Citizens for Incorporation, Inc. v. Board of County Com'rs of County of Bernalillo

• Decision Date: 02 June 1993
• Docket Number: No. 13061,13061
• Citation: 115 N.M. 710,858 P.2d 86,1993 NMCA 69
• Parties: CITIZENS FOR INCORPORATION, INC., and Jean Rodgers, Petitioners-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO, Respondents-Appellees, and George Walker, Robert Si Nanninga, and Clara Louise Nanninga, Intervenors-Appellees.
• Court: Court of Appeals of New Mexico

Page 86

858 P.2d 86

115 N.M. 710

CITIZENS FOR INCORPORATION, INC., and Jean Rodgers Petitioners-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BERNALILLO Respondents-Appellees and George Walker, Robert Si Nanninga, and Clara Louise Nanninga, Intervenors-Appellees.

No. 13061.

Court of Appeals of New Mexico.

June 2, 1993.

Certiorari Denied July 20, 1993.

[115 N.M. 711] Anthony J. Ayala, Albuquerque, for petitioners-appellants.

William J. Darling, Margaret P. Armijo, William J. Darling & Associates, P.A., Albuquerque, for respondents-appellees.

K. Lee Peifer, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg,

[115 N.M. 712] P.A., Albuquerque, for intervenors-appellees

OPINION

APODACA, Judge.

Petitioners Citizens for Incorporation, Inc., and Jean Rodgers (collectively referred to as Petitioners) appeal a judgment of the district court affirming the decision of the Bernalillo County Board of Commissioners (Board) to refuse Petitioners' request that an incorporation election be held. Petitioners raised three issues on appeal, two of which we have consolidated as one issue: whether the district court (1) correctly upheld the Board's decision to deny Petitioners' request for an election on incorporation, and (2) properly dismissed Petitioners' claim that they should be reimbursed for the cost of conducting a census of the area proposed for incorporation.

Because the issues on appeal raised the question of the appropriate standard this Court should use in reviewing the Board's action, we requested the parties to provide supplemental briefs addressing this standard of review question. Having considered the supplemental briefs, we now determine that the focus of our review should be, not on the Board's decision, but on the district court's decision and findings.

We hold that the district court properly (1) upheld the Board's decision because Petitioners' petition did not comply with the pertinent statutory requirement, and (2) denied Petitioners' claim for reimbursement because Petitioners were required to provide the funds for a census. We thus affirm the district court's decision. We deny Petitioners' motion contained in their supplemental brief for permission to file an additional brief.

BACKGROUND

In 1989, Petitioners filed with the Board a petition and map for incorporation of an area known as Albuquerque's "South Valley." The petition stated:

WE the undersigned, as qualified electors who have resided within the territory described below for a period of six months or more prior to signing this petition, declare our intent to incorporate all of the unincorporated territory not presently in the City of Albuquerque and described as follows:

Beginning at the southwest corner of the sect. 26, T1ON, R2E, then north along section line to the Albuquerque City Limits at Bridge Blvd. SW, then east on Bridge Blvd. to the point where the Albuquerque City Limits turn north, then north and east following the city limits to the Rio Grande, then south following City Limits along the Rio Grande, then east across Rio Grande following City Limits to west right-of-way of I-25, then south along I-25 to its intersection with Broadway SW then south to the north boundary of the Isleta Indian Reservation, then west along north boundary of Isleta Indian Reservation to west side of sect. 3, T8N, R2E, then north on sect. line to north boundary of the Pajarito Land Grant, then east on Land Grant boundary to west side of sect. 16, T9N, R2E, then north to northwest corner of sect. 16, then east to northeast corner of sect. 16, then north along section line to the Albuquerque City Limits at Flora Vista SW, then east along Albuquerque City Limits to Coors Rd. SW, then south following Albuquerque City Limits to point of beginning.

This incorporated area shall be known as Las Plazas del Valle in accordance with the attached map.

PRINTED NAME SIGNATURE STREET ADDRESS

(as it appears on voter registration records)

[Signature lines deleted.]

A map of the area intended to be incorporated was printed in the back of the petition. The petition was signed by 1,863 people; the Bernalillo County Clerk certified that 883 of the signatures were valid.

On April 25, 1989, the Board voted to require a census of the area proposed for incorporation. On May 9, 1989, Petitioners filed their original complaint in the district court, appealing the Board's decision to require a census. Nonetheless, a census paid for by Petitioners was performed and the results submitted to the Board on September 19, 1989. By letter dated October 3, 1989, the district court requested the parties to address the issue of whether the controversy was now moot because a census had been taken. The record does not reflect the parties' response to this letter. On October 4, 1989, after discussion, the Board voted not to allow an election on the issue of incorporation on the basis that the petition for incorporation did not meet the statutory requirements for an incorporation petition. See NMSA 1978, Sec. 3-2-1 (Repl.Pamp.1987). On October 12, 1989, Petitioners moved to amend their complaint. The amended complaint requested a declaration that Petitioners were not required to conduct a census, a refund of the funds paid to conduct the census, and a court order that the election be conducted. On October 27, 1989, Petitioners filed in district court a second notice of appeal and petition for review of the Board's decision. George Walker, Clara Louise Nanninga, and Robert Si Nanninga (collectively referred to as Intervenors) moved to intervene in the second action, requesting a declaratory judgment from the district court that the relevant statutes were unconstitutional. This motion to intervene was granted and the two actions were consolidated.

Petitioners and Intervenors later filed separate motions for summary judgment, which were consolidated. The hearing on the consolidated motions was transmuted into a hearing on the merits when the district court and counsel for the parties agreed that there were no disputed facts and that an evidentiary hearing was unnecessary. Subsequently, the district court entered a final judgment dismissing Petitioners' complaint and upholding the validity of the Board's action. This appeal followed.

DISCUSSION

I. Standard of Review.

Because the issue of what standard of review should be applied to a board of county commissioners' decision to deny a petition to hold an election on incorporation was one of first impression in New Mexico, we requested the parties to provide supplemental briefs addressing this issue.

In its supplemental brief, the Board argues that the appropriate standard of review is the deferential standard applied to legislative actions because actions involving the creation and extension of municipal boundaries are functions of the legislative power. See Torres v. Village of Capitan, 92 N.M. 64, 69, 582 P.2d 1277, 1282 (1978). Additionally, it argues that the type of decision made here falls squarely within the definition of a legislative decision as stated in Dugger v. City of Santa Fe, 114 N.M. 47, 51, 834 P.2d 424, 428 (Ct.App.), writ quashed, 113 N.M. 744, 832 P.2d 1223 (1992). It further claims that, whichever standard of review is applied, the Board's decision should be upheld.

Petitioners argue in their supplemental brief that, although a legislative standard apparently applies because incorporation of municipalities, like annexation, lies within the authority of the legislature, see Leavell v. Town of Texico, 63 N.M. 233, 235, 316 P.2d 247, 248 (1957), the Board's duty under Section 3-2-1 is quasi-judicial, see Dugger, 114 N.M. at 50, 834 P.2d at 427 (describing the trappings often associated with quasi-judicial action), and thus the administrative standard of review applies. See Perkins v. Department of Human Servs., 106 N.M. 651, 655, 748 P.2d 24, 28 (Ct.App.1987). Petitioners likewise argue that, whichever standard is applied, the Board's refusal to call an election was improper.

The Board's decision is not clearly legislative or administrative in nature. Although the Board is clearly a legislative body and generally a decision regarding municipal boundaries is legislative in nature, see, e.g., Torres, 92 N.M. at 69, 582 P.2d at 1282, here the statute requires the Board not to determine whether or not to incorporate but, rather, to review a petition and determine if certain statutory criteria have been met before ordering an election. See Dugger, 114 N.M. at 50, 834 P.2d at 427. However, we find it unnecessary to determine the appropriate standard of review of the Board's decision in this case because we agree with Intervenors' supplemental brief that the focus of our appellate review should be on the district court's decision, not on that of the Board.

The district court apparently applied the arbitrary-and-capricious standard of review to the Board's action. Because we determine that the district court's findings that the petition did not comply with the statutory requirements was supported by substantial evidence, the Board's decision would be upheld under either standard of review. Compare id. at 53, 834 P.2d at 430 (discussing deferential "reasonableness" standard of review as applied to city council's decision to deny petition for annexation) with Mutz v. Municipal Boundary Comm'n, 101 N.M. 694, 697, 688 P.2d 12, 15 (1984) (applying administrative standard of review to decision of the Boundary Commission). Under either standard, the court does not make an independent inquiry into the wisdom of the decision or substitute its judgment for that of the decision-maker below. Dugger, 114 N.M. at 53, 834 P.2d at 430; Mutz, 101 N.M. at 697, 688 P.2d at 15. Therefore, under the facts of this case, we assume, but do not decide, that reviewing the Board's decision under the standard of Perkins was proper.

Petitioners argue that the district court exceeded its jurisdiction because it...