Alb. Commons Partnership v. City Council

• Decision Date: 07 May 2009
• Docket Number: Nos. 24,042, 24,027, 24,425, 24,026.,s. 24,042, 24,027, 24,425, 24,026.
• Citation: 212 P.3d 1122,2009 NMCA 065
• Parties: ALBUQUERQUE COMMONS PARTNERSHIP, Petitioner-Appellee, v. CITY COUNCIL of the city of ALBUQUERQUE, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

212 P.3d 1122

2009 NMCA 065

ALBUQUERQUE COMMONS PARTNERSHIP, Petitioner-Appellee, v. CITY COUNCIL of the city of ALBUQUERQUE, Respondent-Appellant.

Nos. 24,042, 24,027, 24,425, 24,026.

Court of Appeals of New Mexico.

May 7, 2009.

Certiorari Granted, No. 31,724, July 1, 2009.

Certiorari Denied, No. 31,725, June 22, 2009.

Mettler & LeCuyer, P.C., Stephen T. LeCuyer, Bryan & Flynn-O'Brien, George R. Pat Bryan III, Timothy V. Flynn-O'Brien, Phillip B. Davis, Albuquerque, NM, for Appellee.

Robert M. White, City Attorney, Mark Hirsch, Assistant City Attorney, Lorenz Law, Alice T. Lorenz, Campbell & Wells, P.A., John S. Campbell, Albuquerque, NM, Robinson & Cole LLP, Dwight H. Merriam, James A. Wade, Gregory W. McCracken, Hartford, CT, for Appellant.

OPINION

CASTILLO, Judge.

{1} On motion for rehearing, the opinion filed October 30, 2008, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is otherwise denied.

{2} The operable event that forms the basis for these consolidated cases¹ occurred over thirteen years ago when the Albuquerque City Council (City) adopted the 1995 Uptown Sector Plan (1995 USP), which affected property leased by Albuquerque Commons Partnership (ACP). Until 1995, the leased property was governed by the 1981 Uptown Sector Plan (1981 USP). In 1991, ACP selected Opus Southwest Corporation (Opus) as the buyer for the leasehold. Opus submitted a site plan for the property in June 1994 and then, in July 1994, withdrew the plan because of public outcry. In September 1994, the City requested a comprehensive overview of the 1981 USP. Before the City could complete the overview, Opus submitted another site plan (ACP/Opus site plan). The City deferred consideration of the ACP/Opus site plan and implemented an expedited schedule to evaluate proposed revisions to the 1981 USP. The City ultimately adopted the 1995 USP.

{3} ACP sought review of the City's adoption of the 1995 USP in the trial court. ACP also claimed damages under 42 U.S.C. § 1983 (2000) for violations of due process and for an unconstitutional taking in violation of the Fifth Amendment. Concluding that the 1995 USP was enacted contrary to law as applied to ACP, the trial court ordered the City to consider the ACP/Opus site plan under the 1981 USP. The City complied and ultimately rejected the ACP/Opus site plan under the 1981 USP. The claims for damages continued to trial, and the jury found for ACP on both the due process and the takings claims. The takings verdict was dismissed pursuant to the doctrine of election of remedies.

{4} ACP appealed to this Court, and we reversed. Albuquerque Commons P'ship v. City Council of the City of Albuquerque (ACP II), 2006-NMCA-143, ¶ 2, 140 N.M. 751, 149 P.3d 67. Among other things, we held that (1) the City's adoption of the 1995 USP was a legislative act, (2) ACP was not entitled to quasi-judicial process, and (3) the City did not downzone ACP's property. Id. ¶¶ 36-39, 71. ACP appealed, and on certiorari our Supreme Court held that ACP's property was downzoned by the adoption of the 1995 USP and that as a result, the City had been required to provide ACP with quasi-judicial process. Albuquerque Commons P'ship v. City Council of the City of Albuquerque (ACP III), 2008-NMSC-025, ¶¶ 33, 43, 144 N.M. 99, 184 P.3d 411. The Supreme Court went on to hold that because the City did not provide these enhanced procedures, ACP's right to due process had been violated and that the 1995 USP was not properly enacted. Id. ¶¶ 51-52. Finally, the Supreme Court concluded that the City had wrongfully denied ACP approval of the ACP/Opus site plan under the 1981 USP. Id. ¶¶ 58-59. The Supreme Court therefore reversed ACP II and remanded the case to this Court to make the following determinations: (1) whether ACP had a constitutionally protected property interest that would satisfy the threshold requirement for a Section 1983 claim, (2) whether the 1995 USP was an unconstitutional taking of ACP's property by the City, and (3) whether damages were properly awarded. Id. ¶¶ 53-60. We will also consider the City's challenges to the trial court's award of attorney fees and costs.² We address each issue in turn and hold as follows: (1) we affirm the jury award of damages in the amount of $8,349,095 to ACP on its Section 1983 claim; (2) we need not address the issues related to the takings verdict because we affirm the Section 1983 award; (3) we reverse the award of post-judgment interest; and (4) we affirm the trial court's award of attorney fees and costs.

{5} The facts surrounding the adoption of the 1995 USP, the resulting law suits, and the several appeals are set forth in ACP II, 2006-NMCA-143, ¶¶ 4-29, 140 N.M. 751, 149 P.3d 67, and in ACP III, 2008-NMSC-025, ¶¶ 4-20, 144 N.M. 99, 184 P.3d 411. We need not repeat the long and complicated history of the case. Instead, we rely on the short background summary that we have already recited and will include additional facts as necessary. We now turn to the remaining issues on appeal.

DISCUSSION

A. Section 1983 Claim

{6} In order to prove its claim under Section 1983, ACP was required to show that the City, "acting under color of state law, cause[d ACP] to be deprived of a federally protected constitutional right." Miles v. Bd. of County Comm'rs, 1998-NMCA-118, ¶ 6, 125 N.M. 608, 964 P.2d 169. ACP argued at trial that the protected constitutional right violated by the City was the right to procedural due process. The jury entered a verdict for ACP. In its appeal to this Court, the City challenges the due process verdict on the following grounds: (1) the trial court improperly found that ACP had a constitutionally protected property right; (2) procedural due process protections do not apply in the present case because the adoption of the 1995 USP was a legislative act, and ACP received all of the process that was due; (3) the Section 1983 claim was not ripe; and (4) the trial court improperly awarded damages. In addressing each argument, we look to the holdings of our Supreme Court in ACP III— that ACP's property was downzoned, that the City accomplished the downzoning in a manner that violated ACP's due process rights, and that the adoption of the 1995 USP required a quasi-judicial hearing. ACP III, 2008-NMSC-025, ¶¶ 43, 51, 144 N.M. 99, 184 P.3d 411. We begin with the nature of ACP's property right.

1. Property Right

{7} To establish a violation of procedural due process, ACP was required to show that the City deprived ACP of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Here, we focus on the property interest portion of the equation. In order to decide whether a party has a constitutionally protected property right, we first must determine whether there is a state-created substantive property right and then consider whether that right triggers federal due process protections. Memphis Light, Gas & Water Div. v. Craft (Memphis Light), 436 U.S. 1, 10, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) ("Although the underlying substantive interest is created by an independent source such as state law, federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause." (internal quotation marks and citation omitted)).

a. State-Created Property Right

{8} Our Supreme Court has explained that constitutionally protected "property interests are those to which an individual has a claim of entitlement." Mills v. N.M. State Bd. of Psychologist Exam'rs, 1997-NMSC-028 ¶ 15, 123 N.M. 421, 941 P.2d 502. Although it is well settled under New Mexico law that a property owner has no vested right in a particular zoning classification, Aragon & McCoy v. Albuquerque Nat'l Bank, 99 N.M. 420, 423, 659 P.2d 306, 309 (1983), ACP relies on requirements associated with "downzoning" in order to establish a property right. According to ACP, because its property was downzoned, and not simply rezoned, the City was required to establish a mistake in the original zoning or subsequent changed conditions in the neighborhood before the zoning could be legally changed. Miller v. City of Albuquerque, 89 N.M. 503, 506, 554 P.2d 665, 668 (1976). The requirement enunciated in Miller is referred to as the "change or mistake" rule. Our Supreme Court agreed with ACP's position and held that "the City's actions did constitute a downzoning of [ACP's] property without complying with important standards set forth in Miller and Davis [v. City of Albuquerque, 98 N.M. 319, 321, 648 P.2d 777, 779 (1982)]." ACP III, 2008-NMSC-025, ¶ 2, 144 N.M. 99, 184 P.3d 411.

{9} In addition, the City's applicable zoning regulation—Resolution 270-1980—tracks the "change or mistake" requirement. ACP III, 2008-NMSC-025, ¶ 28, 144 N.M. 99, 184 P.3d 411. In order to implement a map amendment to a zoning classification, Resolution 270-1980 requires the City to "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." ACP II, 2006-NMCA-143, ¶ 64, 140 N.M. 751, 149 P.3d 67 (internal quotation marks and citation omitted). In the present case, the Supreme Court has held that the 1995 USP was a map amendment, which triggered the requirements of Resolution 270-1980. ACP III, 2008-NMSC-025, ¶ 50, 144 N.M. 99, 184 P.3d 411.

{10} Based on these New Mexico cases and Resolution 270-1980, we agree with the trial court that ACP had a right, under state law, to continued zoning in the face of downzoning or a map amendment unless the City was able to justify a zoning change under the requirements enunciated by Resolution 270-1980 and Miller. Accordingly, we conclude that ACP had a state-created property interest.

b. Federal Protection

{11} The next inquiry is whether the...