Squeezing the Life out of a Desert Wetland
On June 29, just before dusk, I stood in a crowd of about 130 people on a bluff overlooking the San Antonio Oxbow wetland in Albuquerque, New Mexico. Below us, 40 acres of marshland stretched east to the Rio Grande. On the horizon, the Sandia Mountains glowed pink in the fading light.
A little earlier in the season, huge flocks of red-winged blackbirds would have been gathering at this time of day, chattering and swirling over the Oxbow before settling down to roost for the night. But on that warm evening in late June, the place was surprisingly quiet.
We had assembled here to show our support for the wetland and our opposition to a 76-home development planned for the adjacent 23-acre Poole property, the last piece of available land on this bluff.
According to Audubon New Mexico executive director Jonathan Hayes:
The San Antonio Oxbow Wetland has reached its maximum capacity for development around its perimeter. Any loss of buffer habitat will result in the loss of the functioning of this critical wetland….
I first heard of the Poole property a year ago, when my local TV news ran a report about the contested “Overlook at Oxbow” plan. Since I write about real estate in the Southwest for Forbes.com, a proposed development facing neighborhood opposition sounded like a real estate story. The Oxbow added an intriguing element, but the outcome seemed pretty certain to me: it couldn’t possibly be legal to build houses right up against a wetland.
I started by talking to Dr. Susan Chaudoir, an environmental researcher and the lead organizer for the opposition group. She told me the first hint of the developers’ plan had emerged last August, at a facilitated meeting with adjacent neighborhoods. As word spread about what the developers wanted to do — “which was to build houses so close to the wetland, so close to the eroding bluff, and to try to squeeze high density into such a small space” — many more people got involved.
The original site plan, proposed by Gamma Development and Consensus Planning, showed a gated community of 73 single-family houses. Jim Strozier of Consensus described it as “a sustainable neighborhood development plan for the property” that is “permissive under the current zoning” and “that includes open space and homesites consistent with the neighborhood.”
Extending into the wetland, the Poole property itself supports a rich variety of wildlife, including three endangered species. The whole area lies on a major bird migration route. When New Mexico’s iconic sandhill cranes arrive every year, they roost along the edge of the Oxbow right below the project site.
In an open letter of support, Audubon New Mexico’s Hayes describes the Oxbow as “incredibly important habitat with valuable, multi-structured vegetation that provides habitat for a large diversity of species.” He called the Poole property “one of the few remaining grassland buffers to the wetland” and argued that by eliminating this buffer, the proposed housing development “would greatly compromise the Oxbow.”
Chaudoir told me her group was primarily concerned about the potential damage to the wetland from demolition and construction activity on the bluff above it. But they also felt the city was failing to enforce some of its own regulations in its rush to approve the site plan.
Much of the debate over the proposed project involves interpretation of the city’s new Integrated Development Ordinance, which gives the Planning Department substantial power. The IDO is the culmination of a three-year effort to consolidate dozens of codes and sector plans into a single set of regulations that would cover all zoning and development activity throughout the metro.
The IDO requires any application for a development adjacent to a “Major Public Open Space” — like the Oxbow, which is owned and managed by the city’s Open Space Division — to start with a “sensitive lands analysis.” But no such analysis had been completed or required, said Chaudoir.
Like an environmental impact study, I thought.
Not exactly. According to the IDO, the purpose of a sensitive lands analysis is to identify any special challenges presented by the proximity of a planned development to sensitive lands (like wetlands and eroding bluffs) so that the Planning Department staff can work with the applicant to find solutions to these “site constraints.”
For example, early in the application process for the Overlook at Oxbow, the developers and planning staff established that construction would be impossible at the easternmost portion of the project site — where the bluff continues to erode and a steep slope descends into the wetland.
So in December the developers submitted a revised site plan, which used the “cluster” approach to reduce lot sizes, avoid the eastern edge of the site, and increase the total number of planned homes to 76.
Under the IDO, clustering is a development approach that permits smaller-than-regulation lot sizes if grouping houses together leaves a greater amount of open space, especially near sensitive lands. A cluster is limited to 50 houses. The new site plan labeled its 76 lots as belonging to two clusters.
The cluster concept quickly became one of the most contentious aspects of the case.
The intensity of public reaction to the idea of a gated community of small-lot houses and private “pocket parks” on this spot has a lot to do with the site’s former owners.
Rufus G. Poole was one of the principal attorneys who helped the Taos Pueblo in their fight to regain control of the Blue Lake. Poole died in 1968, but his widow, Suzanne Hanson Poole, traveled to the White House in 1970 in his stead, along with a delegation of Taos Pueblo Indians, when President Nixon signed the bill giving the sacred Blue Lake back to the pueblo. It was the very first case of seized land being restored to Native American control.
The Pooles moved to New Mexico in 1957, when the west side of Albuquerque was nothing but open ranchland. They bought 388 acres and built a stylish, 6,000-square-foot adobe revival house on a site overlooking the Rio Grande. At the time, the river flowed right underneath their bluff, making a bow-shaped bend.
In a 1960 feature on the couple’s unique home, the local newspaper reported:
The view is easily the most magnificent in the Albuquerque area. Santa Fe can be seen on the left and four ranges of mountains stretch off in the distance to the right.
By the end of the 1960s, the U.S. Army Corps of Engineers had completed a “rechannelization” project that straightened the Rio Grande at that point, moving the river away from the Pooles’ bluff. A marsh formed where the bend had been and eventually became the San Antonio Oxbow wetland.
A musician and mezzo-soprano, Suzanne Hanson Poole was known throughout New Mexico for her generous support of the arts, education, and the environment. She co-founded the Santa Fe Opera, helped fund Albuquerque’s first concert hall (Popejoy), and provided ongoing financial support to the New Mexico Symphony Orchestra as well as numerous educational and environmental organizations.
Suzanne Poole opened her home to concerts, weddings, Easter egg hunts, and countless other public and private events. She wanted to share that beautiful place and hoped her property would become a “public amenity,” as Chaudoir puts it.
In 1984, the Coors Corridor plan (one of the city’s many sector plans) was established to guide planning and development in the portion of the city that extended along the west bank of the Rio Grande. This plan explicitly recognized the importance of preserving the city’s wild spaces, especially the bosque (riverside woodland). It emphasized the special and vulnerable nature of the San Antonio Oxbow wetland and expressly stated:
The Oxbow Marsh and the bluff which overlooks it shall be protected and preserved through designation of this area as a wildlife refuge with limited access for scientific and educational purposes. … This 37-acre wetland area provides the only marshland/aquatic habitat in the urban area. It is a unique feature of the bosque and Rio Grande floodplain whose fragile environment must be protected. (Policy 3)
After Suzanne Poole’s death in 2012, her 23-acre property was acquired for about $2.5 million by Daniels Family Properties LLC, best known for its chain of funeral homes.
Then the property sat quietly for almost seven years. Besides the main house, a separate caretaker’s house, and a few smaller structures, the parcel consists of grassland and trees — effectively, open space.
By 2015 the city had begun creating the Integrated Development Ordinance. In order to bring the whole city under a single zoning and development umbrella, the IDO “rescinded” all previous long-term sector plans — including the Coors Corridor document with its “wildlife refuge” protection for the Oxbow area.
The IDO went into effect in May 2018.
By August, Daniels had hired Gamma and Consensus to produce a site plan for the Poole property.
The land is currently under contract to be sold to Gamma for $4 million. When Chaudoir’s group inquired last year about purchasing the property themselves, Gamma quoted them a price of $12.1 million.
The people fighting this planned development are often described — in news stories and by city staff — as “neighbors” of the Poole property. Sometimes they’re described as “neighbors who just don’t want their view obstructed.” In official city documents, they are “the public.”
But the parties interested in preserving this property and the wetland it buffers include individuals and neighborhood associations from all over the city and elsewhere, as well as the mayor of Albuquerque, three state senators, and both U.S. senators for New Mexico.
A long list of organizations have also declared their support — Audubon New Mexico, the Central New Mexico Audubon Society, the New Mexico Land Conservancy, the Rio Grande Agricultural Land Trust, the Friends of Valle de Oro, the Trust for Public Lands, and the ABQ BioPark Conservation Committee, just to name a few.
In December, the Development Review Board (DRB) approved a variance permitting the new subdivision to have a single entrance. That entrance — 300 feet from the Oxbow — would add an estimated 740 vehicle trips per day to a cul-de-sac onto which multiple existing subdivisions already empty.
The opposition group hired an attorney and filed an appeal of the DRB’s variance approval.
I published my Forbes.com article at the end of January, but by then I had joined the cause. More than that — I had become obsessed.
Well-meaning friends would ask how the case was going, but once I started trying to explain any single aspect — the ecological importance of the Oxbow, the role of the Pooles in the city’s history, the intricacies and vaguenesses of the IDO — I couldn’t shut up. (My friends stopped asking about it.)
Three endangered species are present on the Poole property — the southwestern willow flycatcher, the New Mexico meadow jumping mouse, and the Rio Grande silvery minnow, considered one of the most endangered fish in North America and the subject of intense restoration efforts in New Mexico over the past two decades.
Two “threatened” species are also present on the site, as well as 17 migratory birds that appear on the Fish & Wildlife Service’s Birds of Conservation Concern list.
So what about the Endangered Species Act?
I spoke to environmental attorneys and nonprofit organizations that advocate for wild places, but even though the new rules drastically weakening the Endangered Species Act were still to come (in August 2019), Fish & Wildlife Service offices had already received guidance in April 2018 that seemed to instruct them to stop enforcing the ESA.
In any case, with the federal administration attacking — or simply suspending — every environmental protection on the books, the attorneys and nonprofits trying to defend the planet had their hands full.
Throughout the Overlook at Oxbow case, the opposition group has pointed to evidence that Planning Department staff were actively and inappropriately advocating for the project.
One job of the planning staff is to help applicants navigate the city’s regulations. The developers and the planning staff spend a lot of time together, and they’re all from the same world. But to the public, the line can seem blurry.
For example, the Environmental Planning Commission (EPC), which would review and vote on the site plan, is a volunteer citizen board. But of the eight current commissioners, six are employed in fields directly involved with real estate development.
Jim Strozier of Consensus Planning, who represents Gamma in this application, has served since 2010 on another board within the Planning Department, the Albuquerque Development Commission, which advises the city council on all redevelopment matters.
As evidence that Gamma had worked hard to comply with the planning staff’s concerns about the project, the developers pointed to the “25+ meetings” they had had with city staff.
But to the taxpayers for whom those city employees work, all those closed-door interactions — which sometimes involved policy decisions and interpretations of regulations — suggest that the staff treat the developers more like co-workers than applicants.
Indeed, after all those meetings, the Planning Department formally declared the application complete and ready for EPC review — before the application had actually been submitted.
And it later turned out that Gamma had requested that variance allowing a single entrance because the planning staff had instructed them to. At the variance appeal hearing, Strozier said the developers didn’t need to waive existing regulations on that point and that it would have been no hardship to add a second entrance.
The EPC voted on the Overlook at Oxbow site plan in March. An EPC hearing is a quasi-judicial proceeding. This one involved seven hours of presentations, public comments, cross-examination, and discussion, with special attention to the sensitive lands analysis, clusters, setbacks, “areas of consistency,” and the FEMA flood zone (which overlaps some lots at the east end of the site plan).
Drainage was another big issue. Strozier explained that all surface water in the new subdivision would be directed to an existing sedimentation pond, which already filters the water entering the San Antonio Oxbow wetland and the Rio Grande from several nearby subdivisions.
A “public force main” would pump stormwater and sewage from the easternmost lots — those closest to the wetland — up to the level of the drainage system for the rest of the property.
Thirty-nine members of the opposition group spoke during the public comment portion of the hearing. These ordinary concerned citizens are also professionals and experts — researchers, attorneys, engineers, architects, even former employees of the city’s Planning Department.
They had studied the 540-page IDO, which they cited frequently and precisely, pointing out requirements that the site plan failed to meet, as well as inconsistencies and omissions within the IDO itself.
At many points during the hearing, the commissioners asked the planning staff for clarifications, interpretations, and opinions. One commissioner said, for example, “We’re not trained to be sensitive land experts.”
To counter the opposition group’s emphasis on Suzanne Poole’s philanthropy and environmentalism, Gamma and Consensus have tried to paint her as a developer because she sold land for the construction of new neighborhoods.
As Albuquerque grew, she did sell much of the land around her homestead to residential developers. She also sold land for the building of a school, and some of her land she donated to the city.
Several people who had known Suzanne Poole personally spoke at the EPC hearing. One of these was world-renowned architect Antoine Predock.
Predock first gained national attention as the architect for La Luz, the subdivision just north of the Poole property. Though built around 1970 (long before the IDO), La Luz employed clustering to leave a large portion of the site open to the bosque.
Now in his early 80s, he surprised the crowd with an impulsive offer to fix up the Poole house for free (eliciting a cheer that was quickly shushed by the presiding commissioner).
In the end, the EPC accepted the planning staff’s official recommendation and voted 5–1 to approve the site plan, delegating authority to the DRB to iron out the many remaining “technical issues” (like the public force main). The DRB is part of the Planning Department and is chaired by a member of the planning staff.
So the planning staff advises the developers on their application. The EPC, in reviewing that application, looks to the planning staff for advice — in this case, for example, the planning staff state that the new subdivision will have no negative effects on the Oxbow because the developers say it won’t. The EPC makes a decision on the application based on the recommendation of the planning staff, then hands the case back to the Planning Department (the DRB) and gives the staff the authority to deal with any unresolved issues.
That doesn’t look much like citizen oversight to me.
The opposition group, through its attorney, immediately filed an appeal of the EPC’s approval. A second appeal was filed by an individual neighbor of the Poole property (who is himself a retired attorney). The city council heard the combined appeals in August.
In response to a comment I submitted ahead of that meeting, I received an e-mail from one councillor’s office informing me that the IDO
added many protections for Open Space and Sensitive Lands that our previous zoning code didn’t offer. … The code calls for these places to be avoided and if development is allowed to occur near them that any impacts should be minimized.
Sensitive lands must be avoided except when development is allowed near them. That’s not much protection. And “minimized” impact isn’t quantifiable.
In the public comment section of the city council meeting, residents opposing the site plan reminded the councillors that Albuquerque’s natural spaces, especially the Rio Grande and the bosque, are part of what makes the city special and what draws people here.
This year is the 48th annual Albuquerque International Balloon Fiesta, which attracts nearly 900,000 visitors from all over the world. It’s a dramatic and much-photographed nine-day spectacle, in which the river and the bosque figure prominently.
But some of the councillors were more concerned about the rights of the property owner. One pointed out that “we still live in a free country” and that property owners have the right to do whatever they like with their land “within zoning laws.”
Another councillor insisted that the private landowner in this case has “a constitutional right … to develop the property.” Before moving to New Mexico, I was managing editor at the Papers of James Madison project, and I’m quite certain the U.S. Constitution says nothing about residential development.
One councillor concluded that in this matter the city council didn’t have all the information, “and I think we’re kind of guessing about a few things.” She continued: “I believe the EPC is a very good board that knows how to discuss these things. They know the rules. They’re very good at this.”
So the city council, the last word on zoning and development matters for the city, voted unanimously to remand the case back to the EPC, the body they felt was best equipped to review the site plan and interpret the IDO.
But as I’d learned at the EPC hearing, all roads lead to the Planning Department.
The Integrated Development Ordinance includes a requirement that it be reviewed and updated annually. The first annual update began in September. In a series of meetings, the Environmental Planning Commission is reviewing several hundred proposed changes to the IDO.
It’s unclear whether those changes will be in effect by the time the EPC reconsiders the Overlook at Oxbow site plan or how those revisions to the IDO might affect the project.
In the meantime, the repeal of the Clean Water Rule in September made it easier for developers to build next to wetlands. It also left “the vast majority of New Mexico’s surface waters federally unprotected,” according to the Environment Department of our drought-prone state.
But the opposition group clearly has no intention of backing down.
They have managed to cover their significant legal expenses to date — thanks to an ongoing GoFundMe campaign, successful fundraising events, and a donations jar at that June gathering — but if they end up appealing in district court, the costs will mount again.
When I asked a woman in the group what we would do about the expense of taking the case to court, she said, “Maybe we dip into our retirement funds.”
The Oxbow is lucky to have champions with retirement funds, but is that what it takes for the public to participate in city government?
Over the past year, Chaudoir has met with state legislators, land use commissioners, environmental organizations, conservation investors. Her group still hopes the Poole property can be acquired and preserved — whether as city open space, a visitor center, or a small research station. Rather than let this “urban oasis” be lost forever, we could protect it as the kind of natural place that sustains both wildlife and humans.
