1999 -NMCA- 15, Bennett v. City Council for City of Las Cruces

• Decision Date: 21 December 1998
• Docket Number: No. 18478,18478
• Citation: 126 N.M. 619,973 P.2d 871,1999 NMCA 15
• Parties: , 1999 -NMCA- 15 Ruth A. BENNETT, Robert Bennett, and J. Henry Gustafson, Petitioners-Appellees, v. The CITY COUNCIL FOR the CITY OF LAS CRUCES, New Mexico, and Gary Krivokapich, Respondents-Appellants.
• Court: Court of Appeals of New Mexico

Page 871

973 P.2d 871

126 N.M. 619, 1999 -NMCA- 15

Ruth A. BENNETT, Robert Bennett, and J. Henry Gustafson Petitioners-Appellees, v. The CITY COUNCIL FOR the CITY OF LAS CRUCES, New Mexico, and Gary Krivokapich, Respondents-Appellants.

No. 18478.

Court of Appeals of New Mexico.

Dec. 21, 1998.

Neil E. Weinbrenner, Law Offices of Neil E. Weinbrenner, P.A., Las Cruces, for Appellees.

Harry S. "Pete" Connelly, Las Cruces, for Appellant City of Las Cruces.

Joseph Cervantes, Cervantes Law Firm, Las Cruces, for Appellant Krivokapich.

OPINION

WECHSLER, Judge.

¶1 The City of Las Cruces and Gary Krivokapich appeal the district court's reversal of a decision by the Las Cruces City Council (Council) to change the zoning of property owned by the Krivokapich family from high-density residential to commercial with conditions. They argue that the district court improperly took additional evidence regarding the rezoning request and that the Council's rezoning did not constitute illegal spot zoning as the district court found. We agree with these arguments and reverse the decision of the district court.

Factual and Procedural Background

¶2 Gary Krivokapich, together with and on behalf of his parents, Bosco and Annie Jo Krivokapich, applied to the City for a zoning change from R-3 (high-density residential) to C-2c (general commercial with conditions) of a 4.2-acre unimproved parcel (Parcel) owned by Bosco and Annie Jo Krivokapich. C-2 zoning generally would permit commercial/retail uses which generate large volumes of automobile traffic, such as convenience stores and service facilities. The Parcel is located on the northeast corner of El Paseo Avenue and Farney Lane in Las Cruces.

¶3 The Las Cruces Planning and Zoning Commission (Zoning Commission) held a hearing on June 28, 1994 and heard testimony from various people. Bosco and Gary Krivokapich spoke about plans to develop a small, commercial center subject to numerous restrictive conditions. Bill Webber, an attorney representing the Crescent Park area residents' group, spoke against the change indicating he believed it constituted spot zoning. Ruth Bennett, a neighbor in the Crescent Park Subdivision, and Henry Gustafson, owner of property across the street from the Parcel, also spoke against the proposed change. David Weir, a senior planner for the City, summarized a report prepared by the Las Cruces Planning Department recommending against the change and indicating that the department thought the change would be considered spot zoning. Based upon the testimony and the planning department report, the Zoning Commission voted against the proposed change. The Zoning Commission only has the authority to make recommendations to the Council.

¶4 The Council scheduled a hearing on the issue for its September 19, 1994 meeting. It mailed notice to nearby property owners and published notice in the Las Cruces Sun News. At the September 19, 1994 meeting, the Council tabled the issue until its next scheduled meeting two weeks later. Ruth Bennett and Henry Gustafson attended the September 19, 1994 meeting. When the Council subsequently heard the issue at its October 3, 1994 meeting, it had before it a copy of the proposed rezoning ordinance, an appeal letter from the Krivokapich family with photographs of the surrounding area, the planning department report, many protest letters, and the minutes of the June 28, 1994 Zoning Commission meeting.

¶5 When Mayor Ruben Smith called the matter for discussion at the October 3, 1994 meeting, he limited, without objection, the length of testimony from witnesses to approximately ten minutes each. The Council then heard testimony from several individuals, beginning with Gary Krivokapich. Bill Webber spoke against the development on behalf of the Crescent Park area residents' group. Community member Reed Larsen voiced his protest, as did Diana Mervine, representative of the Mesilla Valley Christian Church, an adjacent property owner. Gary Krivokapich, Webber, and members of the planning department fielded questions from the council members. The Council approved the zoning change from R-3 to C-2c.

¶6 Ruth and Robert Bennett and Henry Gustafson subsequently applied for a writ of certiorari to the district court, and also filed a complaint for declaratory judgment contending that: (1) the Council's decision to rezone the Parcel was impermissible spot zoning; (2) notice of the City Council hearing was insufficient; and (3) the Council violated due process by limiting testimony to ten minutes each. The district court granted the writ, took additional testimony, and held for petitioners on each issue. This appeal followed.

The Council Provided Adequate Notice

¶7 The district court found that the Council failed to give proper notice of the hearing to Gustafson in violation of NMSA 1978, § 3-21-6(B) (1981) or the City Zoning Code. We do not agree. Our Supreme Court has held that "substantial compliance" with notice and publication is sufficient to satisfy statutory requirements. See Nesbit v. City of Albuquerque, 91 N.M. 455, 457, 575 P.2d 1340, 1342 (1977) (stating that while "some courts have held that even a minor defect in notice will invalidate an action taken by the zoning authority, New Mexico does not take such a strict view"); see also Hawthorne v. City of Santa Fe, 88 N.M. 123, 124, 537 P.2d 1385, 1386 (1975).

¶8 In Hawthorne, the city failed to mail notice to one adjacent property owner, but had mailed notice to all others and also had published notice. See id. at 123-24, 537 P.2d at 1385-86. The adjacent property owner had actual notice of the public hearing. See id. at 124, 537 P.2d at 1386. The Court rejected the argument that "failure to give notice in strict compliance" with an earlier version of Section 3-21-6 was error, stating that despite failure to mail notice to the adjacent property owner, the property owner was fully aware of the proposed zone changes. Id. The Court reasoned that the purpose of notice "is to apprise interested parties of the hearing so that they may attend and state their views on [a] proposed zoning amendment, pro or con." Id. Since the affected property owner in Hawthorne had actual knowledge of the hearing, the Court held that the city had substantially complied with notice provisions of the statute. See id.

¶9 In the present case, it is undisputed that the Council published notice of the proposed zoning ordinance in the Las Cruces Sun News on September 4, 1994 for the September 19, 1994 meeting. It is also undisputed that the Council mailed notice to Gustafson in accordance with both Section 3-21-6 and the City Zoning Code. At the Council meeting on September 19, 1994, Mayor Smith called the issue out of order. After brief discussion, the issue was tabled, and Mayor Smith announced that the issue "will be heard in two weeks, it will not be heard this evening." At the very least, the Mayor's announcement constitutes substantial compliance with notice requirements in accordance with Hawthorne because actual notice was given to affected property owners.

¶10 Gustafson contends that since he was not present at the Council meeting at the time Mayor Smith announced that the issue would be heard in two weeks, he did not receive notice in violation of the statute. However, this Court has held in similar situations that "where circumstances are such that a reasonably prudent person should make inquiries, that person is charged with knowledge of the facts reasonable inquiry would have revealed." Bogan v. Sandoval County Planning & Zoning Comm'n, 119 N.M. 334, 341, 890 P.2d 395, 402 (Ct.App.1994).

¶11 It is undisputed that Gustafson arrived late to the Council meeting and inquired of other attendees as to the status of the issue. Upon hearing that the issue would not be heard that evening, Gustafson left. Gustafson indicated that he had previous experience attending council meetings, and based upon that experience, he arrived at what he thought would be the appropriate time to hear the issue. He admitted that it would have been of interest to him to know whether the issue was tabled and when it would be reheard, but that he did not make any further inquiry of the Council or City as to the status of the issue.

¶12 Based upon the testimony and the fact that the Council provided actual notice, it was incumbent upon Gustafson to inquire of the City as to the status of the proposed ordinance. Once arriving and learning that the issue would not be heard that night, a reasonably prudent person with experience in attending city council meetings should have inquired of city representatives as to the status. See Bogan, 119 N.M. at 341, 890 P.2d at 402. As a result, we hold that the Council provided adequate notice.

The Council Had Authority to Impose Time Restrictions

¶13 Gary Krivokapich and the City argue that the district court improperly found that Plaintiffs' due process rights were violated because of time limitations placed upon all attendees. The district court took additional testimony because it found "[t]hat because of the unreasonable limitations placed on Petitioners/Plaintiffs by the City Council in presentation of their position, [additional] testimony is necessary for a proper disposition of the matter."

¶14 We cannot agree with the district court's conclusion. The record states that "Mayor Smith said they are trying to keep each side to approximately 10 minutes in their presentation and ... both [sides] consented to do that." Plaintiffs made no objections about the time limits when first proposed by Mayor Smith, or at any time during the meeting. More importantly, there is nothing in the record to indicate that the Council thwarted any opponent or proponent from fully stating his or her views or told anyone to stop speaking because of the time constraints.

¶15 Section 3-21-6(B) requires a public hearing and opportunity to be heard. It is within the Council's authority to restrict...