Brazos Land, Inc. v. Board of County Com'rs of Rio Arriba County

• Decision Date: 28 January 1993
• Docket Number: No. 12340,12340
• Citation: 115 N.M. 168,1993 NMCA 13,848 P.2d 1095
• Parties: BRAZOS LAND, INC., Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF RIO ARRIBA COUNTY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1095

848 P.2d 1095

115 N.M. 168

BRAZOS LAND, INC., Plaintiff-Appellant, v.BOARD OF COUNTY COMMISSIONERS OF RIO ARRIBA COUNTYDefendant-Appellee.

No. 12340.

Court of Appeals of New Mexico.

Jan. 28, 1993.

[115 N.M. 169] William D. Winter, Jones, Snead, Wertheim, Rodriguez & Wentworth, P.A., Santa Fe, for plaintiff-appellant.

Anita P. Miller, Albuquerque, for defendant-appellee.

OPINION

CHAVEZ, Judge.

Appellant, Brazos Land, Inc.(Brazos), a subdivider, appeals the decision of the district court of Rio Arriba County which upheld the disapproval of their subdivision plat by appellee, Board of County Commissioners of Rio Arriba County(Board).

Two issues are presented:

1.Whether New Mexico Constitution article IV, section 34 prevented application of a later enacted ordinance to Brazos's subdivision plat;

2.Whether Brazos is entitled to automatic plat approval pursuant to NMSA 1978, Section 47-6-22(C)(Repl.Pamp.1982).

We affirm.

Facts

Brazos submitted its application for preliminary plat approval to the Board on June 4, 1985.The subdivision, "Lakes on the Chama," was, at that time, subject to regulations revised and promulgated as of October 8, 1982(1982 Regulations).

The Board, in considering subdivision applications, is governed by the New Mexico Subdivision Act, NMSA 1978, Secs. 47-6-1 to -29 (Repl.Pamp.1982)(the Act).The subdivision type determines which procedures will govern the approval process.Here, the subdivision was designated a type-two subdivision, as it contained ninety-nine lots with a maximum of 2.8 acres.Sec. 47-6-2(M).

On July 8, 1985, the State Engineer's Office rendered an adverse opinion finding that Brazos's water proposals did not conform with county regulations.The relevant statute states that the Board then "shall hold a public hearing devoted solely to determining whether or not the subdivider's water proposals conform with county regulations."Sec. 47-6-11(H)(3).Within thirty days of the hearing, the "[s]ubdivision plats submitted to the board of county commissioners for approval shall be approved or disapproved...."Sec. 47-6-22(B)(3);see alsoSec. 47-6-14(E).The Board neither held a public hearing nor rendered a decision on Brazos's plat.Instead, on October 5, 1985, the Board enacted a moratorium on all subdivision approvals for which preliminary plat approval had not been received prior to the date the moratorium went into effect.Initially, the moratorium was to run until March 31, 1986, but it was later extended until June 15, 1986, in order to allow the Board time to develop new, more restrictive county subdivision regulations, which addressed the issues of density controls and groundwater contamination.

On April 25, 1986, Brazos notified the Attorney General in writing that the Board had failed to act on its plat.Brazos relied on Section 47-6-22(C) in giving notice.That section provides:

Except as provided in Subsection G of Section 47-6-11 NMSA 1978, if the board of county commissioners does not act upon the plat within the required period of time, the plat is deemed to be approved thirty days after the subdivider gives the attorney general written notice of the board of county commissioners' failure to act.If the board of county commissioners fails to approve or reject the final plat within the thirty days after notice to the attorney general, upon demand, the board of county commissioners shall issue a certificate stating that the plat has been approved.

On May 13, 1986, the Board promulgated new subdivision regulations (1986 Regulations), and the moratorium was subsequently lifted on June 15, 1986.A public hearing was held on Brazos's plat application on August 5, 1986.The Board then applied the 1986 Regulations to the plat and subsequently denied plat approval on September 17, 1986.

Discussion

Application of N.M. Const. art. IV, Sec. 34

Brazos contends that New Mexico Constitution article IV, section 34 requires the Board to apply its 1982 Regulations because they were the regulations that were in effect when Brazos submitted its subdivision application, rather than the amended 1986 Regulations.This section of the constitution provides that "[n]o act of the Legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case."

Brazos contends that the submission of a subdivision plat application constitutes a pending case and therefore invokes article IV, section 34 of the New Mexico Constitution.In support of this contention, Brazos relies on State ex rel. Edwards v. City of Clovis, 94 N.M. 136, 607 P.2d 1154(1980);Phelps Dodge Corp. v. Revenue Division of the Department of Taxation & Revenue, 103 N.M. 20, 702 P.2d 10(Ct.App.1985);andChilili Corp. Ass'n v. Sundance Mountain Ranches, Inc.(In re Sundance Mountain Ranches, Inc.), 107 N.M. 192, 754 P.2d 1211(Ct.App.1988).

We find persuasive the reasoning followed by the court in Sundance Mountain Ranches, where a county commission had approved a subdivision and adopted new regulations while a district court case over Sundance's right to subdivide was pending.The court applied a vested rights analysis, even though a pending case existed, and declined to retroactively apply the new regulations.The court determined that the property owner had reasonably relied on the county's grant of approval and had incurred extensive obligations in reliance upon the approval.In reaching this decision, the court in Sundance Mountain Ranchesrelied onEl Dorado at Santa Fe, Inc. v. Board of County Comm'rs, 89 N.M. 313, 551 P.2d 1360(1976)(governmental body may be estopped to enforce newly adopted regulations to a proposed subdivision, where property owner is shown to have reasonably relied on county's grant of approval and has incurred extensive obligations in reliance thereon);andAragon & McCoy v. Albuquerque National Bank, 99 N.M. 420, 659 P.2d 306(1983)(property owners generally have no vested rights in a specific zoning classification).The court in Sundance Mountain Ranches relied in dicta only on the Edwards article IV, section 34 analysis of pending cases.

In other jurisdictions, the determination of whether a new zoning ordinance will be applied retroactively is analyzed under a vested rights approach.1 Robert M. Anderson, American Law of ZoningSec. 6.06 (3d ed. 1986);Raley v. California Tahoe Regional Planning Agency, 68 Cal.App.3d 965, 137 Cal.Rptr. 699(1977).There are two prongs that must be met for a vested right to exist.First there must be approval by the regulatory body, and second, there must be a substantial change in position in reliance thereon.Id.Here, Brazos received no assurance to expect approval and no actual approval of the application.Nor was there any substantial reliance or change in position.Therefore, Brazos had no vested right and is subject to the Board's 1986 Regulations.

The definition of "pending" in the context of the purpose behind article IV, section 34 was clearly set forth in the seminal case of Stockard v. Hamilton, 25 N.M. 240, 245, 180 P. 294, 295(1919):

The evident intention of the Constitution is to prevent legislation interference with matters of evidence and procedure in cases that are in the process or course of litigation in the various courts of the state, and which have not been concluded, finished, or determined by a final judgment.This provision of the Constitution was inserted for the purpose of curing a well-known method, too often used in the days when New Mexico was under a territorial form of government, to win cases in the courts by legislation which changed the rules of evidence and procedure in cases which were then being adjudicated by the various courts of the state.

In light of the purpose of article IV, section 34, which is to prevent legislative interference with adjudication of pending cases, the following language in Edwards is unnecessarily broad: "[A] City cannot, by enacting an ordinance, affect or change what would be the result of a pending action before the City Council or Commission or the result of a pending case in court, based upon valid ordinances existing at the time of the application or suit."Id., 94 N.M. at 138, 607 P.2d at 1156.Furthermore, Edwards involved a writ of mandamus which was a pending case within the Stockard definition because it was in the course of litigation, in the district court, and was not concluded, finished, or determined by a final judgment.Here, there was no litigation, merely an application for preliminary plat approval.Therefore, we are not persuaded that Edwards is applicable.SeeState v. Scott, 90 N.M. 256, 561 P.2d 1349(Ct.App.1977)(court of appeals can, consistently with Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778(1973), consider whether Supreme Court precedent is applicable), overruled on other grounds, State v. Reynolds, 98 N.M. 527, 650 P.2d 811(1982).

Brazos also cites Phelps Dodge Corp. for the proposition that article IV, section 34 precludes retroactive application of the 1986 Regulations.Phelps Dodge Corp. resolved an administrative tax refund proceeding wherein a taxpayer filed a request for a refund of taxes previously paid.The court found the proceeding in Phelps Dodge Corp. to fall within the article IV, section 34 definition of "pending case" because (1) the statutorily mandated review process required the plaintiff to first make this formal request for relief from government action to the Director of Bureau of Revenue; and (2)the plaintiff had to exhaust the administrative remedies before invoking the jurisdiction of the district court.Id., 103 N.M. at 23, 702 P.2d at 13.While the taxpayer's request was pending, the legislature enacted a bill which affected the outcome of the taxpayer's request.The administrative proceeding in Phelps Dodge Corp. was tantamount to the legislature trying to adjudicate a particular case to directly interfere with the outcome....