Cerrillos Gravel v. Board of County Com'Rs

• Decision Date: 18 July 2005
• Docket Number: No. 28,780.,28,780.
• Citation: 117 P.3d 932,2005 NMSC 023
• Parties: CERRILLOS GRAVEL PRODUCTS, INC., and Brad Aitken, Plaintiffs-Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Defendant-Respondent, and Rural Conservation Alliance, Intervenor-Respondent.
• Court: New Mexico Supreme Court

117 P.3d 932

2005 NMSC 023

CERRILLOS GRAVEL PRODUCTS, INC., and Brad Aitken, Plaintiffs-Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Defendant-Respondent, and Rural Conservation Alliance, Intervenor-Respondent.

No. 28,780.

Supreme Court of New Mexico.

July 18, 2005.

Comeau, Maldegen, Templeman & Indall, L.L.P., Joseph E. Manges, Santa Fe, NM, for Petitioners.

Basham & Basham, P.C., Mark A. Basham, Office of the County Attorney, Stephen C. Ross, Santa Fe, NM, for Respondent Board of County Commissioners.

Humphrey & Ode, P.C., Connie Ode, Mary E. Humphrey, El Prado, NM, for Respondent Rural Conservation Alliance.

OPINION

BOSSON, Chief Justice.

{1} The Santa Fe County Board of County Commissioners (Board or County) voted to suspend a mining use permit the County had previously issued to Cerrillos Gravel Products, Inc. (Cerrillos Gravel). On appeal, the district court ruled that the County did not have statutory authority to suspend or revoke the permit in an administrative hearing, but instead had to seek relief in district court, such as filing for an injunction or an abatement. The County appealed to the Court of Appeals, which reversed. We accepted certiorari and now affirm the Court of Appeals, upholding the County's statutory authority to suspend or revoke Cerrillos Gravel's mining use permit for non-compliance.

BACKGROUND

{2} On July 8, 1997, the Board approved a permit, subject to twenty-four conditions, to allow Cerrillos Gravel to mine gravel near Cerrillos, New Mexico. In February 1998, the County notified Cerrillos Gravel that it had failed to comply with some of the permit conditions. In January 2000, the County issued a stop work order and notified Cerrillos Gravel that its permit would be suspended until the mining operation was brought into compliance. The County scheduled a public hearing on the proposed suspension during the Board's regular meeting on January 25, 2000. Before the public hearing, County staff met with representatives of Cerrillos Gravel, including its attorney, to negotiate a plan to allow Cerrillos Gravel to continue its mining operation. The negotiations resulted in a memorandum of understanding, which addressed several of the alleged violations, including mining outside the three-acre permit area and not having sufficient water rights for dust control and reclamation. The agreement was subject to ratification by the Board.

{3} During the public hearing, the Board allowed each speaker two minutes to address the permit. Most witnesses were strongly opposed to Cerrillos Gravel's operations and testified that the mine should be permanently closed due to dust, noise, and traffic. Cerrillos Gravel appeared without its attorney. Its representative, who was given the same two minutes to address the Board as every other speaker, requested that the memorandum of understanding be ratified. After listening to testimony, the Board changed some of the provisions of the agreement, and voted unanimously to suspend the permit unless Cerrillos Gravel agreed to the modified memorandum of understanding. Cerrillos Gravel's representative said he thought the company would accept the changes. The County suspended the permit until the conditions were met.

{4} Instead of accepting the modified memorandum, Cerrillos Gravel appealed the Board's decision to the district court pursuant to Rule 1-074 NMRA 2005. The district court concluded that the Board did not have the statutory authority to suspend or revoke Cerrillos Gravel's mining permit. According to the district court, the County only had the statutory authority to pursue relief in district court such as seeking an injunction or abatement. Because of its ruling on the Board's lack of statutory authority, the district court never determined whether the decision to suspend the permit was supported by substantial evidence.

{5} The Court of Appeals granted certiorari to the County and an intervenor, Rural Conservation Alliance, and reversed. See Cerrillos Gravel Prods., Inc. v. Bd. of County Comm'rs, 2004-NMCA-096, ¶ 1, 136 N.M. 247, 96 P.3d 1167. The Court of Appeals held that the County did have authority to administratively suspend a mining permit and rejected the argument that Cerrillos Gravel has a vested right to operate without complying with the County's conditions. Id. ¶¶ 22-23. The court ordered the case remanded for the district court to consider whether the Board's decision to suspend the permit was supported by the evidence and accompanied by due process. Id. ¶ 24. We granted certiorari. We now address whether the Board had the authority to suspend or revoke Cerrillos Gravel's mining permit.

DISCUSSION

Standard of Review

{6} As a matter of law, we interpret zoning laws de novo, using the same rules of construction that we use for interpreting statutes. Smith v. Bd. of County Comm'rs, 2005-NMSC-012, ¶ 18, 137 N.M. 280, 110 P.3d 496.

The County's Zoning Enforcement Authority

{7} Counties possess those powers expressly granted by the Legislature, as well as those necessarily implied to implement express powers. El Dorado at Santa Fe, Inc. v. Bd. of County Comm'rs, 89 N.M. 313, 317, 551 P.2d 1360, 1364 (1976). A county's authority to zone "can only be exercised pursuant to statutory authority and in conformity with a lawfully adopted ordinance." State ex rel. Vaughn v. Bd. of County Comm'rs, 113 N.M. 347, 349, 825 P.2d 1257, 1259 (Ct.App.1991).

{8} The parties do not dispute that the Legislature delegated to counties the statutory authority to zone. The Zoning Act (Act) affords counties a comprehensive scheme to regulate land use as a way to protect public health, safety, and welfare. See NMSA 1978, §§ 3-21-1 to -14 (1965, as amended through 1995). Pursuant to the Act, counties may adopt zoning ordinances. See § 3-21-2(A). Santa Fe County did so by enacting several land use ordinances now compiled as a unified land development code. See Santa Fe, N.M., Santa Fe County Land Dev.Code, Ordinance 1996-10 (Sept. 10, 1996) (Land Development Code or Code). The Code includes Article XI, "Zoning for Extraction of Construction Materials," which was originally adopted in 1992 to regulate sand and gravel mining. Against this backdrop of general zoning authority, we now examine the statutes and ordinances that address the County's power to enforce that zoning authority.

{9} Three sections of the Zoning Act are relevant to our inquiry. First, Section 3-21-6(A)(1) provides that "[t]he zoning authority within its jurisdiction shall provide by ordinance for the manner in which zoning regulations, restrictions and the boundaries of the district are ... enforced." Next, Section 3-21-10(A) provides that "any ordinance adopted pursuant to [Sections 3-21-1 through 3-21-14] shall be enforced ... as municipal ordinances are enforced." As part of that statute, Section 3-21-10(B) provides:

In addition, if any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure or land is used in violation of Sections 3-21-1 through 3-21-14 NMSA 1978, or any ordinance adopted pursuant to these sections, the zoning authority may institute any appropriate action or proceedings to:

(1) prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use;

(2) restrain, correct or abate the violation;

(3) prevent the occupancy of such building, structure or land; or

(4) prevent any illegal act, conduct, business or use in or about such the premises.

Last, Section 3-21-13(A) provides that counties may enact ordinances to carry out the authority granted to them to regulate building and zoning "the same as a municipality." Section 3-21-13(B) provides that county ordinances "may be enforced by prosecution in the district court of the county. Penalties for violations of these ordinances shall not exceed a fine of three hundred dollars ($300) or imprisonment for ninety days, or both." (Emphasis added.) Section 3-21-13© provides that "[t]he district attorney and sheriff shall enforce these ordinances." (Emphasis added.)

{10} Cerrillos Gravel relies heavily on the latter section of the Act, Section 3-21-13, to support its argument that the district court is the exclusive venue in which the County may enforce zoning violations. Despite the word "may" first used in Section 3-21-13(B), Cerrillos Gravel argues that the use of "shall" in Sections 31-21-13(B) and -©, with respect to fines and prosecution by the district attorney and sheriff, mandates enforcement by direct action in court and not by suspension or revocation of a permit. As Cerrillos Gravel notes, Section 3-21-13(B) is similar to NMSA 1978, § 4-37-3(A) (1993), which addresses the general authority of counties to enforce county ordinances by taking a direct action in court. Section 4-37-3(A) provides that "[c]ounty ordinances may be enforced by prosecution for violations of those ordinances in any court of competent jurisdiction," and that penalties may not exceed three hundred dollars ($300) or ninety days imprisonment or both. In addition, Section 3-21-10(A) directs that the Zoning Act, and any ordinances adopted pursuant to the Act, shall be enforced "as municipal ordinances are enforced." Cerrillos Gravel points out that municipal ordinances are enforced by direct action in municipal court. See NMSA 1978, § 3-17-1© (1993). Thus, Cerrillos Gravel contends, the only statutory remedy available to the County to address zoning violations requires a sheriff or district attorney to bring an action in court, and the only possible penalties are a nominal monetary fine and up to ninety days in jail.

{11} We do not agree with Cerrillos Gravel that the County's enforcement authority is dictated exclusively by Section 3-21-13. In addition to Section 3-21-13, Sections 3-21-6 and 3-21-10(B) address the County's power to enforce its zoning regulations. As the Court of Appeals...