In Zone A there are less than one dozen businesses. All of these businesses are tourism based and suffer from seasonal fluctuation. As far as is known, only one business, the Dolan House, actually employs anyone besides the owners and their family and even these are part-time, seasonal positions.
The historical ordinance reads:
Pursuant to Section 4-37-1, NMSA 1978, the Board of County Commissioners of the County of Lincoln is empowered to enact an ordinance which will regulate the Lincoln Historic District. Such ordinance will serve a valid public purpose and will otherwise serve to promote the prosperity, public health, safety, and welfare of the residents of the County of Lincoln. (p. 1)
Note this carefully: The historical district must:
- Serve a valid public purpose. Zone A has elected to use its minimal amount of historical validity as its sole source of income. The tourism industry is one of the least dependable sources of income and only the few Zone A businesses benefit while this practice actually harms the Zone B residents.
- Promote prosperity of the residents. The ordinance does not promote the prosperity of the residents – it only promotes prosperity for the business owners. The residents, especially of Zone B, face increased financial requirements (such as replacing a roof only because of its color) to adhere to the board’s petty requirements – even though no tourist will ever think anything is out of place.
- Promote public health of the residents. The board does little to effect this aspect in either way although the focus is on the appearance of the residents’ home so as to press them into conformity to the “historical” architectural standards and not on what will help the residents live better lives.
- Promote safety of the residents. The board inhibits the role the department of transportation has in providing safe roads through the district. Again this year, someone drifted off the road and was killed in part because the board fights to keep the road (which did not exist in the Territorial period) as “historical” as possible.
- Promote the welfare of the residents. The ordinance and the board’s application of it does not promote the welfare of all residents – only the favored ones. Those not favored are not even allowed to put up a carport to protect their vehicles from the weather! Those who are favored are most often either wealthy enough or secluded from sight enough to be free of the ordinance and have already built themselves a garage or a carport! But someone who moves into a house that didn’t have a garage has to spend a lot of money on lawyers to protect themselves from the oppressive bullying of the board over a matter that no tourist will ever notice.
The ordinance does not accomplish the requirements of the law it is derived from. The ordinance is supposed to serve the interests of the residents and it is not to serve the interests of only a few businesses and it certainly is not supposed to serve the interests of the tourists!
At the April 2018 LHPB meeting, board member Katherine Marsh, while explaining why the board had to deny a resident who reasonably requested permission to be able to place a concessions trailer in front of his own house on his own property in Zone A ten to twenty weekends a year, said, “I will be the first to stand up and say that the ordinance is not business friendly. But, on the flip side, we have businesses because of the ordinance, because it keeps Lincoln the way it is. So, I understand your struggle. I’m there.” Marsh recognizes the suppressive role the board has on local business initiatives and inadvertently displays the contradictory roles built into the ordinance.
In addition to the underlying responsibility to the source of its legitimacy from the state, the ordinance also reads:
Only those businesses and services whose exterior features contribute to the harmony and continuity of the area shall be permitted. Specifically excluded from the Historic District are any businesses whose wares are permanently displayed outdoors, including but not limited to trailer sales, automobile sales, junk yards, wrecking yards, rendering plants, slaughter plants, or heavy industry. (p. 16)
Marsh actually quoted this section from the ordinance (though it clearly does not apply to the resident’s temporary and sporadic request to put his concessions trailer out during peak tourist season flow and events.) What is displayed here is how the “historicity” of Lincoln is “preserved” by those who, like Marsh, are the business owners in Zone A. This is not an unbiased judge by any means.
The ordinance puts forth legal schizophrenia. Simple zoning would have solved the issue of what kind of permanent businesses can come into the zoned area. But the underlying primary responsibility of the ordinance is “to promote the prosperity, public health, safety, and welfare of the residents” whereas the practice and intent of the board is to arbitrarily decide which businesses have “exterior features [that] contribute to the harmony and continuity of the area.” A biased judge simply cannot adhere to the underlying responsibility of the ordinance because their primary focus is on their own business interests. The resident who has any business initiative will lose every time and, quite often, even businesses that attempt to adhere to the standards of the ordinance are driven off for the same reason – the protection and preservation, not of history, but of the existing business.
It is almost impossible to count how many times the board has driven out businesses because the already existing tourist-based businesses are supposedly threatened by the “changes” that might come into the historical district. Every business that comes in, even when it adheres to the obvious standards of the ordinance, is usually driven off within a few months or a couple years by either the petty, erratic, schizophrenic and oppressive demands the board makes or by the overall poor economics of relying on tourism alone.
The ordinance promotes only a monopoly for the few tourist businesses in Zone A (that don’t provide many economic benefits beyond their own tiny circle) but completely ignores and even suppresses the interests of Zone B homeowners. Because Zone B does not possess the historical validity of Zone A, there is no valid legal reason to have ever put Zone B under the historical ordinance.
People who seek to find employment in Lincoln quickly figure out that there simply is no future, no possibility for upward mobility, because the owners of the businesses have their niche securely locked in place by the ordinance. No business owner who is a board member will make any decision in favor of any issue that threatens this stranglehold. There simply is no future in Lincoln for anyone but the privileged few.
This is wrong!