Atlixco Coalition v. County of Bernalillo, 18,901, 18,950, 18,951.

• Decision Date: 10 May 1999
• Docket Number: No. 18,901, 18,950, 18,951.,18,901, 18,950, 18,951.
• Citation: 127 N.M. 549,984 P.2d 796
• Parties: The ATLIXCO COALITION, et al., Petitioners-Appellants, and Andy Padilla and Theodore S. Jojola, Intervenors-Appellants, and Pueblo of Isleta, Intervenor-Appellant, v. COUNTY OF BERNALILLO, the Board of County Commissioners of Bernalillo County, and Southwest Landfill, Inc., Respondents-Appellees.
• Court: Court of Appeals of New Mexico

984 P.2d 796

127 N.M. 549

The ATLIXCO COALITION, et al., Petitioners-Appellants,

and

Andy Padilla and Theodore S. Jojola, Intervenors-Appellants, and Pueblo of Isleta, Intervenor-Appellant, v. COUNTY OF BERNALILLO, the Board of County Commissioners of Bernalillo County, and Southwest Landfill, Inc., Respondents-Appellees.

No. 18,901, 18,950, 18,951.

Court of Appeals of New Mexico.

May 10, 1999.

Certiorari Denied June 21, 1999.

J. Douglas Foster, Foster• Johnson•Harris• McDonald, Albuquerque, for Appellants.

John A. Myers, Kevin J. McCready, Myers, Oliver & Price, P.C., Albuquerque, for Appellee-Southwest Landfill, Inc.

Patrick F. Trujillo, Assistant County Attorney, Albuquerque, for Appellees County of Bernalillo and Board of County Commissioners of Bernalillo County Ussery & Parrish, P.A., Albuquerque, for Intervenors-Appellants.

Certiorari Denied, No. 25,789, June 21, 1999.

OPINION

ARMIJO, Judge.

{1} The Atlixco Coalition and others (Atlixco) challenge the Bernalillo County Board of County Commissioners' (the Board) approval of an "amendment" to Southwest Landfill, Inc.'s (Southwest), operating permit. The amended permit effectively allowed Southwest to expand the operation of its landfill. In this appeal, Atlixco alleges: (1) the Board's action violated county law, including policy and resolution made binding upon the Board by ordinance; (2) Southwest's application for an amendment to its existing permit was tantamount to an application for a wholly new permit and accordingly was inappropriately before the Board for Southwest's failure to submit adequate documentation; and (3) the Board impermissibly approved Southwest's application without the affirmative vote of a super-majority. We review the Board's decision to determine whether it is arbitrary or capricious, an abuse of discretion, not supported by substantial evidence in the record, or otherwise not in accordance with law. For the reasons explained below, we reverse the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

{2} This appeal centers on the operation of a landfill, located in the Rio Grande Valley southwest of Albuquerque. Appellants are individual residents and neighborhood organizations who sought certiorari review by the district court of the decision of the Board to approve a special-use permit application filed by Southwest.

a. THE PERMITTING PROCESS

{3} In 1986, Southwest began operating a "modified sanitary landfill" at its site by a Board-issued special-use permit (the Special-Use Permit). On September 23, 1996, Southwest submitted an application to the county to modify the Special-Use Permit. It sought permission to convert its "construction debris only" landfill to a "municipal waste" landfill. Southwest sought to make this transformation by having the county delete from the Special-Use Permit a condition which restricted the landfill to receipt of "construction debris only."

{4} The first step in Southwest's effort to effect this change was consideration of its application by the Bernalillo County Planning Commission (the CPC). The CPC's staff recommended against approving the modification. The staff reported to the CPC that "[t]he applicant has submitted no technical information supporting the request or demonstrating how or why the requested change is consistent with County Policies and adopted Ordinances." It further reported that Southwest had failed to demonstrate the need for an additional municipal waste landfill and that the application was inconsistent with the Albuquerque/Bernalillo Comprehensive Plan, the Southwest Area Plan, and the Ground-Water Protection Policy and Action Plan.

{5} During a public hearing before the CPC, the county's zoning administrator testified that the change from a "construction debris" landfill to a "municipal waste" landfill was a change in use and as such would have to be supported by the same type of technical information that was considered and analyzed in connection with approval of the Cerro Colorado landfill, a municipal-waste landfill. The CPC, however, rejected its staff's recommendation and voted to approve the change to a municipal-waste landfill.

{6} Atlixco thereafter filed an appeal to the Board. On December 17, 1996, the Board conducted a public meeting. At that meeting, by a vote of three to two, the Board denied the appeal and approved the CPC's action. The effect of the Board's action was to authorize Southwest's operation of a "municipal landfill," as set forth in 20 NMAC 9.1(AM)(1) (1994).

{7} Atlixco then sought certiorari review of the Board's decision in district court. In a brief order, the district court dismissed Atlixco's petition as without merit. This appeal followed.

b. THE SPECIAL-USE PERMIT

{8} Southwest's original Special-Use Permit authorized the company to accept approximately 400,000 yards of waste from the site of the then-future airport. Southwest has continued to operate, without interruption, a "modified sanitary landfill" at this site per the Board's regular renewal of the Special-Use Permit, amendment of which was the subject of the proceedings below.

{9} Among other conditions, the Special-Use Permit restricts the company regarding the types of waste it can accept. Specifically, the permit's eighth condition states: "Construction debris only shall be permitted at the Southwest Landfill. The definition of Construction Debris shall be as stated in the New Mexico Solid Waste Management Regulations." State regulation further provides:

"construction and demolition debris" means materials generally considered to be not water soluble and nonhazardous in nature, including, but not limited to, steel, glass, brick, concrete, asphalt roofing materials, pipe, gypsum wallboard and lumber from the construction or destruction of a structure project, and includes rocks, soil, tree remains, trees and other vegetative matter that normally results from land clearing. If construction and demolition debris is mixed with any other types of solid waste, it loses its classification as construction and demolition debris. Construction and demolition debris does not include asbestos or liquids including but not limited to waste paints, solvents, sealers, adhesives or potentially hazardous materials.

20 NMAC 9.1(T) (1994). The Board has incorporated this restriction into each of Southwest's permits since the company began operating its landfill. Each year from 1987 to 1990, Southwest sought to remove the restriction. Prior to 1996, the Board denied each application.

{10} By state regulation, a "municipal landfill" can receive much more than "construction and demolition debris." Specifically, it may receive "household waste ... [and] other types of [Federal Resource Conservation and Recovery Act] Subtitle D waste such as commercial solid waste, nonhazardous sludge, small quantity generator waste, industrial solid waste, construction and demolition debris and other special wastes as defined in Section 105.BZ." 20 NMAC 9.1(AM)(1). Under state law, a landfill is automatically regulated as a "municipal landfill" if it accepts more than twenty-five tons of waste per day, regardless of its content. See 20 NMAC 9.1(AM)(2). The state has already approved, in accordance with state law, Southwest's application to operate a municipal solid waste landfill at this site. See Atlixco Coalition v. Maggiore, 1998-NMCA-134, 125 N.M. 786, 965 P.2d 370

. Furthermore, Southwest has, on its own initiative, begun accepting more than twenty-five tons of waste per day, thus triggering more stringent state regulation of its operations. See 20 NMAC 9.1(AM)(2). Regardless of the state's regulation of the landfill, however, the county retains authority to regulate land use within its boundaries. See NMSA 1978, § 3-31-1 (1995); see also NMSA 1978, § 74-9-42 (1990); 20 NMAC 9.1.1004 (1995). Southwest, therefore, was required to obtain the Board's approval before expanding its landfill.

STANDARD OF REVIEW

{11} In reviewing the decisions of a zoning body, we look to the whole record and examine all the evidence presented, both that which supports as well as that which contradicts the action taken. The focus of our inquiry is to determine whether: (1) the Board acted fraudulently, arbitrarily, or capriciously; (2) its decision is not supported by substantial evidence or exceeded the scope of its authority; or (3) the decision is otherwise not in accordance with law. See Rule 1-074(Q) NMRA 1999; see also Embudo Canyon Neighborhood Ass'n v. City of Albuquerque, 1998-NMCA-171, ¶ 7, 126 N.M. 327, 968 P.2d 1190

; Siesta Hills Neighborhood Ass'n v. City of Albuquerque, 1998-NMCA-028, ¶ 7, 124 N.M. 670, 954 P.2d 102. In reaching our conclusion, we do not substitute our judgment for that of the administrative body. See Clayton v. Farmington City Council, 120 N.M. 448, 453, 902 P.2d 1051, 1056 (Ct.App.1995).

DISCUSSION

{12} Chief among Appellants' claims is its allegation that the Board violated applicable county law. Specifically, Appellants claim that the Board failed to: (1) consider whether approval of Southwest's application would violate the county's Ground-Water Protection Policy and Action Plan (the GPPAP); and (2) apply the requirements of the county's Resolution No. 116-86 (Oct. 21, 1986). The Board and Southwest argue, however, that the GPPAP and Resolution No. 116-86 do not have the force of law and therefore are not binding on the Board's actions. We will determine as a matter of law whether these measures are binding upon the Board. See High Ridge Hinkle Joint Venture v. City of Albuquerque, 119 N.M. 29, 38, 888 P.2d 475, 484 (Ct.App.1994)

("Construction of the [zoning] ordinance is, of course, a matter of law.").

{13} In November 1993, the Board adopted the GPPAP by resolution. Inter alia, the GPPAP prohibits the "expansion of or creation of new municipal or privately-owned landfills in crucial areas and wellhead protection areas." GPPAP § 3. Accordingly, implicit in its plain...