San
Mateo & Central and the Carlisle & Lomas stores) with the Carlisle store being one of the most
successful stores in Albuquerque. LMCIA feels CVS could be competitive, provide needed goods
and services, and partner with La Mesa and the International District to be a distinct store in
Albuquerque. We invite CVS/pharmacy to consider this option and the LMCIA Board stands
ready to discuss this option further.

In conclusion, the La Mesa Community Improvement Association (LMCIA) believes the
retail sale of alcohol at this location would be injurious to the neighborhood and that the
property owner has not met the criteria to show otherwise in Project # 1007699. The burden
of evidence is on the property owner or his agent, and the evidence is lacking.





"Neighbors Helping Neighbors"
La Mesa Community Improvement Association P.O. Box 8262 Albuquerque, NM 87198


7105 Central NE
Cond. Use-Retail Liquor
Page 3



However, if the property owner wishes to pursue discussions with CVS/pharmacy for a store
without retail alcohol sales, as was accomplished in Flossmoor, IL, LMCIA would actively work
to engage discussions for conditions, building height, restrictions, corporate engagement, hiring La
Mesa residents, ABQ Rapid-Ride plans, etc. to become an active, meaningful and sustainable hub
of the International District.

The La Mesa Community Improvement Association (LMCIA) is a recognized neighborhood association
under the City of Albuquerques ordinance O-92.

Thank you for your consideration in deciding against the conditional use and in support of healthy
community stabilization in the Near Heights Metropolitan Redevelopment Area.


Sincerely,


Nancy Bearce
Board of Directors Chair, La Mesa Community Improvement Association (LMCIA)
President, Sixth City Council District Coalition of Neighborhood Associations



cc: Mr. David Campbell, agent for the Ruben Sanchez Living Trust / 7105 Central NE / 87108



SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO

RUBEN SANCHEZ, TRUSTEE
OF THE RUBEN SANCHEZ LIVING TRUST, a
New Mexico Revocable Trust, and
CVS PHARMACY, INC., a Rhode Island corporation,
Petitioners/Appellants,

v . CV 2010-02316

THE CITY OF ALBUQUERQUE and
CITY COUNCIL OF THE CITY OF ALBUQUERQUE,
Respondent.


CITYS RESPONSE TO APPELLANTS
STATEMENT OF APPELLATE ISSUES

Pursuant to Rule 1-074 (L) NMRA, the Respondent, City of
Albuquerque and City Council of the City of Albuquerque, respectfully
submits its Response to Appellants Statement of Appellate Issues.
INTRODUCTION

This is a zoning case in which the City Council denied Petitioner CVS
a conditional use permit that would allow for the sale of alcohol on its
pharmacy premises at Louisiana and Central Avenue. The grounds for the
denial were that CVS failed to meet its burden of proving that the granting of
the conditional use would not be injurious to the surrounding property and
community.
The record establishes that CVSs prima facie showing was
substantially based on the contention that the negative effect of the sale of
alcohol on its premises, in this particular fragile community area, would
be avoided because (1) the Citys Planning Commission (EPC) conditioned
the granting of the requested conditional use permit, including, in part, by
prohibiting the sale of fortified wines, miniatures, and individual beers, and
(2) CVS maintains a corporate policy that is consistent with the conditions
imposed by the EPC, including the restriction on the specified liquor sales.
In this Response, the City asserts that it has rebutted CVSs claim
to have made a prima facie showing because (1) the EPC conditions
are unenforceable, as they are preempted by the State of New Mexicos
liquor laws that do not allow for such restriction in liquor sales, and
(2) a conditional use permit runs with the land and in the event of
a successor to CVS on the premises, CVS corporate policies become
irrelevant, and in any event, such policies are not enforceable by the City.
As a result of the foregoing, the City respectfully requests that this
Court affirm the City Councils decision.
STATEMENT OF ISSUES

Whether the Councils decision should be affirmed because it is
supported by substantial evidence that CVS failed to show that the sale of
liquor in its store would not be injurious to the surrounding neighborhood
and community.

SUMMARY OF RELEVANT FACTS

In order to bring to the attention of this Court the substantial evidence
of record in support of the Councils decision denying CVSs request for a
conditional use to sell alcohol on its premises, the City makes the following
statement of relevant facts
1
:
Citizens in the east central area and relevant community have a
genuine concern for health, safety, and welfare in their community and an
interest in this area not being a point of alcohol distribution. ZHE 39-40.
Public intoxication and drug addict issues have plagued this neighborhood
for 30 years. ZHE 353. The Residents of this east central area have
benefited from reduction of unsavory conditions in the community and do
not want that trend reversed. ZHE 42. The facts were undisputed that this
neighborhood area has one of three zip codes from which 20% of the local
jail population comes from. Bd. App 396. Also, the facts of record show
that Albuquerques DWI statistics indicate that this area has the top two of
four hot spots for both DWI arrests and DWI offender residents. ZHE
355.
CVS does not take issue with neighborhoods statements that the
neighborhood is fragile and has history of alcohol abuse related problems.
1
Annotations to the City Council hearing appear as CC; Zoning Hearing Examiner
proceedings appear as ZHE; Statement of Appellate issues appear as Stmt App Issues;
Board of Appeals proceedings appear as Bd App.

CC 11. CVS acknowledges that the residents of the area have worked for
thirty (30) years to pull [the] neighborhood out of from where it was. CC
11.
Notwithstanding its recognition of the nature of the surrounding area
and community, CVS asserts that the neighborhoods concern that the types
of undesirable people who will be attracted to the store, if it sells liquor, is
remedied by the conditions imposed on the requested approval by the Citys
Planning Commission. CC 14. Those conditions include a prohibition on
the sale of fortified wines, miniatures, and individual beers. CC 14. CVS
argues that the evidence in opposition to its application for a conditional use
is insufficient, stating: The facts presented in opposition to this request are
similarly not relevant to this particular property under the particular
conditions imposed. (Emphasis added) Stmt of App Issues at 23.
The districts court order in Baker v City, CV 2008-02996, enjoins
the City from enforcing restrictions on the sale of liquor contained in City
ordinances, including prohibiting sales of miniatures, fortified wines and
individual beers. Stmt. App. Issues, 9 (#4). The particular conditions
imposed by the EPC on approving the CVS application are unenforceable
as they conflict with New Mexicos liquor laws. See, Baker v City of
Albuquerque, CV 2008-02996, Memorandum Opinion and Order; Safeway
Stores, Inc v City of Las Cruces, 82 N.M. 499 (1971); Sprunk v Ward, 51
N.M. 403 (1947).

In arguing its case, CVS also asserts that its corporate practice mirrors
the imposed conditions, asserting that its corporate policy is not to sell
miniatures, fortified wines or individual beers. (Stmt of App Issues, 12
(#13); (CC 15). However, CVS corporate policies are not binding on any
successor in interest. CC18.
The Ta-Lin Market World Food Fare, which is located on the
southeast corner of Louisiana and Central Avenues, may sell liquor
but the Tal-Lin property is zoned SU-2, versus CVS C-2 zoning. CC
19. Consequently, Ta-Lin was not subject to a conditional use permit
determination. Bd App. 392. Additional differences between the impact
on the community by the sale of liquor at Ta-Lin, as opposed to the
proposed sale of liquor on the CVS property, was evidenced by the fact that
Ta-Lin is a destination center, meaning it draws people from all over the
state, versus CVS Pharmacy that will draw customers from the surrounding
neighborhoods. Bd App. 392.
ARGUMENT

I. STANDARD OF REVIEW.

The district court conducts a whole-record review to determine if the
municipality acted fraudulently, arbitrarily, or capriciously by determining if
the municipalitys decision was supported by substantial evidence. Hart v.
City of Albuquerque, 1999 NMCA-043, 9, 126 N.M. 753 (App), 975 P2d

366; Gallup Westside Development, LLC v. City of Gallup, 2004-NMCA-
10, 10, 135 N.M. 30 (Ct. App. 2003).
Regarding substantial evidence, this court must review the City
Councils decision by independently examining the entire record, keeping
in mind that a reviewing court may not substitute its judgment for that of
the Council. This court must view evidence in the light most favorable
to the City while also considering contravening evidence. Substantial
evidence supporting administrative agency action is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion. Appellant
must establish that there is no substantial evidence in the record to support
the decision. Gallup Westside, 135 N.M. at 34.
The ruling of an administrative body is not arbitrary and capricious,
unless it is unreasonable and without a rational basis. Rio Grande Chapter
of the Sierra Club v. New Mexico Mining Comn, 2003-NMSC-005 17,
133N.M. 97, rehg denied. It is also well settled that administrative
review is to be undertaken with deference to the governing body. Siesta
Hills Neighborhood Assn v. City of Albuquerque, 1998-NMCA-028 6,
124N.M. 670. Moreover, the actions of a governing body are presumed
to be valid. Embudo Canyon Neighborhood Assn. v. City of Albuquerque,
1998-NMCA-171, 8, 126N.M. 327. A party challenging the governing
bodys decision bears the burden of showing that the decision falls within
one of the statutory grounds for reversal. Id. at 8.

Administrative appeals under NMSA 1978, Section 39-3-1.1 (1998)
and Rule 1-074 NMRA 2003 do not pit one alternative result against another
with the reviewing court deciding the proper alternative. See, Hart v. City
of Albuquerque, 1999-NMCA-043 9, 126 N.M. 753, 975 P.2d 366. To the
contrary, this court must only determine if the decision of City Council falls
into one of the categories for reversal under Section 39-3-1.1 and Rule 1-
074. Unless the Citys administrative decision was arbitrary or capricious,
this court is required to affirm the City Councils s zoning decision. The
court cannot substitute its judgment for that of the City Council. Hart at 9;
Rio Grande Chapter of the Sierra Club v. New Mexico Mining Comn, 2003-
NMSC-005 17, 133N.M. 97, 61P.3d 806, rehg denied, (Jan.7, 2003).
Notably, a reviewing Court is required to affirm an administrative
decision that is supported by substantial evidence, even if the Court would
have found facts differently or reached a different result if it were the
decision maker in the first instance. Village of Angel Fire v. Wheeler, 2003
NMCA 41, 11. The Courts whole record review is performed to ascertain
whether the decision is an unreasoned action that was made without proper
consideration or disregard of the facts and circumstances. Village of Angel
Fire at 3.
II. THE COUNCILS DECISION IS SUPPORTED BY
SUBSTANTIAL EVIDENCE AND SHOULD BE AFFIMRED.

CVS accurately states that its burden of proof was to show package

liquor sales under the conditions imposed would not be injurious to the
adjoining property owners, the neighborhood, or the community. (Stmt
App. Issues 16). CVS substantially relied upon the EPCs stated conditions
that prohibited the sales of miniatures, single beer bottles, and fortified
wines. However, CVS acknowledges, at a minimum, that there is risk that
those conditions are unenforceable. Stmt App. Issues, 24. Additionally,
the district court in the Baker case specifically enjoined the City from
enforcement of local restrictions on the sale of alcohol, and New Mexico
case law supports the conclusion that the conditions imposed cannot be
enforced.
The Baker Courts injunction is consistent with New Mexico case
law holding that state law preempts a municipalitys authority to regulate
the sale of alcohol. See, Safeway Stores, Inc v City of Las Cruces, 82 N.M.
499 (1971) (holding that a municipality may not reject a liquor license
transfer that meets state law requirements); Sprunk v Ward, 51 N.M.
403 (1947) (holding that home rule powers are subordinate to the states
regulation of liquor sales). The fact that the Citys Board of Appeals and
LUHO were aware of the Baker case and the risk that these conditions
were unenforceable, is immaterial. See, Stmt. App. Issues, 24. What
is material and relevant is that the under the conditions imposed test
fails on the merits. Because the conditions imposed are unenforceable,
CVS fails to show that the sale of liquor on its premises under the

conditions imposed is not injurious to the community and surrounding area.
In an attempt to overcome the deficiency of the conditions imposed,
CVS alternatively claimed that the undesirable effects of alcohol sales at
its premises would be avoided because it maintains corporate policy that
accomplishes the goals of the unenforceable conditions. However, those
polices, unlike the granting of a conditional use permit, do not run with the
land. Consequently, those policies, no matter how laudable, may be either
changed by CVS or would not be binding on any successor in interest to the
CVS property.
CVS could not change the fact that this area is particularly fragile and
vulnerable, conceding such facts. The inability of the EPC conditions to
adequately address the actual risk to the area and community, by the sale
of alcohol at the CVS property, and the transient nature of CVS corporate
policies support the reasonable conclusion that the granting of the requested
conditional use would be injurious at this location under the conditions
imposed.
The sunset provision condition is also of no avail to CVS.
The evidence of record strongly rejects that the welfare and safety
of this area should be subject of a trial run. Too much has been
gained by the revitalization efforts over the past 30 years to subject
the area and community to the risk of losing all that has been gained.
While mere speculation or unsubstantiated opinion is not adequate

to sustain a Council decision, the record reflects concrete undisputed
facts that are specific to the detrimental effects of alcohol sales at this east
central area. See, Summary of Relevant Facts, pages 3-4 supra. Evidence
specific to the sale of liquor by either the applicant or at the proposed
location is legally sufficient to sustain a citys administrative denial. See
Dick v Portales, 118 NM 541, 544 (1994) (holding that the city council has
the discretion to deny a transfer on moral grounds if based on the moral
effects of the operation by a specific applicant or at a particular location.)
(Emphasis added.)
The specific evidence of record, See, Summary of Relevant Facts,
pages 3-4 supra, constitutes substantial evidence if a reasonable mind might
accept it to prove the conclusion reached by the Council-that the sale of
alcohol at this location would be injurious to the surrounding area and
community. See, Dick v Portales, 118 NM 541, 544 (1994). While some
of the evidence of record was opinion and generalized, the evidence specific
to the CVS site, showing the more than likely injurious impact of alcohol
sales in such an historically challenged area, compels the conclusion that the
Council decision is based on substantial evidence and should be affirmed.
The City Councils comments of record that preceded its unanimous
vote evidence the conclusion that the Council acted on substantial evidence.
CC 25-28. Their comments demonstrated that they made appropriate
consideration of the evidence of the fragile nature of the area and

community, the many years of revitalization efforts made in this east central
community, the unenforceability of the EPC conditions, and the failure of
CVS corporate policies to overcome that deficiency. Id.
REQUESTED RELIEF

The City respectfully requests that this Court affirm the Councils
decision denying the conditional use to permit the sale of alcohol at the CVS
premises.
Respectfully submitted by,
CITY OFALBUQUERQUE
Robert Perry, Esq.
City Attorney
_________________
Mark Hirsch
Deputy City Attorney
P.O. Box 2248
Albuquerque, NM 87103
(505) 768-4500





I HEREBY CERTIFY that a true and correct copy of the foregoing
document was mailed to opposing counsel of record this _________ day
of_____, 2010.
________________________
Mark Hirsch