Bd. of Trs. of La Merced Del Pueblo de Tajique v. Bd. of Cnty. Comm'rs of Torrance Cnty.

• Decision Date: 16 May 2022
• Docket Number: A-1-CA-38686
• Parties: BOARD OF TRUSTEES OF LA MERCED DEL PUEBLO DE TAJIQUE, Appellant-Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF TORRANCE COUNTY, Appellee-Respondent, and GRAVITY PAD PARTNERS, LLC, Intervenor-Respondent.
• Court: Court of Appeals of New Mexico

BOARD OF TRUSTEES OF LA MERCED DEL PUEBLO DE TAJIQUE, Appellant-Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF TORRANCE COUNTY, Appellee-Respondent, and GRAVITY PAD PARTNERS, LLC, Intervenor-Respondent.

No. A-1-CA-38686

Court of Appeals of New Mexico

May 16, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY Matthew Reynolds District Judge

New Mexico Legal Aid David Benavides Santa Fe, NM for Petitioner

John M. Butrick Estancia, NM for Appellee-Respondent

Hatch Law Firm Jesse C. Hatch Albuquerque, NM for Intervenor-Respondent

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} Petitioner Board of Trustees of La Merced del Pueblo de Tajique appeals the district court's decision to affirm the Board of County Commissioners of Torrance County's (the Board) decision that granted Intervenor Gravity Pad Partners, LLC (Gravity Pad) a conditional use permit and variance to construct a telecommunication tower. Petitioner argues the permit violates the Torrance County Zoning Ordinance (the Ordinance) because the Ordinance does not allow conditional use permits for "communication structures and facilities" in the relevant zone district, and, because "communication structures and facilities" are not permitted uses, a further variance is not permitted. We reverse.

BACKGROUND

{¶2} Gravity Pad applied to the Torrance County Planning and Zoning Board (the Zoning Board) for a conditional land use permit and height variance for a "new 199[ -]foot self[-]support telecommunication tower to provide cellular coverage" in Torrance County (the Application). The Zoning Board heard testimony, accepted written public comment, and voted to deny the Application. Gravity Pad appealed the Zoning Board's decision to the Board. The Board considered the evidence presented to the Zoning Board as well as additional testimony and public comment, voted to reverse the decision of the Zoning Board, and approved the conditional use permit and variance. Petitioner appealed the Board's decision to the district court. The district court summarily denied the appeal. In response, Petitioner filed a petition for writ of certiorari to this Court, pursuant to Rule 12-505 NMRA.

DISCUSSION

{¶3} The district court's standard of review for "the decision of an administrative agency is (1) whether the agency acted fraudulently, arbitrarily, or capriciously; (2) whether based upon the whole record on appeal, the decision of the agency is not supported by substantial evidence; (3) whether the action of the agency was outside the scope of authority of the agency; or (4) whether the action of the agency was otherwise not in accordance with law." Filippi v. Bd. of Cnty. Comm'rs of Torrance Cnty., 2018-NMCA-050, ¶ 10, 424 P.3d 658 (internal quotation marks and citation omitted); see Rule 1-074(R) NMRA (delineating the standard of review by the district court of administrative decisions). This Court employs "the same standard of review used by the district court while also determining whether the district court erred in its review" in administrative appeals on certiorari. Paule v. Santa Fe Cnty. Bd. of Cnty Comm'rs, 2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240. Because the district court summarily affirmed, we review the Board's decision.

I. The Torrance County Zoning Ordinance

{¶4} We first address requirements for a conditional use permit as set out in the Ordinance, which controls the requirements for the Application. Three factors must be considered when granting a conditional use permit per the Ordinance-the zone district, the allowable land use, and the conditional use permit guidelines, such as the proposed land use's general compatibility with adjacent properties. Torrance County, N.M., Zoning Ordinance §§ 6(K), app. at 1, 21(D)(5) (2016).^[1] Only the zone district and allowable land use are implicated here and we describe each in turn.

{¶5} Torrance County is separated into thirteen zone districts, in which "requirements for the use of land and building and development standards are prescribed." Torrance County, N.M., Zoning Ordinance §§ 7(A), 4(B)(46). The two zone districts relevant to this appeal are the Village Community Preservation District (VCP) and the Rural Community Preservation District (RCP). See Torrance County, N.M., Zoning Ordinance §§ 14.0, 14.1. The VCP zone district "preserves residential clusters in established unincorporated communities, and is intended to protect development of historic significance." Torrance County, N.M., Zoning Ordinance § 14.0(A). The RCP zone district "protects and preserves areas within [Torrance] County, which are characterized by their limited access, minimal development, limitations on water resources, natural beauty, fragile environment[, ] and native wildlife populations." Torrance County, N.M., Zoning Ordinance § 14.1(A). In its decision, the Board found that the Application sought to erect the proposed tower in the VCP zone district. In both VCP and RCP zone districts, "[n]o building, structure, or land shall be used or occupied except as indicated and for the purposes permitted . . . . Uses permitted by right and uses allowed upon obtaining a Conditional Use Permit are described in the Torrance County Zoning Table of Land Uses [(the Table of Land Uses)]." Torrance County, N.M., Zoning Ordinance §§ 14.0(B), 14.1(B). Thus, the purpose of the telecommunication tower is relevant to the allowable land use.

{¶6} The Table of Land Uses in the Ordinance "enumerates the allowable land uses in each Zone District," and contains over 150 listed land uses. Torrance County, N.M., Zoning Ordinance § 6(K), app. at 1-7. Relevant to the present case, two types of allowable land uses for the particular zone districts are listed in the Ordinance: "[e]ssential public utilities distribution structures" and "[c]ommunication structures and facilities." Torrance County, N.M., Zoning Ordinance app. 1 at 2, 3. Neither of these two listed land uses are defined in the Ordinance. The general provisions section of the Ordinance states that, "[e]xcluding towers for cell phone communications . . . and telephone communications, a parcel used for essential public utility distribution structures or for communication structures or facilities shall be at least 5 acres in area." Torrance County, N.M., Zoning Ordinance § 6(G). Thus, the Ordinance contemplates cell phone communication towers could be either "essential public utilities distribution structures" or "communication structures or facilities." Id.; see Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regulation Comm'n, 2010-NMSC-013, ¶ 51, 148 N.M. 21, 229 P.3d 494 ("The canons of statutory construction guide our interpretation of administrative regulations."); Dep't of Game & Fish v. Rawlings, 2019-NMCA-018, ¶ 6, 436 P.3d 741 ("We consider all parts of the statute together, reading the statute in its entirety and construing each part in connection with every other part to produce a harmonious whole." (alterations, internal quotation marks, and citation omitted)).

{¶7} Conditional use permits for both "[e]ssential public utilities distribution structures," and "[c]ommunication structures and facilities" are allowed in the RCP zone district. Torrance County, N.M., Zoning Ordinance app. at 2, 3. Only conditional use permits for "[e]ssential public utilities distribution structures" are allowed in the VCP zone district, however. Torrance County, N.M., Zoning Ordinance app. at 3. Stated another way, conditional use permits are not allowed in the VCP zone district for "communication structures and facilities." Torrance County, N.M., Zoning Ordinance app. at 2.

A. The Board's Finding That the Application Seeks a Location in the VCP Zone District Is Not Supported by Substantial Evidence

{¶8} We first address the Board's assertion that the Application seeks to locate the telecommunication tower in the RCP zone district, rather than the VCP zone district. We construe the Board's argument to be that the Board's finding that the Application contemplates a location in the VCP zone district is not supported by substantial evidence. We agree.

{¶9} When we review for substantial evidence, "we will not substitute our judgment for that of the agency; although the evidence may support inconsistent findings, we will not disturb the agency's finding if supported by substantial evidence on the record as a whole." Rodriguez v. Permian Drilling Corp., 2011-NMSC-032, ¶ 7, 150 N.M. 164, 258 P.3d 443 (alteration, omission, internal quotation marks, and citation omitted). "Under whole record review, evidence is viewed in a light most favorable to upholding the agency's determination, but favorable evidence is not viewed in a vacuum that disregards contravening evidence." Bass Enters. Prod. Co. v. Mosaic Potash Carlsbad Inc., 2010-NMCA-065, ¶ 28, 148 N.M. 516, 238 P.3d 885. "The reviewing court needs to find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency." Snyder Ranches, Inc. v. Oil Conservation Comm'n, 1990-NMSC-090, ¶ 5, 110 N.M. 637, 798 P.2d 587.

{¶10} Petitioner does not challenge the finding that the parcel of land at issue is in the VCP zone district. In response to the Board's argument that the location sought for the telecommunication tower is in the RCP zone district Petitioner argues that the Board "forfeited any right to challenge its own finding" because the Board made the...