1998 -NMCA- 118, Miles v. Board of County Com'rs of County of Sandoval

• Decision Date: 07 July 1998
• Docket Number: No. 18186,18186
• Citation: 964 P.2d 169,1998 NMCA 118,125 N.M. 608
• Parties: , 1998 -NMCA- 118 Gary MILES and Patience O'Dowd, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SANDOVAL, New Mexico, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 169

964 P.2d 169

125 N.M. 608, 1998 -NMCA- 118

Gary MILES and Patience O'Dowd, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SANDOVAL, New

Mexico, Defendant-Appellant.

No. 18186.

Court of Appeals of New Mexico.

July 7, 1998.

Certiorari Denied Aug. 13, 1998.

Hessel E. Yntema, III, Oman, Gentry & Yntema, P.A., Albuquerque, for Plaintiffs-Appellees.

Theodore C. Baca, Sandoval County Attorney, Bernalillo, for Defendant-Appellant.

OPINION

BOSSON, Judge.

¶1 We address the level of notice required by both state statute and principles of constitutional due process when a county commission adopts a comprehensive zoning ordinance. Because we determine that the adoption of a comprehensive zoning ordinance serves a legislative, as opposed to an adjudicative function, we hold that the generalized notice afforded in this instance did not violate any due process rights of the protesting property owner. We also conclude that the notice satisfied minimal statutory requirements that apply to zoning enactments of this nature. We reverse the district court's ruling in favor of the property owner and against the County.

BACKGROUND

¶2 With the exception of certain municipal areas, Sandoval County had no comprehensive zoning until January 20, 1988, when the first comprehensive zoning ordinance went into effect, limited to the community of Algodones. In the same month, Plaintiffs Miles and O'Dowd [hereinafter Miles], purchased property in an unincorporated and unzoned area of the county near Placitas. On February 7, 1990, the Sandoval County Commission zoned the remainder of Sandoval County, including Miles' property, by amending the existing comprehensive zoning ordinance to designate the rest of the county, outside the municipal areas, as a Development Review (DR) district. That designation permitted only residential and agricultural uses; property owners wishing to make other use of their property had to obtain a conditional use permit from the county.

¶3 Before enacting this expansive amendment to the comprehensive zoning ordinance, the County published the following notice in the Albuquerque Journal:

LEGAL NOTICE

The Sandoval County Commission will be considering for adoption the following:

DEVELOPMENT REVIEW DISTRICT AMENDMENT TO ZONING ORDINANCE AMENDING THE COMPREHENSIVE ZONING ORDINANCE OF SANDOVAL COUNTY IN ORDER TO DESIGNATE A NEW AND BASIC ZONE DISTRICT TO BE KNOWN AS THE DEVELOPMENT REVIEW DISTRICT

Part I Replace Section 3

Part II Jurisdiction

Part III Replace Section 9

Part IIIA Intent

Part IIIB District Standards

The public hearing on the contents of the Amendment will be held at a regularly scheduled meeting of the Sandoval County Commission to be held on January 3, 1990. Following the hearing the Commission may choose to table to deny or to adopt the proposed Amendment. Should the Commission table action on the matter, further publication may occur at their request but is not necessitated by New Mexico State Law.

The meeting of January 3, 1990 will be held in the Commission Room first floor, Sandoval County Courthouse, 1123 Camino Del Pueblo, Bernalillo, New Mexico, and will begin at 2:00 pm.

Copies of the proposed Amendment are available from the office of the County Manager, Sandoval County, 867-2341.

Joanne McGlothen

County Manager

Sandoval County

Journal, November 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 1989.

¶4 Over four years later in 1994, neighbors complained to the County that Miles was operating an auto salvage yard on his property, a use which was inconsistent with DR zoning. On April 5, 1994, the county planner sent a letter to Miles, notifying him of these complaints and informing him that only residential and agricultural uses were permitted. Discussions took place between the county planner and Miles, and Miles was advised that he would be required to apply for a zone change and obtain a conditional use permit for his salvage operation. In April 1995, Miles requested that the County zoning officer certify that his place of business was properly zoned for a motor vehicle dealership and an auto dismantling operation. His request was denied.

¶5 Miles then sued the County, claiming for the first time that the notice that had been published five years earlier in the Albuquerque Journal, announcing the proposed comprehensive zoning ordinance, was constitutionally and statutorily defective. The district court granted summary judgment for Miles, finding that the published notice was insufficient to put a reasonable person on notice of the fundamental and substantial changes in zoning proposed for the Miles property. The court then concluded that the County was liable under 42 U.S.C. § 1983 for violation of Miles' right to procedural due process of law, and Miles was awarded nominal damages and attorney's fees. The County raises two issues on appeal: (1) whether the published notice substantially complied with the applicable statutory notice requirements, and (2) regardless of the particular state statute, whether the County had violated any protected due process rights under the constitution that would give rise to liability under 42 U.S.C. § 1983. We address the second question first because it resolves the lingering constitutional issues in favor of the County.

DISCUSSION

Attorney's Fees Under the Civil Rights Act

¶6 The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, permits a trial court to award attorney's fees to a party who prevails in a civil rights action. See Bogan v. Sandoval County Planning & Zoning Comm'n, 119 N.M. 334, 345, 890 P.2d 395, 406 (Ct.App.1994). When a person, acting under color of state law, causes an individual to be deprived of a federally protected constitutional right, that individual may bring a claim for damages under 42 U.S.C. § 1983 and for attorney's fees under 42 U.S.C. § 1988. See Bogan, 119 N.M. at 345, 890 P.2d at 406. "A county government acting 'under color of some official policy' can be subject to liability under Section 1983." Id. (quoting Monell v. Department of Social Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In order to be awarded attorney's fees under 42 U.S.C. § 1988, however, a party must prevail on some federal constitutional claim, and not just a claim grounded on state statute. See Kelly v. City of Leesville, 897 F.2d 172, 176-77 (5th Cir.1990); Garcia v. Las Vegas Med. Ctr., 112 N.M. 441, 443, 816 P.2d 510, 512 (Ct.App.1991). Therefore, we turn to Miles' constitutional claim that the form of notice afforded by the County when adopting its zoning ordinance deprived him of procedural due process of law under the Fourteenth Amendment.

Legislative Enactment of Zoning Ordinances Does Not Create a Constitutional Right to Any Particular Notice Under Procedural Due Process

¶7 Miles claims he was deprived of Fourteenth Amendment procedural due process when the County failed to provide adequate public notice of the proposed changes to the comprehensive zoning ordinance that was adopted in 1990. We do not agree that Miles had any claim under the federal constitution to any particular kind of notice with respect to County acting in a legislative or rule-making capacity.

¶8 As our Supreme Court has recently observed, "[p]rocedural due process requires the government to give notice and an opportunity to be heard before depriving an individual of liberty or property." Madrid v. St. Joseph Hosp., 1996-NMSC-064, p 25, 122 N.M. 524, 928 P.2d 250 (emphasis added). However, it is equally true that "[p]rocedural due process does not apply when government makes a policy decision that has an adverse impact on an entire classification of individuals ..., even if the decision has the same adverse effect on the interests of the members of the group as would an individualized deprivation." 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 9.2, at 3 (3d ed.1994) [hereinafter Davis & Pierce]. As these commentators point out, "[t]he distinction between individualized [fact-based] deprivations, that are protected by procedural due process, and policy-based deprivations of the interests of a class, that are not protected by procedural due process ... underlies both the distinction between legislation and judicial trial and the distinction between rulemaking and adjudication." Id.

¶9 This distinction between a legislative enactment and a fact-based adjudicative act, and the corresponding level of process required under the constitution, was clarified by Justice Holmes at the onset of this century in the landmark case of Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915). Justice Holmes wrote:

Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard.

Id. at 445, 36 S.Ct. 141. Thus, when government action is concentrated on a relatively small number of persons, based on individual grounds, then the dictates of constitutional due process require individualized notice and an opportunity to be heard. See id. at 446, 36 S.Ct. 141. However, when the matter concerns general statutes or other enactments "in which all are equally concerned," id. at 445, 36 S.Ct. 141, notice and an opportunity to be heard may not be constitutionally required. Moreover, the distinction and the "pragmatic considerations" identified by Justice Holmes almost a century ago "are as weighty today as they were in 1915." Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 285, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984); see Davis & Pierce § 9.2, at 4-5. Ultimately, "the...