# We don’t need no stinkin permit



## cda (May 29, 2019)

But Perea said regardless if two city employees gave approval for construction, the business is still in violation of city law because they had not submitted proper construction plans to the city.





Sunland Park, NM — Construction of a privately-funded border wall must be halted immediately, according to a cease and desist letter issued by the city of Sunland Park.

Mayor Javier Perea said Tuesday that the property owner did not have the necessary permits to erect the fencing, which was funded by "We Build the Wall, a national group that created a GoFundMe account to pay for border barriers.

Kris Kobach, the former Kansas secretary of state known for his hard-line immigration views, said he and the "We Build the Wall," group had received approval from two city of Sunland Park inspectors.

But Perea said regardless if two city employees gave approval for construction, the business is still in violation of city law because they had not submitted proper construction plans to the city.

Perea said the city attempted to contact American Eagle Brick Company, which owns the property, before construction began. But city inspectors were not first allowed on the property, he added.


The next day, the owner of the property later submitted an application to build a wall in the area but it lacked necessary information, Perea said.

"The staff has been reviewing those particular documents and have determined (the application) is incomplete and that the construction of the wall, at this point, is in violation of city ordinance," Perea said.

Perea said no survey or site plan was submitted. He said the application contained contradictory information but he did not provide details.


Under the city ordinance, walls cannot be taller than 6 feet, Perea said.

The privately-funded wall, which was expected to be completed Wednesday, is more than 20 feet tall. It goes up a 300 foot incline over mountainous terrain and extends seven feet into the ground.

Perea said American Eagle Brick Company faces fines that are double the cost of permit fees. He said the company will be fined every day it ignores the city's cease and desist letter. No dollar amount was provided.

The wall is by Monument One — an official marker at the spot where New Mexico, Texas and the Mexican state of Chihuahua converge at Border Highway West, near Executive Center Boulevard.

Perea said this a new issue for the city because the project is also on an international boundary. He said the city may need to consult other state and federal organizations, such as the International Boundary and Water Commission.

The Sunland Park mayor said he has been in contact with the New Mexico Attorney General's office and is going to reach out to the New Mexico Environment Department. 

Kris Kobach, of "We Build the Wall," announced the private fence's construction was nearly complete on Memorial Day. He is the general counsel for the "We Build the Wall" group and has been mentioned as a possible pick to lead the Department of Homeland Security. 
The "We Build The Wall" GoFundMe project was started by U.S. Air Force veteran Brian Kolfage. It is being led by a group that includes Kobach and former White House strategist Steve Bannon. American Eagle is responsible for the fines, not the GoFundMe group. 

More: US Rep. Veronica Escobar's town hall meeting disrupted by Trump, border wall supporters

The GoFundMe page calls the project "Trump approved." As of Wednesday, it had raised nearly $23 million of its $1 billion goal. 

The section of the wall being built in the El Paso area will cost between $6 million and $8 million, Kobach has said. 

Border Network for Human Rights executive director Fernando Garcia called the construction of the fence a political stunt by "white supremacists and xenophobic groups."

"They are part of the same militia groups that are posing as law enforcement agents, arresting migrants at gunpoint and promoting fear in Southern New Mexico," he said in a statement. "These extremist groups do not belong to our border community, they do not know our border and we will not allow them to come and define it for us." 


https://www.elpasotimes.com/story/n...-compliance-new-mexico-mayor-says/1263535001/


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## jar546 (May 30, 2019)

WARNING:
Any conversation here will be about the legalities of the permitting process and associated topics.
This WILL NOT turn into a political discussion.  WILL NOT.


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## tmurray (May 30, 2019)

Do the rules regarding procedural fairness apply in the US for permit issuance? If so, the municipality may have some exposure to liability.

I'm also curious about permit/approval requirements from state and federal departments for something constructed in close proximity to borders.


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## cda (May 30, 2019)

tmurray said:


> Do the rules regarding procedural fairness apply in the US for permit issuance? If so, the municipality may have some exposure to liability.
> 
> I'm also curious about permit/approval requirements from state and federal departments for something constructed in close proximity to borders.




Sometimes fed/ state get involved in constriction built in a city,,

Such as building against a state highway, FAA governed airport, etc.


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## tmurray (May 30, 2019)

cda said:


> Sometimes fed/ state get involved in constriction built in a city,,
> 
> Such as building against a state highway, FAA governed airport, etc.



So it stands to reason they probably should have been involved in this. Not that the permitting through other levels of government is always the responsibility of the city....


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## Mark K (May 30, 2019)

If it is a federal project then the federal government does not need a permit.

The Federal government may be responsible for certain permits or approvals if the project impacts a matter of federal jurisdiction such as endangered species or navigable waters.  The federal government has no authority over building permits.

If it is a private project, even on federal lands, then the normal state and local permitting requirements apply.

If it is a private project on federal land the federal government likely has some control over zoning or other land use issues.

The proximity to the border has no impact on the permitting requirements with the exception that all aspects of the project take place on the US   side of the border.


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## conarb (May 30, 2019)

> But Perea said regardless if two city employees gave approval for construction, the business is still in violation of city law because they had not submitted proper construction plans to the city.



I have to wonder what the approval consisted of, oral, in writing, conditions?


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## mtlogcabin (May 30, 2019)

In my city because it is over 6 ft tall it would take a Conditional Use Permit (CUP) from zoning prior to us being allowed to issue a building permit. This is about a 90 day process with 2 public hearing.


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## Pcinspector1 (May 30, 2019)

conarb said:


> I have to wonder what the approval consisted of, oral, in writing, conditions?



Maybe they got one of these


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## conarb (May 30, 2019)

mtlogcabin said:


> In my city because it is over 6 ft tall it would take a Conditional Use Permit (CUP) from zoning prior to us being allowed to issue a building permit. This is about a 90 day process with 2 public hearing.



But what if you and another city employee told them to go ahead without a permit? Can't the public rely upon what you said?  I don't know never having seen a city map, but it seems strange that the city borders would run way out into desolate country to the national border, how long ago were they extended way out there?  We had a case here where the City of Pacifica gave a guy the go ahead for an apartment project so he bought the land, later the city diverted water creating a marsh land and the Feds don't alow building in marshes, he sued and got a huge judgment against the city, so large that the city couldn't pay it and debated bankruptcy vs disincorporation, eventually it was settled when the city bought other land and gave it to him complete with permits and approvals.


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## mtlogcabin (May 30, 2019)

Maybe the location of the wall conflicts with the cities desire to construct a border crossing facility

http://www.sunlandpark-nm.gov/EXECUTIVE SUMMARY.pdf


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## my250r11 (May 30, 2019)

In NM if it is a fence or structure it would require a permit. The property that it is on is going to be the factor as to who gets to be the AHJ.

*NMAC 14.5.2.8                 PERMITS REQUIRED:*

*                A.            Permits required.*  Subject to CILA Sections 60-13-3 and Section 60-13-45 NMSA 1978, and the provisions of the division rules, no building or structure shall be erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted or demolished, no electrical wiring, plumbing or mechanical work and LP gas work as defined and described in the applicable New Mexico construction codes for those trades, may be installed, repaired or maintained in or on such building or structure, unless the applicable permit has first been obtained from the division, unless otherwise provided by statutes or rule. All re-roofs and applications of roof coatings require a building permit and inspections.

*14.5.2.9                 EXCEPTIONS TO REQUIREMENT FOR PERMITS:*  Permits shall not be required for the following:

*                A.            Commercial.*

*(1)*           One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area does not exceed 120 square feet (11.15.m2).

*(2)*           Oil derricks.

*(3)*           Retaining walls that retain less than 36 inches (915 mm) of unbalanced fill, and have a total height equal to or less than six feet from top of wall to bottom of footing. Retaining walls supporting a surcharge load or impounding class I, II, or III-A liquids are not exempt from permit.

*(5)*           Water tanks supported directly upon grade if the capacity does not exceed 5,000 gallons (18,927L) and the ratio of height to diameter or width does not exceed two to one.

*(6)*           Sidewalks and driveways not more than 30 inches (762 mm) above grade and not over any basement or story below and which are not part of an accessible route.

*(7)*           Temporary motion picture, television and theater stage sets and scenery.

*(8)*           Prefabricated swimming pools accessory to a group R-3 occupancy, as applicable in the NMRBC, and are installed entirely above ground.

*(9)*           Shade cloth structures constructed for nursery or agricultural purposes and not including services systems.

*(10)*         Swings and other playground equipment accessory to one-and two-family dwellings.

*(11)*         Window awnings supported by an exterior wall of group R-3, as applicable in the NMRBC, and group U occupancies.

*(12)*         Moveable cases, counters and partitions not over five feet nine inches (1,753mm) in height.

*                B.            Residential:*  Refer to Section R105.2 of the IRC except as provided below:

*                                (1)* *R105.2 (1) -* One-story detached accessory structures provided that the floor area does not exceed 120 square feet (18.58 m2).

*                                (2)           R105.2 (2) -* Delete this section of the IRC.

*                                (3)           R105.2 (3) -* Retaining walls that retain less than 36 inches (915mm) of unbalanced fill, and have a total height equal to or less than six feet from top of wall to bottom of footing.  Retaining walls supporting a surcharge load or impounding class I, II, or III-A liquids are not exempt from permit.

*                                 (4)          R105.2 (4) -* See this section of the IRC.

*                                (5)           R105.2 (5) - *See this section of the IRC.

*                                (6)           R105.2 (6) - *Delete this section of the IRC.

*                                (7)           R105.2 (7) - *See this section of the IRC.

*                                (8)           R105.2 (8) -* See this section of the IRC.

*                                (9)           R105.2 (9) - *See this section of the IRC.

*                                (10)         R105.2 (10) -* See this section of the IRC.

*                C.            Mechanical work.*  Refer to the exempt work section of the currently adopted UMC.

*                D.            Plumbing work.*  Refer to the exempt work section of the currently adopted UPC.

*                E.            Electrical work.*  No exceptions other than those set forth in CILA Section 60-13-45.

[14.5.2.9 NMAC - Rp, 14.5.2.9 NMAC, 11/15/2016; A, 5/15/2018]


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## mtlogcabin (May 30, 2019)

Conarb
it is in the code

[A] 105.4 Validity of permit.
The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction.* Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid**.* The issuance of a permit based on construction documents and other data shall not prevent the building official from requiring the correction of errors in the construction documents and other data. The building official is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction.


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## conarb (May 30, 2019)

I see they have resumed construction, *here is a press conference*, I watched the whole thing and the best I could get out of it was that they went to the city and got a verbal approval, then started work to get in before the ACLU got an injunction, when the city hit them with the stop work order they came in and finished up the process. I much prefer something in writing so others may get a different take than I did.


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## tmurray (May 31, 2019)

I would agree, in writing is better, but even verbal approvals are subject to procedural fairness


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## conarb (May 31, 2019)

tmurray said:


> I would agree, in writing is better, but even verbal approvals are subject to procedural fairness


 T Murray:

Agreed, but what I was really referring to was the fact that I got none of my analysis from writing, I watched the hour long video and tried to filter out the legal reasoning from the patriotic fluff. If any others bother to watch it I'd be interesting to see if their take is the same as mine.


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## e hilton (Jun 17, 2019)

Sounds risky to me.  If i was in charge ofbuilding the wall, at a minimum i would have a google earth screen shot, with the wall location drawn in, and got the 2 city employees to sign it.  That would have been very crude, but at least in writing, with a paper trail.


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## ADAguy (Jun 26, 2019)

If they deed the property to the Feds it might end the issue?


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## cda (Jun 26, 2019)

ADAguy said:


> If they deed the property to the Feds it might end the issue?



Nope just More worms out of the can


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