1998 -NMSC- 50, High Ridge Hinkle Joint Venture v. City of Albuquerque

• Decision Date: 03 December 1998
• Docket Number: No. 24,297,24,297
• Citation: 970 P.2d 599,1998 NMSC 50,126 N.M. 413
• Parties: , 1998 -NMSC- 50 HIGH RIDGE HINKLE JOINT VENTURE and Gene Hinkle, Petitioners-Petitioners, v. The CITY OF ALBUQUERQUE, et al., Respondents-Respondents, and Embudo Canyon Neighborhood Assn., Interested Party-Respondent.
• Court: New Mexico Supreme Court

Page 599

970 P.2d 599

126 N.M. 413, 1998 -NMSC- 50

HIGH RIDGE HINKLE JOINT VENTURE and Gene Hinkle Petitioners-Petitioners, v. The CITY OF ALBUQUERQUE, et al., Respondents-Respondents and Embudo Canyon Neighborhood Assn., Interested Party-Respondent.

No. 24,297.

Supreme Court of New Mexico.

Dec. 3, 1998.

Bryan and Flynn-O'Brien, Timothy V. Flynn-O'Brien, Albuquerque, for Petitioners.

Robert M. White, City Attorney, Randy M. Autio, Assistant City Attorney, Albuquerque, Dietz Law Offices, Ethelinda Dietz, Albuquerque, for Respondents.

OPINION

McKINNON, Justice.

¶1 High Ridge Hinkle Joint Venture (Hinkle) appeals from a zoning decision of the appellee, City of Albuquerque (City) through its Council. The City's first decision on the interpretation of the ordinance in question was remanded to it after an appeal to the Court of Appeals. High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 888 P.2d 475 (Ct.App.1994) [hereinafter Hinkle I ]. The City's second interpretation was made in February 1995, and Hinkle again appealed to the Court of Appeals, which affirmed the ruling. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189. We granted certiorari on May 29, 1997, High Ridge Hinkle Joint Venture v. City of Albuquerque, 123 N.M. 229, 938 P.2d 204 (1997), and reverse the Court of Appeals.

¶2 Hinkle is the owner of a large tract of land zoned C-2 under the Albuquerque Zoning Code. See Albuquerque, N.M., Comprehensive City Zoning Code § 7-14-22 (1991) [hereinafter Zoning Code]. In 1991, he sought to improve a portion of the property by building a miniature golf course and arcade with go-carts and bumper boats. The Zoning Enforcement Officer (ZEO) ruled that the planned go-carts and bumper-boats were an appropriate conditional use of the property. The ruling was upheld by the Environmental Planning Commission, but the City reversed.

¶3 The ordinance in issue is Section 7-14-22.B.13 of the Zoning Code which in relevant part allows as a conditional use in a C-2 zone "[o]utside storage or activity, except as specifically made a permissive use." Hinkle's argument is that the quoted words mean in his words "outside storage or other outside activity," and therefore go-carts and bumper-boats are in fact conditional uses. The City, offering its own paraphrase, argues that the words mean "outside storage or activity related to outside storage," so that the activities in question are not conditional uses. The Court of Appeals reasoned that the City had never issued an interpretation that was inconsistent with the interpretation it now urges, and that deference should be accorded those who are politically accountable for enacting the ordinance. We granted certiorari on the issue: Did the Court of Appeals err in deferring to the City's interpretation of the Zoning Code? We hold that it did and therefore reverse with directions that the conditional uses sought by Hinkle be granted.

¶4 "In construing municipal ordinances or county zoning ordinances ... the same rules of construction are used as when construing statutes of the legislature[,]" Burroughs v. Board of County Comm'rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975), and "[c]ertainly, where the question is simply one of construction, the courts may pass upon it as an issue 'solely of law.' " Pan American Petroleum Corp. v. El Paso Natural Gas Co., 77 N.M. 481, 487, 424 P.2d 397, 401 (1966) (quoting Great N. Ry. v. Merchants' Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 66 L.Ed. 943 (1922)); see also Mayberry v. Town of Old Orchard Beach, 599 A.2d 1153, 1154 (Me.1991) (interpretation of zoning ordinance a question of law for the court); Conforti v. City of Manchester, 141 N.H. 78, 677 A.2d 147, 149 (N.H.1996) (same); Kaiser v. Western R/C Flyers, Inc., 239 Neb. 624, 477 N.W.2d 557, 560 (Neb.1991) (same). Here, three rules or tools of statutory construction are relevant.

¶5 The first rule is that the "plain language of a statute is the primary indicator of legislative intent." General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985). Courts are to "give the words used in the statute their ordinary meaning unless the legislature indicates a different intent ." State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). The court "will not read into a statute or ordinance language which is not there, particularly if it makes sense as written." Burroughs, 88 N.M. at 306, 540 P.2d at 236. The second rule is to "give persuasive weight to long-standing administrative constructions of statutes by the agency charged with administering them." TBCH, Inc. v. City of Albuquerque, 117 N.M. 569, 572, 874 P.2d 30, 33 (Ct.App.1994); see Molycorp, Inc. v. State Corp. Comm'n, 95 N.M 613, 614, 624 P.2d 1010, 1011 (1981). The third rule dictates that where several sections of a statute are involved, they must be read together so that all parts are given effect. This includes amendments. Methola v. County of Eddy, 95 N.M. 329, 333, 622 P.2d 234, 238 (1980).

¶6 Employing these guides to statutory construction, we analyze the ordinance in question, and the intent of those who enacted it. The plain meaning of the words "outside storage or activity" is that "outside" modifies both "storage" and "activity." Without a legislative indication to the contrary the word "storage" does not modify the word "activity" according to a plain reading of the phrase. In fact, use of the word "or" indicates the intent to distinguish "storage" from other subjects. "[Z]oning regulations should not be extended by construction beyond the fair import of their language and they cannot be construed to include by implication that which is not clearly within their express terms." 8 Eugene McQuillin, The Law of Municipal Corporations, § 25.71 (3d ed.1991). Further, there is no suggestion that the words in the ordinance are ambiguous or that they should be read with some kind of reasonably differing emphasis. We decline to insert words in the ordinance or depart from its common sense meaning. At this level, therefore, deference to the City's interpretation is not in order.

¶7 The second rule of construction mentioned above relates specifically to what deference should be accorded to the City's interpretation of its own ordinance. As noted above, persuasive weight is to be given the long-standing construction of ordinances by the agency. However, it appears that the City was not aware of the construction being given the ordinance by the ZEO over a period of about sixteen years. The City never construed this ordinance until this case was filed. In its findings, the City relies mostly on textual comparisons to support its interpretation as to what the drafters of the Code intended. However the City also notes that the ZEO, the person designated by the Zoning Code to enforce the Code and issue declaratory rulings as to its applicability, has previously allowed non-storage outside activities in the C-2 zone to continue if they have received conditional use approvals. The Zoning Hearing Examiner (ZHE), the person who approves or denies a conditional use application, has also proceeded according to this understanding. These activities included outside retail and outside display, and in one case included go-carts and in two cases included water slides. It thus appears, not only that there is no longstanding basis for according weight to the present construction by the City, but that the construction by zoning officials has been to allow outside activities under the ordinance, if the applicants receive conditional use approvals. In addition, in 1985, the Zoning Procedures Manual was published as a supplement to the Zoning Code and specifically instructed that any outside activity could be proposed under the same section in question here. See Albuquerque, N.M., Zoning Procedures Manual: A Supplement To the Comprehensive City Zoning Code and Section Procedures in General (3d ed.1985).

¶8 We also note that in 1993, Section 7-14-22.B.13 of the Zoning Code was amended by replacing the term "outside activity" with "outdoor activity," and using that term to clearly indicate that its meaning was not limited to "storage activity." The amended section reads in relevant part:

13. Outdoor storage or activity, except as specifically listed as a permissive or conditional use in this section and as further provided below:

...

(b) Combinations of uses, some or all of which are outdoor uses, which interact to create a more intense use, operating as one coordinated enterprise or attraction are not...