1998 -NMCA- 171, Embudo Canyon Neighborhood Ass'n v. City of Albuquerque

• Decision Date: 20 October 1998
• Docket Number: No. 18899,18899
• Citation: 1998 NMCA 171,968 P.2d 1190,126 N.M. 327
• Parties: , 1998 -NMCA- 171 EMBUDO CANYON NEIGHBORHOOD ASSOCIATION, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee, and Myers, Oliver & Price/Consensus Planning, Inc., agents for Hinkle Family Fun Center, Inc., Interested Parties.
• Court: Court of Appeals of New Mexico

Page 1190

968 P.2d 1190

126 N.M. 327, 1998 -NMCA- 171

EMBUDO CANYON NEIGHBORHOOD ASSOCIATION, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee and Myers, Oliver & Price/Consensus Planning, Inc., agents for Hinkle Family Fun Center, Inc., Interested Parties.

No. 18899.

Court of Appeals of New Mexico.

Oct. 20, 1998.

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

Robert M. White, City Attorney, Randy M. Autio, Ass't City Attorney, Albuquerque, for Appellee.

John A. Myers, Kevin J. McCready, Myers, Oliver & Price, P.C., Albuquerque, for Interested Parties.

OPINION

DONNELLY, J.

¶1 Embudo Canyon Neighborhood Association (ECNA) appeals from an order of the district court affirming a decision of the Albuquerque City Council (the City Council) approving an application of Myers, Oliver & Price/Consensus Planning, Inc., agents for Hinkle Family Fun Center, Inc. (Hinkle), for a zoning change to permit the operation of an outdoor amusement facility. ECNA raises seven issues on appeal, which we consolidate and discuss as follows: (1) whether evidence in the administrative record supports the action of the City Council, and (2) whether the City's action constituted illegal "spot zoning." We affirm.

FACTS

¶2 Hinkle filed an application for an amendment to the City of Albuquerque Zoning Code (the Zoning Code) on July 26, 1996, seeking to change the zoning for a 9.55-acre tract of land located at the northwest corner of Tramway Boulevard and Indian School Road. The application sought to change the zoning from C-2 (community commercial) to SU-1 (special use) to permit the operation of a permanent outdoor amusement facility, including the installation and use of a batting cage, go-carts, and bumper boats.

¶3 In requesting a zone change to SU-1, Hinkle asserted that the modification was warranted because the outdoor amusement uses contemplated are not permitted under C-2 zoning. Hinkle further argued that: (1) a 1991 Zoning Code amendment changed the zoning classification for the type of outdoor activities in question from C-2 conditional use to "special use"; (2) the City Council had reversed a declaratory ruling by its zoning administrator and ruled that the uses sought to be implemented were not permitted in a C-2 zone; and (3) there had been a substantial increase in traffic and population in the area near that sought to be rezoned.

¶4 In urging the zoning amendment, Hinkle further asserted that: (1) it had previously developed portions of the area into a family amusement center; (2) it proposed to utilize currently available technological techniques to minimize any adverse effect the amusement center might have upon surrounding areas; and (3) changed conditions warranted approval of the requested zoning change.

¶5 Following a hearing before the Environmental Planning Commission (the EPC), the EPC approved the zone change application. Thereafter, ECNA appealed the decision to the City Council. The City Council affirmed, and ECNA applied for a writ of certiorari to the district court pursuant to NMSA 1978, § 3-21-9 (1965). On September 3, 1997, the district court entered an order finding that there was substantial evidence to support the decision of the City Council, the decision of the City Council was in conformity with law, and the zone change did not constitute improper spot zoning. ECNA filed a timely appeal from the order.

DISCUSSION

¶6 ECNA argues that the district court erred in upholding the decision of the City Council to grant the zone change to SU-1, and that the action of the City Council was contrary to Resolution 270-1980, Albuquerque, N.M.Code of Ordinances, § 1-1-2 (1994), and resulted in illegal "spot zoning" of the property in question.

¶7 When reviewing challenges to the validity of a municipality's zoning actions, we apply an administrative standard of review and examine all of the evidence presented at the hearing below, both favorable and unfavorable, bearing on the city's decision to determine if there is substantial evidence to support the result on the record as a whole. See Huning Castle Neighborhood Ass'n v. City of Albuquerque, 1998-NMCA-123, p 8, 125 N.M. 631, 964 P.2d 192 ; Siesta Hills Neighborhood Ass'n v. City of Albuquerque, 1998-NMCA-028, p 6, 124 N.M. 670, 954 P.2d 102; West Old Town Neighborhood Ass'n v. City of Albuquerque, 1996-NMCA-107, p 11, 122 N.M. 495, 927 P.2d 529. Applying this administrative standard of review, we utilize the same standard 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." Huning Castle Neighborhood Ass'n, 1998-NMCA-123, p 8, 125 N.M. 631, 964 P.2d 192.

¶8 Decisions of a municipality are presumably valid and the burden of proving otherwise rests upon a party seeking to void such decision. See State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque, 119 N.M. 150, 157, 889 P.2d 185, 192 (1994). The party seeking to overturn such decision must establish that there is no substantial evidence to support the municipality's decision. See id. at 157-58, 889 P.2d at 192-93. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 158, 889 P.2d at 193 (citations and quotation marks omitted).

¶9 Prior to the application for a zone change from C-2 to SU-1, the land in question was zoned for general, community-wide, commercial activities which could include, for example, a McDonald's, Wal-Mart, Home Base, or a full-service liquor establishment. See Albuquerque, N.M.Code of Ordinances, § 14-16-2-17 (1994). The City Council previously approved, and Hinkle already constructed on the site, the 1800-seat High Ridge Theater complex.

¶10 A permanent outdoor amusement facility is not a permissive use under C-2. In order to operate such an enterprise, the land must be zoned SU-1. The 1991 Zoning Code amendment provided, in pertinent part: "[N]o outdoor storage or activity specified as a principal special use in § 14-16-2-22(B) of the Zoning Code, the SU-1 zone, may be a conditional use considered under this division (B)" of the C-2 zone. Section 14-16-2-17(B)(13)(a). Thus after 1991, the use Hinkle applied for was excluded as a C-2 conditional use and specifically included as a SU-1 special use. The SU-1 zone ordinance states: "This zone provides suitable sites for uses which are special because of infrequent occurrence, effect on surrounding property, safety, hazard, or other reasons, and in which the appropriateness of the use to a specific location is partly or entirely dependent on the character of the site design." Albuquerque, N.M.Code of Ordinances, § 14-16-2-22 (1994). The permitted SU-1 special uses include a permanent amusement facility. See § 14-16-2-22(B)(4).

¶11 The parties agree that Resolution 270-1980, established by the City Council, articulates the policies and requirements for determining whether a zone change is proper. Resolution 270-1980 includes the following considerations upon which the City Council must base a rezoning decision:

(A) A proposed zone change must be found to be consistent with the health, safety, morals, and general welfare of the city.

(B) Stability of land use and zoning is desirable; therefore the applicant must provide a sound justification for the change. The burden is on the applicant to show why the change should be made, not on the city to show why the change should not be made.

(C) A proposed change shall not be in significant conflict with adopted elements of the Comprehensive Plan or other city master plans and amendments there, to, [sic] including privately developed area plans which have been adopted by the city.

(D) The applicant must demonstrate that the existing zoning is inappropriate because:

(1) There was an error when the existing zone map pattern was created; or

(2) Changed neighborhood or community conditions justify the change; or

(3) A different use category is more advantageous to the community, as articulated in the Comprehensive Plan or other city master plan, even though (D)(1) or (D)(2) above do not apply.

(E) A change of zone shall not be approved where some of the permissive uses in the zone would be harmful to adjacent property, the neighborhood, or the community.

Section 1-1-2; see also West Old Town Neighborhood Ass'n, 1996-NMCA-107, p 18, 122 N.M. 495, 927 P.2d 529.

¶12 ECNA argues that the evidence in the administrative record does not support the City Council's approval of Hinkle's zone change. We disagree. A party challenging the sufficiency of the evidence to support findings adopted by an administrative body must set forth the substance of all the evidence bearing on the issue in question, and must demonstrate why, on balance, the evidence does not support the finding or findings made. See Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 184, 848 P.2d 1108, 1111 (Ct.App.1993). ECNA fails to detail evidence in the record that supports the City Council's action.

¶13 The City Council made the following findings of fact in issuing its decision to rezone Hinkle's land:

1. There was sufficient evidence to support a finding that the requirements for a zone change under Resolution 270-1980 were met.

2. The proposed uses are consistent with Comprehensive Plan policies.

3. There was sufficient evidence to support the EPC's finding that adverse impact from the proposed uses can be mitigated to prevent a harmful effect on surrounding residences.

4. The revision of the Zoning Code that allowed permanent amusement facilities only in the SU-1 zone necessitated a zone change request for the proposed use and created a changed condition.

...

6. "More advantageous to the community" is a legal basis for granting a zone change under the facts at issue.

7. The EPC's...