ALTO, N.M. — The group of Alto neighbors resisting a proposed concrete plant have filed a lawsuit to block the industrial operation from breaking ground in their scenic mountain community.

“We are now in full-steam ahead for battle,” said Ellen Hightower, a resident of Alto who lives a quarter of a mile from the proposed concrete batch plant. “I think we are moving forward really well on this.”

The lawsuit is asking that the court declare the proposed concrete batch plant — owned by Roper Construction, Inc. of Carrizozo — to be a “private nuisance” that damages the property values of area homeowners. The suit also asks the court for “an award of damages … in an amount sufficient to compensate each Plaintiff for diminution in value of their property” if the concrete plant opens, the lawsuit states.

The lawsuit, which names about 50 Alto homeowners as plaintiffs, lists Roper Construction Inc. as the defendant and was filed Nov. 10 at the 12th District Court in Lincoln County.

“[T]he proposed industrial plant would fundamentally alter the scenic, residential and rural nature of the locality and deprive the Plaintiffs of the quiet use and enjoyment of their respective, unique real properties,” the lawsuit against the construction company states.

Ryan Roper, the owner of Roper Construction Inc., declined to comment on the case.

In previous statements to the Ruidoso News, Roper said he believes in the American free market, and was trying to apply the “highest and best use” of the unincorporated land he owns. Roper said he was mindful about following all Lincoln County laws and regulations.

Alto residents organize opposition to proposed concrete batch plant. Lincoln County Commission passes resolution backing them.

"We did our due diligence before this all started, so we could make sure we were doing everything within the law and restrictions. We believe we are doing everything by the law and by the code and going through the correct procedures to do that," Roper said in late October.

The standoff between Roper and the neighbors — who organized themselves into the Alto Coalition for Environmental Preservation (AltoCEP) to keep the proposed concrete batch plant out of Alto — began in early June with a small notice posted in front of a property owned by Roper on New Mexico Highway 220.

The posting was a public notice regarding the proposed concrete batch plant opening on that property, which sits near the intersection of N.M. Highway 48 and N.M. Highway 220 in Lincoln County.

From that point, a grassroots effort among neighbors gained steam, and communication between AltoCEP, the New Mexico Environment Department, state and county officials began.

“Initially several different neighborhood groups and individuals were doing the research and finding out stuff and starting petitions, trying to figure out a way to get attention to stop this,” said Craig Cathey, who lives on Legacy Lane near the proposed plant. “We wanted to see about getting a public hearing before it became a done deal."

Kaitlyn O’Brien, spokeswoman for the New Mexico Environmental Department, said the NMED requested a “New Source Review Construction Permit” for Roper’s concrete batch plant, but that its acceptance or rejection is delayed.

“Normally this type of permit must be issued within 120 days of receiving a complete application, but because this permit is going to a public hearing, permit issuance or denial is delayed until after the hearing,” she said in an email.

The public hearing is still several months away, according to the NMED.

Until then, the AltoCEP has turned to the Lincoln County Board of County Commissioners for assistance in resolving the issue.

In October, Commissioners considered a resolution stating that the concrete plant “if constructed along N.M. Highway 220 could be considered a nuisance to surrounding property owners.” The October resolution passed on a 3 to 2 vote in favor. Commissioner Todd Proctor and Commissioner Elaine Allen voted against the resolution.

In November Commissioners discussed whether regulations should be created to intercede in situations like the concrete plant in Alto’s residential area. The discussion led to an impasse that will be visited again in the next commissioners meeting, according to Lincoln County Commissioner Tom Stewart.

At the upcoming Dec. 21 meeting, Commissioners will discuss “perhaps going to the electorate to see if the citizens want us to zone the county,” Stewart said, and added that he agreed that Roper’s concrete batch plant “may be a public nuisance” in Alto.

“But it's not built yet,” he said. “That’s a very important distinction. We can't judge that it's going to be a public nuisance until it's built and we see what kind of steps you take to prevent it from being a public nuisance.”

Proctor said the issue, for him, is primarily about protecting the private property rights of Lincoln County residents.

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“Why is the County Commission going to stick its neck out and infringe on people's rights for their private property? I am representing a whole different area of people that do not want their private property rights invaded,” he said.

During a recent meeting of the AltoCEP, neighbor Dave Edler told the group that he’s worked 20 years at a half dozen concrete plants.

“So I've done just about everything at these plants,” he said. “I’ve driven every truck, seen it all. And all concrete plants run the same.”

Edler shared with the group the typical day of a concrete batch plant, from the 3 a.m. arrival of “the batch man … the guy who pushes all the buttons, runs all the trucks, turns on all the lights” to the hundreds of gallons of water — with retardant and antifreeze additives — dumped into ground pits after cleaning trucks, bins and equipment.

“We have deer and elk come right to our back porch. My wife has half of them named,” he said. “At the end of the day, if that property does not have a huge elk fence around it, there's going to be wildlife drinking that.”

Edler described conveyers, blast hoses, the revving diesel-powered trucks as fixtures of those type of facilities.

“An 80,000-pound truck, the tractor trailer, comes in with a dry cement in the trailer, and there's a gas motor in the back of the cement truck,” he said. “And that has to start up -- it's an air pressure system -- that is hooked up with hoses, and it blows up to the top of the tank,” he said, describing the billows of dry cement as being “like talcum powder.”

“If it gets on your hands you can't just blow it off you actually have to wipe it off. It sticks on whatever it gets to.” Swept up in the wind, the airborne concrete dust, he said means that “your days of sleeping with the windows open, sitting and enjoying coffee on your porch, they will not be the same.”

Alice Stokes said she’s currently living exactly that scenario.

“Oh I know all about that, believe me,” said Stokes, whose 4 ½ acre property abuts Roper’s current concrete plant in Carrizozo. She was standing on her porch last week, looking out to Roper’s multi-story cement plant next to her land. “The whole place is dirty. They have that dirt there and it blows right on here, you can't even come outside. It's terrible. Sometimes it's no visibility,” she said.

“Even my dog coughs all the time,” Stokes said. “It's all that dust floating everywhere. Every time I empty my vacuum cleaner it has that real fine powder, that gray powder,” she said. “They also ruined my view of these mountains,” she said, pointing to the direction of the high Sacramento ridges obscured in the distance.

On the opposite side of the Carrizozo concrete plant, was a mobile home owned by Bob Carrisco, a Carrizozo resident since 2008. He said he has not noticed any dust in his home from the concrete batch plant, but said there was a noise issue.

“There is a hum that comes from there. I’m not sure what decibel level. But I have to get used to it because I know it’s not going away,” he said. “It’s a slight nuisance, but it doesn’t affect my quality of life. Those are the pros and cons.”

On the third side of the plant, closest to the highway, 43-year-old Philip Humphries was making cookies in his mobile home, and said he had no complaints about the concrete plant.

“None at all,” he said. “I hear them in the morning, they start real early but that's their trucks moving around back over there. Sometimes late in the afternoon when they park their trucks, but that's it.”

No dust and no excessive noise, he said.

Steve Fortelny, another neighbor of Roper’s concrete plant in Carrizozo, said he lost “an unbelievable view of the mountain” when the concrete plant was constructed, and “probably lowered my property value by around $20,000,” he said.

“But it is a free enterprise world, and he's a businessman, and he did it legally. So there it is. Some win, some lose,” said Fortelny, adding that Roper was “an entrepreneur and a damn good businessman."

Roper, said Fortelny, “grew up in a society where a person can succeed if he has motivation and drive.”

“So I don't fault him for that. I'm on the losing end of this stick, but I don't fault him for it. He went through the gate. Not many people do that,” said Fortelny, who originally tried to block Roper from building his concrete plant near his property.

“I hate the sight of that thing,” he said about the towering concrete plant. “But I’m trying to get used to it.”

Getting accustomed to life near a concrete batch plant is not something that the AltoCEP group is ready to accept.

Cathey said he has no intention of easing his opposition to the concrete plant. His home and the homes of his friends, their health — physical and emotional — are threatened by Roper and the incursion of his industrial plant into their neighborhood, he said.

“It's worth fighting, ‘til the death. And if he has more money than I do, then we'll figure that out in court. If we lose this attempt that we are making now to prevent him — to bring him to his senses as I see it — that doesn't stop my opposition,” said Cathey, who says his only option is to move if the concrete plant is constructed.

Until then, he said, “I'll drag his butt into court every time he turns around. As a reasonable businessman, he needs to understand that's what he's facing.”

Reyes Mata III is a freelance journalist who writes about the issues of the U.S.-Mexico border. Born and raised in El Paso, he is a graduate of New Mexico State University. His email address is rmataonline@gmail.com. Story ideas are always welcomed.

This article originally appeared on Ruidoso News: Alto residents file lawsuit against proposed concrete plant

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