CERRILLOS GRAVEL v. BOARD OF COUNTY COM'RS

• Decision Date: 25 May 2004
• Docket Number: No. 23, No. 630, No. 634.
• Citation: 136 N.M. 247,96 P.3d 1167
• Parties: CERRILLOS GRAVEL PRODUCTS, INC., Brad Aitken, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Defendant-Appellant, and Rural Conservation Alliance, Intervenor-Appellant.
• Court: Court of Appeals of New Mexico

96 P.3d 1167

136 N.M. 247

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

Nos. 23,630, 23,634.

Court of Appeals of New Mexico.

May 25, 2004.

Certiorari Granted, August 10, 2004.

Joseph Manges, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, for Plaintiffs-Appellees.

Monica Ontiveros, County of Santa Fe, Santa Fe, Mark A. Basham, Basham & Basham, P.C., Santa Fe, for Defendant-Appellee.

Mary E. Humphrey, El Prado, for Intervenor-Appellant.

Certiorari Granted, No. 28,780, August 10, 2004.

OPINION

ALARID, J.

{1} In this case, we consider whether the Santa Fe County Board of County Commissioners (Board or the County) had the authority to suspend or revoke a mining permit it issued to Cerrillos Gravel Products, Inc. (Cerrillos Gravel). The district court ruled that the County had no authority to suspend or revoke a permit, and that any action to do so had to be filed in district court. The County appealed. We hold that, under the circumstances here, the County had the authority to suspend the mining permit, and reverse and remand to the district court.

BACKGROUND

{2} The record reflects that the mining company and the County have been at odds for many years. In any event, they agree that negotiations led to a 1996 settlement under which Cerrillos Gravel received a mining permit, on July 10, 1997, with twenty-four conditions. Cerrillos Gravel complied with some conditions, but, according to the County, failed to comply with others. In January 2000, the County issued a stop work order and notified Cerrillos Gravel that its permit had been revoked. The matter was set for hearing before the Board. Before the Board could meet, the parties once again engaged in negotiations designed to allow Cerrillos Gravel to continue its operations in a way that was acceptable to the County. These negotiations resulted in a memorandum of understanding. However, when the memorandum of understanding was presented to the Board, it changed some of the provisions. Cerrillos Gravel appeared without its attorney, but a representative of the company said he thought the company would accept the changes. Cerrillos Gravel ultimately did not accept the changes, and the Board suspended the permit until certain conditions were met.

{3} Cerrillos Gravel filed an appeal in district court pursuant to Rule 1-074 NMRA 2004. During that appeal, Cerrillos Gravel persuaded the district court that the Board's suspension of its permit was invalid because the Board did not have authority to do so. The County and the Intervenor filed petitions for certiorari, which we granted.

DISCUSSION

A. Standard of Review

{4} Because this appeal involves statutory construction, our review is de novo. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066.

B. County Zoning Authority

1. Statutes

{5} Counties are creatures of statute, and have only the power granted by the Legislature, along with those powers necessarily implied to implement the express powers. See El Dorado at Santa Fe, Inc. v. Bd. of County Comm'rs, 89 N.M. 313, 319, 551 P.2d 1360, 1366 (1976)

. A county's "power to zone can only be exercised pursuant to statutory authority and in conformity with a lawfully adopted ordinance." (citations omitted). See State ex rel. Vaughn v. Bernalillo County Bd. of County Comm'rs, 113 N.M. 347, 349, 825 P.2d 1257, 1259 (Ct.App.1991). Zoning statutes and ordinances are strictly construed. Id.

{6} Several statutes are relevant to a county's authority to revoke or suspend a mining permit. NMSA 1978, § 3-21-6(A)(1) (1981) 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 districts are . . . enforced[.]"

NMSA 1978, § 3-21-10(B) (1965) provides:

B. [I]f 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 premises.

{7} NMSA 1978, Section 3-21-13(B), (C) (1965), entitled "Zoning enforcement by counties," 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) and imprisonment for ninety days, or both." Section 3-21-13(C) provides that the "district attorney and sheriff shall enforce these ordinances." Section 3-21-13(B) is similar to NMSA 1978, § 4-37-3(A) (1993) providing that county ordinances "may be enforced by prosecution for violations of those ordinances in any court of competent jurisdiction," and that penalties may not exceed $300 or ninety days imprisonment, or both. Id.

{8} Consequently, we are faced with several statutes that present different interpretations of a county's power in this context. Sections 3-21-6 and -10(B) grant counties broad power to enact ordinances to determine how their ordinances are enforced, and to "institute any appropriate action or proceedings" to prevent and abate violations.

{9} Against these two broad statutes are two statutes providing that violations of county ordinances may be prosecuted in district court by the district attorney or sheriff, and limit the penalties that may be imposed to a nominal fine of $300, and imprisonment not to exceed ninety days, or both. See § 3-21-13; § 4-37-3(A). Cerrillos Gravel relies heavily on these two statutes to support its position that district court is the only permissible venue, arguing that these statutes are more specific.

{10} When multiple statutes cover the same subject matter we attempt to harmonize them if possible. See High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599

; State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575-76, 855 P.2d 562, 564-65 (1993). It is possible to do so here. The two statutes on which Cerrillos Gravel relies both provide that violations of ordinances "may be enforced by prosecution" in "court." § 4-37-3(A); § 3-21-13(B). The word "may" is permissive, and is not the equivalent of "shall," which is mandatory. See Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 442-43, 872 P.2d 859, 860-61 (1994) (stating canon of construction that "shall" is mandatory and "may" is permissive). We believe the Legislature's use of the word "may" is carefully chosen to express the intention that a quasi-criminal prosecution, with attendant criminal fines and imprisonment, is one option available to a county, in addition to other remedies. See City of Santa Fe v. Baker, 95 N.M. 238, 241, 620 P.2d 892, 895 (Ct.App.1980) (noting that "[p]rosecution for violation of a municipal ordinance is a quasi-criminal proceeding"). Sections 3-21-13(B) and 4-37-3(A) do nothing more than recognize that, as a quasi-criminal prosecution, court would be the appropriate venue, and the district attorney and the sheriff would be the appropriate prosecutorial entity. Reading the statutes in this way gives the proper effect to the words "may," and "shall," in Section 3-21-13, and harmonizes Sections 3-21-6, -10, and -13 in a way that gives effect to each one.

{11} But we disagree that Sections 4-37-3 and 3-21-13 provide the only remedy. It would be unreasonable to conclude that a county, faced with illegal land use, including violations that might endanger the health and safety of the public, would be limited solely to seeking criminal prosecution in court with a limitation of a nominal fine ($300), or ninety days imprisonment, or both. Such a limitation would allow the illegal use to continue, even at risk to the health and safety of the public. We have not recognized such a strict limitation on the remedy, and have recognized that, in addition to criminal prosecution, a county has the option to pursue an injunction, or file an abatement action, in district court. See Vaughn, 113 N.M. at 351, 825 P.2d at 1261 (noting that, when confronted with violations of zoning laws, a board may seek an injunction, file an abatement action, or pursue penalties in quasi-criminal proceedings).

2. Ordinances

{12} Cerrillos Gravel persuaded the district court that Vaughn determined the result here. There, we held that the Bernalillo County Board of County Commissioners had no authority to revoke a special use permit. Id. at 351, 825 P.2d at 1259. Our decision in Vaughn was based on the rationale that "nothing in the applicable statute or ordinance specifically allows for the cancellation" of special use permits. Id. at 350, 825 P.2d at 1260. In Vaughn we carefully scrutinized the applicable county ordinances for authorization to revoke a special use permit, and found none. Id. at 349-50, 825 P.2d at 1259-60.

{13} However, in contrast to Vaughn, the Land Development Code (the Code), Santa Fe County, N.M., Ordinance 1996-10 (1996), specifically allows for revocation of a mining permit. Section 1.11(A) of the Code provides that failure to comply with the Code shall subject a mining operation to penalties, and expressly states that "[p]enalties may also include suspension or revocation of the . . . mining land use permit." It further provides that "[t]he penalties in this paragraph will be imposed only after a hearing before the board." [Id.] Consequently, this case is distinguishable from Vaughn because Santa Fe County has...