May 4, 2023

The concrete plant next door: How lack of zoning has led to a fight over land use in Alto

A sign on State Highway 220 protesting a concrete batch plant coming to Alto.

Nicole Maxwell/New Mexico Political Report

A sign on State Highway 220 protesting a concrete batch plant coming to Alto.

For Mark Severance and his wife, a retirement home in the mountain community of Alto north of Ruidoso in southern New Mexico was more than just a dream come true. It was a place to heal.

The couple moved to Alto in 2018 after Severance’s wife, Barbara, finished breast cancer treatment, including a mastectomy and reconstruction.

“She said that she didn’t really feel better till she got out in this clean air and this environment and she just felt like she was in a cleansing type of environment,” Severance said.

The clean air and open spaces provided a healing environment for the Severances, but now the couple fear that may be coming to an end.

A local business owner plans to construct a concrete batch plant in the residential community off of New Mexico Highway 220 near its junction with New Mexico Highway 48. 

After learning about plans to build the concrete batch plant, community members rallied together and hired attorney Thomas Hnasko, who specializes in environmental law and has experience working with air quality concerns and deed restrictions.

Typically, Hnasko said, there would be zoning restrictions keeping a concrete batch facility out of residential and scenic areas.

“In this case, Lincoln County doesn’t have any zoning, which is the reason why we got into the problem to begin with,” he said.

According to Matthew Maez, a spokesperson for the New Mexico Environment Department, applicants for the air permits must demonstrate that the facility’s operations will not violate state or federal air quality standards.

“In most communities, proximity to residences is a zoning matter that is governed by local ordinances,” he said.

This is something that County Commissioner Tom Stewart, a former Lincoln County manager, brought up at a hearing before the Environmental Improvement Board and in submitted public comments. Stewart lives in Alto and spoke as a community member who could be impacted by the plant.

He said that he and the commissioners he served in the past as county manager “could never have imagined the need for zoning in such a pristine area as Alto when there is almost 5,000 square miles to consider for all conceivable purposes.”

It’s not uncommon for rural communities, especially conservative counties, to lack zoning ordinances. Many of New Mexico’s counties—ranging from San Juan and McKinley counties in the northwest to Otero County in the southeast and Socorro County in the central region—have no zoning ordinances and rely more on restrictive covenants and subdivision development.

Some Alto residents, including Severance, are now gathering signatures for a petition that would allow community members to vote to create a special zoning district. This wouldn’t prevent Roper Construction from building the concrete batch plant, but it would stop future industrial facilities.

For this measure to reach the ballot, 51 percent of the registered voters in the affected area must sign the petition.

“The point of the zoning district is not to do architectural control and you can’t have your doors painted yellow or whatever,” Severance said. “It’s strictly about land use.”

In the meantime, the Alto community has taken Roper to court alleging violations of deed restrictions. 

Hnasko explained that the deed on the four lots that Roper purchased limits types of activities based on noise levels. He said that the batch concrete plant would exceed those noise levels.

The deed restriction suit is one of two angles that the Alto Coalition for Environmental Preservation is taking to fight the planned facility. This coalition, which Severance chairs, formed in an effort to stop the plant from being built.

In addition to the deed restriction case that is pending before the district court, the coalition has also been fighting the air permit.

Initially, the New Mexico Environment Department denied Roper’s permit application, but he appealed it to the Environmental Improvement Board. The EIB has indicated that it will reverse the denial.

Hnasko said the coalition plans to appeal the anticipated permit approval to the state court of appeals.

Finding the right spot 

Ryan Roper spent years looking for the right property to serve the Alto and Ruidoso areas before he found the lots. Finding a good location was a challenge. The mountainous terrain and roads limited his options in terms of properties where a concrete batch plant could be built and efficiently operated.

“The area is growing, and there is a growing demand for concrete. There is only one concrete supplier right now, so there is a monopoly,” he told NM Political Report in an email response to questions.

Bringing in another concrete batch plant will lead to competition that could reduce the cost of concrete, benefiting everyone in Lincoln County, Roper said. He said Alto is the area with the most growth right now.

The plant could also help in the recovery from wildfire, he said.

The McBride Fire that burned through Lincoln County last year destroyed more than 200 structures. Roper said that means many people will be rebuilding and that the current plant cannot fulfill demand.

Initially, he wasn’t sure if the Alto location would work for a concrete batch plant due to concerns about air dispersion and whether it could receive an air quality permit.

But air dispersion modeling that Roper Construction had done for the site came back favorable and Roper said a concrete batch plant became a realistic option.

This modeling is one area that community members dispute. 

Roper said he needed a location close to customers due to the nature of concrete.

“Concrete begins to set up through the process of hydration after the water is mixed with cement inside the concrete ready-mix truck,” he explained.

If hauled long distances, the concrete generates heat and begins to stiffen. This makes it difficult to place and finish the concrete when it arrives at the final destination.

“Customers require short responsive turnaround times from the plant to the jobsite to avoid the placed concrete from setting up while they are waiting on the next load,” Roper said.

He said Lincoln County has large amounts of government-owned land and tribal land. For instance, a map of his service area shows that the trucks would have to cross a large section of tribal land to reach Cloudcroft.

“Road time is a big consideration both in cost and whether you can even provide the product where it’s needed,” he said.

Roper Construction currently operates a concrete batch plant outside of Carrizozo, but the Alto facility will reduce the trucking miles per load of concrete by 85 miles for sites in the Ruidoso and Alto areas.

Roper said this would help  economically and argued it would be good for the environment because it will be “drastically reducing the carbon footprint to provide concrete to our customers and reducing cost and wear and tear on local highways.”

The Alto property has good roads as well as immediate access to New Mexico Highway 48. It’s also a relatively flat lot with access to New Mexico Highway 220 and three-phase electricity.

Looking to the west, Roper said the neighboring property appears semi-industrial and that the owners likely bought their land for the same reasons that he chose the undeveloped land in Alto. 

“I always thought the batch plant fit right in,” he said. 

But community members disagree.

“It just does not pass a common sense check to put an industrial facility in the middle of a residential area,” Severance said.

He said there’s a nursery across the street that relies on rainwater, an RV park down the street and a church camp nearby that hosts children throughout the year.

Community concerns

Severance said he and his wife are concerned about pollution from the batch concrete plant and that it could possibly lead to her cancer returning. 

“There is medical literature published that if you are within a half mile or a mile of one of these plants, your chances of cancer go up quite a bit,” he said.

While their home is about four miles away from the facility, Severance said they still have concerns because air pollution can travel, especially in windy areas like Alto.

Mark Wilson and his wife live about 1,000 yards from the proposed facility. He submitted a public comment to the EIB in opposition to the plant. In that statement, he said that both of them require inhalers for respiratory conditions such as asthma and they are concerned that increased particulate matter or other emissions associated with the plant could “cause significant respiratory issues for us.”

Air pollution is not the only concern Severance expressed.

He said they’re concerned that runoff from the facility could contaminate water, including Little Creek and the aquifer that the community relies upon for drinking water.

Should contamination occur, some say that it may even impact the cave system in the Fort Stanton-Snowy River Cave National Conservation Area.

The planned concrete batch plant has some community members concerned that they may be forced to leave Alto in search of cleaner air. Severance said he and his wife are still weighing their options. 

Should they try to sell their homes, the presence of a concrete batch plant may lower property values, community members say.

Attempts to address concerns

Roper has attempted to address some of the community concerns, but says this resulted in him being called a liar.

Last year, he circulated an information sheet that says in uppercase letters “THE TRUTH.” 

In terms of pollution, the information sheet states that the plant wouldn’t have much impact on the air quality, arguing that emission control equipment will capture 99.9 percent of the crystalline silica and fly ash.

“You likely inhale more crystalline silica from paved and unpaved road vehicle traffic than you would from the Roper facility in a year,” the sheet states.

The sheet addresses groundwater contamination concerns as well as impact on wildlife and visual appearance, all claiming that there would be little to no impact.

Roper said the information sheet is “all verifiably true and talks to everything I’ve heard complaints about, but I got called a liar for it.”

Hnasko said that there are videos from Roper’s facility outside of Carrizozo that show the “plant spewing out dust and creating excessive dust.”

Roper said that nothing he can do will satisfy the community members who oppose the plant.

“They will only quit fighting this if I put the plant in a disadvantaged area. It’s all about ‘not in my backyard,’” he said.

Hnasko said that is a common response from developers to community objections, but that there are other places in Lincoln County where it would be more suitable.

He said community members don’t oppose concrete batch plants as long as they are in appropriate areas. The economic strata is not the determining factor, he said. Instead, Hnasko said the concrete batch plants should not be located near any residential area.

The Carrizozo facility is close to residents and Roper said he is on good terms with the people who live near that plant. 

Rick Emmons lives about a quarter mile away from the Carrizozo plant and provided Roper with an affidavit that says the work primarily occurs during typical business hours and that the noise from the plant has never negatively impacted his household.

Hnasko notes that the residential area near the Carrizozo plant was developed largely after the plant was already in operation.

Groundwork results in restraining order filing

Roper began work on the site on April 12, despite community concerns and ongoing court battles. The community members promptly filed a petition for a restraining order to stop these activities from occurring. 

“Roper indicated to this Court that construction would not begin until he obtained the necessary permits and this matter has been resolved. Nonetheless, Roper is altering the status quo by beginning construction of the proposed concrete batch plant, including substantial excavation activities for the haul roads,” the petition for a restraining order states.

In the response to the filing, Roper Construction Inc. wrote in court documents that the community members are mischaracterizing the work as “construction activities.”

“This is an inaccurate description of Roper’s activities, which have been limited to removal of existing vegetation, earthwork to level the site and create stormwater drainage, and building up the ground into berms to prepare his property for commercial and/or light industrial operations,” the company wrote.

Roper Construction says that it is engaging in pre-construction activities as allowed by the New Mexico Environment Department, nor does it violate deed restrictions.

“If property owners were prohibited from site clearing and earth leveling, the covenants would render the properties unusable for essentially any residential or commercial purpose,” Roper Construction argued.

Hnasko agreed with Roper that clearing of the land is not prohibited. But he said that isn’t what is happening. 

Hnasko said Roper’s activities are clearly preparation for a concrete batch plant, including the construction of berms to reduce the noise.

He described the activities occurring on the property as another piece of “evidence of bad faith” and that the company’s owner is “thumbing his nose at the court.”

“It was an absolute affront to the judicial system,” he said regarding the work that began in April.