Bogan v. Sandoval County Planning and Zoning Com'n
| Decision Date | 01 December 1994 |
| Docket Number | No. 14985,14985 |
| Citation | 119 N.M. 334,890 P.2d 395,1994 NMCA 157 |
| Parties | Robert G. BOGAN, Bennie Lovato, Richard Rivera, and Ramon Baldonado, Petitioners-Appellees/Cross-Appellants, v. SANDOVAL COUNTY PLANNING AND ZONING COMMISSION, Dan Delgado, Toni Popper, Robin Reiger, Don Doench, Willie Escarcida, and Jenny Sandoval, in their official capacity as members of the Sandoval County Planning and Zoning Commission, the Board of County Commissioners of Sandoval County, Edmund J. Lang, Patricia Thomas, Ubaldo Lovato, Thomas Swisstack, and Patrick Baca, in their official capacity as members of the Board of County Commissioners of Sandoval County, Respondents-Appellees, and National Advertising Company, a Delaware corporation, New Mexico State Highway and Transportation Department, Alfred L. Baca, Andre Baca, and Margaret A. Cassidy-Baca, Respondents-Appellants/Cross-Appellees. |
| Court | Court of Appeals of New Mexico |
Luis G. Stelzner and Philip P. Larragoite, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, for petitioner-appellees/cross-appellants.
W. Daniel Schneider, Schneider & Schneider, Albuquerque, for respondents-appellants/cross-appellees Nat. Advertising Co. and Bacas.
Peter Cubra and Duff H. Westbrook, Duff H. Westbrook, P.C., Albuquerque, for respondents-appellants/cross-appellees Sandoval County.
All parties have appealed from a district court judgment that reversed in part and affirmed in part a decision by the Sandoval County Planning and Zoning Commission (PZC). The PZC decision authorized the placement of large, illuminated billboards on land owned by Andre Baca and Margaret A. Cassidy-Baca (the Bacas) on both sides of I-25 near Algodones. On petition by Robert G. Bogan, Bennie Lovato, Richard Rivera, and Ramon Baldonado (Petitioners), all of whom also own land near Algodones, the district court dismissed the claims of all Petitioners other than Bogan, ordered the billboards on the west side of the freeway removed, allowed those on the east side to remain, and awarded Bogan one-quarter of the attorney's fees Petitioners requested.
Respondents National Advertising Co. (National) and the Bacas raise the following issues on appeal: (1) lack of subject matter jurisdiction in the district court; (2) failure to exhaust administrative remedies; (3) lack of standing; (4) laches; (5) error in failing to remand issues for determination by the zoning authority; (6) error in determining that the billboards were not a permissive use under the ordinance; and (7) error in holding that the zoning ordinance was valid. In their cross-appeal, Bogan and the other Petitioners raise the following issues: (1) abuse of discretion in not awarding all the requested attorney's fees; (2) error in finding that Petitioners Lovato, Rivera, and Baldonado received adequate notice of the PZC decision; (3) error in dismissing any of the parties and finding that the billboards east of I-25 need not be removed after having determined that the County acted ultra vires; (4) error in allowing the billboards east of I-25 to remain after having found that all of the petitioners had standing; and (5) error in not determining that PZC decisions must be filed with the county clerk.
We affirm on each issue other than the first issue raised on cross-appeal, on which we conditionally affirm.
On January 18, 1991, National Advertising Company (National) entered into a lease with the Bacas that allowed National to place "six off premise signs" along I-25 on the Bacas' property in Sandoval County. The billboards were to be situated in Algodones with four of the billboards west of I-25 and two east of I-25.
The RD District is one of six zoning districts designated in the "Ordinance Establishing Comprehensive Zoning Regulations and Zoning Maps for Sandoval County, New Mexico" (ordinance). The property at the billboard sites is zoned "RD-Rural Development District." The two types of use allowed in the RD district are permissive and conditional. There are three categories of permissive use: singular dwelling units; business, service, and commercial establishments; and accessory uses and structures. There are three categories of restricted conditional use: multiple dwelling units; limited industrial activities; and salvage yards. The ordinance states that "[a]ny use not designated as permissive or conditional within a particular zone district is prohibited from that zone district."
National applied to the PZC requesting permits for the billboards as a permissive use under the ordinance. In response, the County Attorney took the position that such use was not permissive, and on May 2, 1991, National applied for a variance. Immediately prior to the scheduled hearing concerning National's application, the county planning department suggested that the request be changed from a variance to conditional use. National later amended their request to reflect that change.
Section 24(B) of the ordinance provides as follows:
B. Application. Any request for an amendment to this Ordinance shall be submitted with filing fee to the Zoning Officer on a prescribed application form obtainable from the Zoning Officer. The Zoning Officer shall transmit the application and any supplementary information to the Zoning Commission for review and consideration at their next regularly scheduled meeting. The Zoning Commission shall prepare and transmit a recommendation in writing, to the County Board within 7 days after their review of the proposed amendment is completed. To the extent possible, all abutting property owners of any land proposed for a zone change shall be notified of the Zoning Commission meeting at which a zone change will be reviewed for recommendation to the County Board.
The parties stipulated at trial that Petitioners Lovato, Rivera, and Baldonado are landowners with property abutting the Baca parcel on the west side of I-25 on which four billboards were constructed. None of the Petitioners own land abutting the east parcel on which billboards are located. Whether Bogan is an owner of land abutting the west parcel within the meaning of the ordinance depends on an unrecorded deed.
On November 7, 1989, Defendant Andre Baca had executed a quit-claim deed in favor of Alfred Baca conveying all of Andre's interest in a six-acre parcel that is situated between Bogan's property and the west parcel on which four of the billboards are located. However, the deed was never recorded, and the county tax assessor's map in effect in the spring of 1991 did not indicate that Alfred Baca had acquired the six-acre parcel.
On May 15, 1991, Roy E. Slezak (Slezak), the planning and zoning administrator, sent certified letters to Petitioners Lovato, Rivera, and Baldonado notifying them that the PZC would hold a hearing regarding a request for a variance by National. He did not notify Bogan. The record indicates that the County intended that the hearing be public, and thus that it occurred at a regularly-scheduled PZC meeting. National's May 2 application bears a legend that "[t]his item is scheduled to be heard at a meeting of the Sandoval County Planning & Zoning Commission on 6-12-91 time 7:00 P.M." At the bottom of National's application there is a typewritten note: "A copy of the notice of public hearing should be filed with each application." On June 12, 1991, the PZC considered and granted the amended application for conditional use for the six billboards which National began to erect in April 1992.
Petitioners Lovato, Rivera, and Baldonado neither attended the hearing nor made any inquiry regarding the letters they had received. The decision granting the permit was filed with Slezak, as was the policy and practice of Sandoval County.
The ordinance requires that all appeals of zoning decisions to the Board as zoning authority be made within thirty days of the decision by filling out prescribed forms and tendering a specified fee. No Petitioner appealed within thirty days of the date the PZC decision was filed with Slezak.
Petitioners became aware of the construction of the six billboards on or about April 15, 1992. On May 6, 1992, Bogan sent a letter to the Board informing them that he had not received written notice of the June 12, 1991 hearing and requesting a hearing on the billboard construction. Bogan's letter was not on an official form, was not accompanied by a filing fee, and was not filed within thirty days of the PZC's decision. The Board took no action in respect to Bogan's letter. Petitioners did not notify either the Bacas or National of their objections to the construction of the billboards prior to filing suit on May 21, 1992.
The district court initially concluded that all Petitioners had standing because they were aggrieved persons, and that standing encompassed the two billboards on the parcel east of I-25. However, the court further concluded that Lovato, Rivera and Baldonado lacked standing because they had received sufficient notice, had failed to exhaust their administrative remedies, and were time-barred. The district court also found that Bogan had not received proper notice of the hearing before the PZC on a special use permit requested by Respondents and that his claim was not barred.
Petitioners then filed an "Application for Attorney Fees and Costs." Following argument on attorney's fees, the district court found that "[t]he County's failure to provide Bogan with adequate notice [was] a denial of due process under the United States Constitution." The court further found that "Bogan is entitled to recovery of reasonable attorney's fees ... as a prevailing party under his procedural due process claim under 28 [sic] U.S.C. Sec. 1983." The court entered specific findings regarding the fees and reduced the amount requested by three-quarters.
On appeal, Respondents contend that the district court erred in entertaining Bogan's claim. On cross-appeal, Petitioners contend that...
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