1998 -NMCA- 123, Huning Castle Neighborhood Ass'n v. City of Albuquerque, 18439

• Decision Date: 24 July 1998
• Docket Number: No. 18439,18439
• Court: Court of Appeals of New Mexico
• Parties: , 1998 -NMCA- 123 HUNING CASTLE NEIGHBORHOOD ASSOCIATION, a New Mexico Non-profit Corporation, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, a New Mexico Municipal Corporation, and Cauwels Construction & Development, Inc., a New Mexico Corporation, Respondents-Appellees.

Page 192

964 P.2d 192

125 N.M. 631, 1998 -NMCA- 123

HUNING CASTLE NEIGHBORHOOD ASSOCIATION, a New Mexico

Non-profit Corporation, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, a New Mexico Municipal Corporation, and Cauwels Construction & Development, Inc., a New

Mexico Corporation, Respondents-Appellees.

No. 18439.

Court of Appeals of New Mexico.

July 24, 1998.

Certiorari Denied Aug. 27, 1998.

Hessel E. Yntema, III, Oman, Gentry & Yntema, P.A., Albuquerque, for Appellant.

Robert M. White, City Attorney, David Suffling, Assistant City Attorney, Albuquerque, Antoinette Sedillo Lopez, Albuquerque, for Appellee, City of Albuquerque.

Arthur O. Beach, Thomas C. Bird, Keleher & McLeod, P.A., Albuquerque, for Appellee, Cauwels Construction & Development, Inc.

OPINION

DONNELLY, Judge.

¶1 Huning Castle Neighborhood Association (HCNA) appeals from a judgment of the district court affirming decisions by the Albuquerque City Council to rezone a narrow strip of property and approving a site development plan for a proposed apartment complex which would extend in part upon the rezoned parcel. On appeal, HCNA raises two issues: (1) whether sufficient evidence supports the City Council's determination that a mistake had been made in omitting the parcel from a prior zoning decision, thereby justifying a change in the zone designation for the parcel; and (2) whether the sector development plan applicable to the parcel and the surrounding property permits the apartment unit density figure approved by the City Council for the complex. We affirm the judgment of the district court on both issues.

FACTS AND PROCEDURAL POSTURE

¶2 On March 29, 1996, Cauwels Construction and Development, Inc. (Cauwels) applied to the City of Albuquerque (City) for an amendment to the municipal zoning map, a corresponding amendment to the applicable sector development plan, and approval of a site development plan. The site development plan proposed construction of a three-story apartment complex on a 2.644-acre site located near the Old Town area of Albuquerque, New Mexico. The site consists of four contiguous properties described as Lots 1, 8, 9, and a portion of Lot 10, Block 1, Huning Castle Addition located on Central Avenue between Laguna Boulevard and Fifteenth Street. The 20' X 140' (the Strip) portion of Lot 10 abuts the southern property lines of Lots 8 and 9.

¶3 The Strip of Lot 10 has been historically owned in common with Lots 1, 8, and 9, and for many years those other lots have been zoned for commercial use. The remainder of Lot 10 has a different owner and is under residential use. Notwithstanding common ownership of the Strip with the adjacent lots for commercial use, the entire Lot 10, including the Strip, has historically been zoned residential. The City contends this was due to a mapping error and that otherwise the Strip would have been zoned commercially like the other lots commonly owned as a commercial unit.

¶4 At the June 20, 1996, hearing before the City's Environmental Protection Commission (EPC), Cauwels presented evidence that the EPC has followed a policy of zoning property to the property lines, referring to the lines separating property owners, and Cauwels argued that the failure of the City to include the Strip portion of Lot 10 in the 1981 rezoning was a mistake. Cauwels also pointed out that setback requirements under the R-1 zone designation prevented any residential construction on the Strip and therefore if its request was not granted, the property would be rendered effectively unusable. In contrast to the position of Cauwels, HCNA argued that the Strip was intentionally left as a buffer between residential use in the remainder of Lot 10 along with other houses in the neighborhood, and the planned commercial development on Lots 1, 8, and 9 to the north. HCNA argues that placement of the Strip within the residential zone was not a mistake and that substantial evidence does not support a finding that it was a mistake.

¶5 Both the EPC and the Land Use Planning and Zoning Commission approved Cauwels' site development plan for construction of the apartment complex. Approval was also given for rezoning of the Strip portion of the property belonging to the owners of the land sought to be developed.

¶6 HCNA filed two separate appeals to the City Council, one regarding the EPC's approvals of the Sector Development Plan amendment and zone map amendment and the other regarding the site development plan approval. On August 14, 1996, a hearing was held before the City Council's Land Use Planning and Zoning Commission on both appeals. Following the hearing, the Planning and Zoning Commission recommended that the City Council deny HCNA's appeals.

¶7 On August 19, 1996, the City Council voted to accept the Planning and Zoning Commission's recommendation to rule on both appeals without further hearing, and HCNA subsequently appealed the City Council's rulings to the district court. Following a hearing in the district court, the court denied the appeal; HCNA has filed a timely appeal therefrom.

DISCUSSION

Standard of Review

¶8 Zoning actions are quasi-judicial in nature and a reviewing court applies an administrative standard of review. See West Old Town Neighborhood Ass'n v. City of Albuquerque, 1996-NMCA-107, p 11, 122 N.M. 495, 927 P.2d 529; see also Miles v. Board of County Comm'rs, 1998-NMCA-118, p 9, --- N.M. ----, 964 P.2d 169 (discussing distinction in zoning context between a legislative enactment and a fact-based adjudicative act). Under this standard, we review the whole record, "looking at all the evidence, favorable and unfavorable, bearing on a decision" by the zoning body in order to ascertain if there is substantial evidence to support the result. West Old Town Neighborhood Ass'n, 1996-NMCA-107, p 11, 122 N.M. 495, 927 P.2d 529. In this respect, "[a]n appellate court conducts the same review as the district court," and the decision of the zoning body is disturbed only if the court is not satisfied that the action was authorized by law or if the zoning authority's decision is not supported by substantial evidence. Siesta Hills Neighborhood Ass'n v. City of Albuquerque, 1998-NMCA-028, p 6, 124 N.M. 670, 954 P.2d 102 (while conflicting evidence is not disregarded, the evidence is reviewed in a light favorable to the administrative body, and the reviewing court declines to substitute its judgment for that of the administrative body).

Claim of Mistake

¶9 HCNA contends that, in order for Cauwels to prevail on its request for rezoning, Cauwels had to prove that there was a mistake in the "initial" or "original" zoning of the Strip portion of Lot 10 and that proof of any subsequent failure by a zoning body to include a parcel of property in a rezoning action cannot legally constitute a zoning mistake. Following up on this argument, HCNA asserts that, in New Mexico, "there is the presumption that the initial determination of the type of zoning for the property involved is the correct one[,]" Miller v. City of Albuquerque, 89 N.M. 503, 506, 554 P.2d 665, 668 (1976), and that "[a]bsent a showing that the original zoning was mistakenly listed as a different zone than that intended due to clerical error, oversight, or misapprehension of the facts, the original zoning is deemed to be correct." Davis v. City of Albuquerque, 98 N.M. 319, 321, 648 P.2d 777, 779 (1982). Although we agree with HCNA's analysis of the law, we disagree that the facts or evidence compel the result sought by it herein.

¶10 In 1932 all of Lot 10, including the Strip in question here, was conveyed by the developer of the Huning Castle Addition to June Black. In 1938 June Black conveyed the same strip back to the developer, whose principals were A.R. Hebenstreit and William Keleher. In its report on the proposed apartment complex, the EPC noted that "[e]vidence has been provided that indicates that this strip of property has been owned in combination with [L]ots 8 and 9 (to the north) since 1938."

¶11 The record is silent as to when zoning was first established in the Huning Castle Addition area. Apparently the zoning occurred some time subsequent to 1938. The record does disclose that Lots 8 and 9 were zoned C-2 with the establishment of zoning and that the Strip portion of Lot 10 was not zoned C-2 with Lots 8 and 9, but R-1 with the rest of Lot 10. In 1981 the City Council, responding by resolution to concerns that "the Huning Castle and Raynolds Addition area ... was originally zoned inappropriately," adopted the Huning Castle & Reynolds Addition Neighborhood Sector Development Plan (Sector Development Plan). Pursuant to the Sector Development Plan, Lots 1, 8, and 9 were rezoned SU-2/CLD to allow "COMMERCIAL and/or LOW DENSITY APARTMENTS" uses. The resulting zone map, however, indicates that the Strip portion of Lot 10 was not rezoned with adjoining Lots 8 and 9, but instead remained zoned as R-1 with Lot 10.

¶12 Does the record here embody sufficient evidence to support the decision of the City Council and its determination that the failure to include the Strip of Lot 10 in the original rezoning decision was an oversight or a mistake? We conclude that it does. In our view, Davis and Miller, relied upon by HCNA, simply acknowledge that a zoning body may err when it assigns a particular zone designation to a particular piece of property or area through clerical error oversight, or misapprehension of the facts, though the presumption is against such a mistake. Clerical error, oversight, or misapprehension of the facts may, however, cause a zoning body to err and fail to assign a particular zone designation to a particular piece of property or area, as Cauwels has alleged was the case in 1981 when the City Council failed to rezone the Strip portion of Lot 10 SU-2/CLD when it rezoned Lots 8 and 9. Few would deny that an administrative body, just as any other entity, may at times act or fail to act upon a mistaken premise or oversight. ...