Albuquerque Commons v. City Council

• Court: New Mexico Supreme Court
• Writing for the Court: Bosson
• Citation: Albuquerque Commons v. City Council, 184 P.3d 411, 2008 NMSC 25, 144 N.M. 99 (N.M. 2008)
• Decision Date: 18 February 2008
• Docket Number: No. 29,791.,No. 29,799.,29,791.,29,799.
• Parties: ALBUQUERQUE COMMONS PARTNERSHIP, Petitioner-Petitioner, v. CITY COUNCIL OF the CITY OF ALBUQUERQUE, Respondent-Respondent. Albuquerque Commons Partnership, Petitioner-Petitioner, v. City Council of the City of Albuquerque, Respondent-Respondent.

184 P.3d 411

2008 NMSC 025

144 N.M. 99

ALBUQUERQUE COMMONS PARTNERSHIP, Petitioner-Petitioner, v. CITY COUNCIL OF the CITY OF ALBUQUERQUE, Respondent-Respondent.

Albuquerque Commons Partnership, Petitioner-Petitioner, v. City Council of the City of Albuquerque, Respondent-Respondent.

No. 29,791.

No. 29,799.

Supreme Court of New Mexico.

February 18, 2008.

Rehearing Denied May 2, 2008.

Mettler & Lecuyer, P.C., Stephen T. Lecuyer, Philip D. Davis, Timothy V. Flynn-O'Brien, George R. "Pat" Bryan, III, Albuquerque, NM, for Petitioner.

Robert M. White, City Attorney, Mark A. Hirsch, Deputy City Attorney, UNM School of Law, Michael B. Browde, Campbell & Wells, P.A., John S. Campbell, Miller & Stratvert, P.A., Alice Tomlinson Lorenz, Albuquerque, NM, Robinson & Cole, L.L.P., Dwight H. Merriam, Peter S. Olson, Hartford, CT, for Respondent.

Van Amberg, Rogers, Yepa & Abeita, L.L.P., Ronald J. Van Amberg, Santa Fe, NM, Leof T. Strand, Attorney at Law, P.C., Leof T. Strand, Albuquerque, NM, for Amicus Curiae, Volcano Cliffs Property Owners Association.

New Mexico Municipal League, Randall D. Van Vleck, Santa Fe, NM, International Municipal Lawyers Association, Charles W. Thompson, Jr., Devala A. Janardan, Bethesda, MD, for Amici Curiae, New Mexico Municipal League, International Municipal Lawyers Association and The National League of Cities.

Hunt & Davis, P.C., Catherine F. Davis, Julie J. Vargas, Albuquerque, NM, for Amicus Curiae, Greater Albuquerque Chamber of Commerce.

Cassutt, Hays & Friedman, P.A., Kenneth J. Cassutt, Santa Fe, NM, Garvey Schubert & Barer, Carrie A. Richter, Edward J. Sullivan, Portland, OR, for Amici Curiae, American Planning Association and N.M. Chapter of the American Planning Association.

Anita P. Miller, Attorney at Law, P.C., Anita P. Miller, Albuquerque, NM, Noble & Wickersham, L.L.P., Jay Wickersham, Cambridge, MA, for Amicus Curiae, Boston Society of Architects.

OPINION

BOSSON, Justice.

{1} In Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976), this Court held that when a zoning authority rezones a piece of property to a more restrictive use (known as "downzoning"), the zone change must be justified by either a change in the surrounding community or a mistake in the original zoning. We later reaffirmed this rule in Davis v. City of Albuquerque, 98 N.M. 319, 648 P.2d 777 (1982), and applied it to a rezoning pursuant to a sector plan. In this case, the City of Albuquerque adopted a new sector plan that restricted the uses on Petitioner's property. Petitioner argues, and the district court agreed, that, in adopting this sector plan, the City downzoned Petitioner's property without complying with Miller and in violation of Petitioner's procedural due process rights. A jury also agreed with Petitioner and awarded damages under 42 U.S.C. § 1983.

{2} The City claims, and the Court of Appeals agreed in reversing the damages award, that Miller and Davis do not apply to the City's zoning action because (1) the adoption of the sector plan in this case was a legislative act, and (2) the zone change was done pursuant to a text amendment, as opposed to a map amendment, and was therefore not the type of zone change to which Miller and Davis apply. See Albuquerque Commons P'ship v. City Council of the City of Albuquerque, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, cert granted, 2006-NMCERT-011, 140 N.M. 846, 149 P.3d 943 (Commons II). We now hold that the City's actions did constitute a downzoning of Petitioner's property without complying with important standards set forth in Miller and Davis, which we reaffirm in this Opinion. Accordingly, we reverse the Court of Appeals and remand for further proceedings.

BACKGROUND

{3} The facts pertinent to this appeal are set forth thoroughly and comprehensively in the Court of Appeals opinion, and we refer only to those portions of the record that are necessary to resolve this appeal.

{4} From 1987 to 1998, Petitioner Albuquerque Commons Partnership ("ACP") held a long-term ground lease for the old St. Pius High School site in Albuquerque, located north of the Winrock Shopping Center. This property is part of an approximately 460-acre area designated by the City's Comprehensive Plan as the Uptown Sector, one of several urban centers in the city. When ACP leased the 28-acre parcel from the Archdiocese of Santa Fe, the zoning was governed by the 1981 Uptown Sector Plan, under which the majority of the 460 acres, including ACP's property, was zoned SU-3, with the periphery being zoned either SU-2 or R-1. "SU-3 zoning provides suitable sites for high-intensity mixed uses—commercial, office, service, and residential." Commons II, 2006-NMCA-143, ¶ 6, 140 N.M. 751, 149 P.3d 67. Important to our later analysis, the 1981 Uptown Sector Plan standards did not mandate minimum development densities, mixed uses, or parking structures, and did not prohibit free-standing buildings, limit the amount of retail use in a development, or require that an entire project be built at once instead of in phases.

{5} From the time the City adopted the 1981 Uptown Sector Plan until it passed the 1995 amendments that are the subject of this suit, the City approved several suburban retail projects within the same area, including a Beall's, a Dillard's addition, a theater, mall expansion, and three new restaurants (all at Winrock), as well as three new restaurants and two new stand-alone retail projects outside Winrock. The City also approved a zone change allowing Toys R Us to demolish office space and replace it with a new stand-alone "medium box" retail building. As we shall see, these projects would not have been allowable under the 1995 Uptown Sector Plan amendments.

{6} In 1991, ACP decided to sell its leasehold, selecting Opus Southwest Corporation ("Opus") to assume development of the property. Opus proposed to either purchase or lease the property if it could obtain approval of its site development plan. In June 1994, Opus submitted a site plan for a stand-alone retail project on ACP's property. This proposal also included a request for a zone map amendment because the site plan included property in the SU-2 zone. Due to strong public opposition, Opus withdrew its proposal on August 31, 1994.

{7} Two weeks after Opus withdrew its first site plan proposal, the City passed Memorial M7-1994, requesting a comprehensive public review and revision of the 1981 Uptown Sector Plan. The City stated its desire to fulfill the vision of the Comprehensive Plan and observed that the 1981 Uptown Sector Plan needed to be revised and strengthened. Thus, the City "requested that the planning department present its `plan-amendment recommendations and a record of the public review' of the [1981 Uptown Sector Plan] to the City's Environmental Planning Commission (EPC) for consideration by the end of April 1995." Commons II, 2006-NMCA-143, ¶ 10, 140 N.M. 751, 149 P.3d 67.

{8} Shortly thereafter, on September 30, 1994, Opus submitted its second site plan, this time proposing a smaller, 17.90-acre low-density "big-box" retail project. This project was to be located entirely within the SU-3 zone and would not require any zone map amendments. Id. The Planning Department's initial reports to the EPC on the project stated that the retail uses were allowed by the 1981 Uptown Sector Plan, and proposed consistent EPC findings.

{9} The Opus site plan was originally set for a hearing before the EPC in November 1994, but Opus agreed to a deferral of the hearing until January 1995. EPC then deferred consideration of the site plan until February 9, 1995, due to information that the City was considering a moratorium on development in the Uptown Sector pending revision of the 1981 Uptown Sector Plan. On February 6, 1995, the City Council passed a resolution placing a four-month moratorium on all development within the Uptown Sector.

{10} After instituting the moratorium and deferring consideration of ACP's project, the Planning Department implemented "a fast-track schedule with specific deadlines to prepare information necessary to evaluate proposed revisions to the [1981 Uptown Sector Plan]." Commons II, 2006-NMCA-143, ¶ 15 140 N.M. 751, 149 P.3d 67. The proposed revisions split the existing SU-3 zone into two new sub-zones: the "Intense Core" and the "Outside of Intense Core," separated by the Loop Road. Though the zoning classification remained the same for the entire area, additional regulations applicable only to the Intense Core were significantly more restrictive than those under the 1981 Uptown Sector Plan or in the Outside of Intense Core. The newly-proposed Intense Core regulations prohibited free-standing retail, imposed limitations on the size of retail buildings, and required mixed uses, with retail comprising no more than 10 percent of space built on a site. Additionally, the Intense Core regulations required a specific density of uses, structured parking, and, significantly, construction of an entire project at once, without phasing to match construction demand. In contrast, the Outside of Intense Core regulations allowed retail uses to continue at existing density. Retail was limited to 10 percent of new space, but "redevelopment/replacement of existing space" was exempted.

{11} ACP's leased property was located entirely within the Intense Core zone. Only two other property owners owned land in the Intense Core, and ACP's property made up two-thirds of the affected land. Further, though all three tracts of land were vacant, only ACP had a pending site plan submitted to the City. As a practical matter, therefore, the new regulations affected primarily ACP and its leasehold interest.

{12} A series of public hearings was scheduled before the EPC, the Land Use Planning and Zoning Committee (LUPZ), and the City Council to consider the amendments. The City initially claimed that the purpose of the amendments was to improve air quality. While the EPC agreed that the 1981...