City of Albuquerque v. State ex rel. Village of Los Ranchos de Albuquerque

• Decision Date: 31 January 1991
• Docket Number: No. 11688,11688
• Citation: 111 N.M. 608,1991 NMCA 15,808 P.2d 58
• Parties: CITY OF ALBUQUERQUE, Respondent-Appellant, v. STATE of New Mexico, ex rel. VILLAGE OF LOS RANCHOS de ALBUQUERQUE, et al., Petitioners-Appellees.
• Court: Court of Appeals of New Mexico

Page 58

808 P.2d 58

111 N.M. 608

CITY OF ALBUQUERQUE, Respondent-Appellant, v. STATE of New Mexico, ex rel. VILLAGE OF LOS RANCHOS de ALBUQUERQUE, et al., Petitioners-Appellees.

No. 11688.

Court of Appeals of New Mexico.

Jan. 31, 1991.

Certiorari Denied March 20, 1991.

[111 N.M. 609] William G. Walker, Walker & van Heijenoort, Hector & Associates, P.A., Thomas L. Popejoy, Popejoy, Leach, Green & Melkus, P.C., Albuquerque, for petitioners-appellees.

William C. Schaab, James P. Fitzgerald, Rodey, Dickason, Sloan, Akin & Robb, P.A., David Campbell, City Atty., Edward R. Pearson, Asst. City Atty., Albuquerque, for respondent-appellant.

Hal Stratton, Atty. Gen., Elizabeth Glenn, Asst. Atty. Gen., Santa Fe, amicus curiae-State Atty. Gen.

Hollis Ann Weisz, Nordhaus, Haltom, Taylor, Tardash & Frye, Santa Fe, David Doheny, Gen. Counsel, Elizabeth S. Merritt, Andrea C. Ferster, Assts. Gen. Counsel, Washington, D.C., amicus curiae-National Trust for Historic Preservation & Rio Grande Preservation Soc.

OPINION

DONNELLY, Judge.

On rehearing, the previous opinion filed January 8, 1991, is withdrawn and the following is substituted therefor.

The City of Albuquerque (City) pursues this interlocutory appeal from the district court's issuance of a preliminary injunction stopping the City's construction of the Montano River Crossing Project (project). Six issues were certified for review. We have consolidated these questions and discuss (1) whether a municipal highway project duly authorized by law and approved by concerned governmental agencies is subject to abatement as a public nuisance; (2) whether the New Mexico Prehistoric and Historic Sites Preservation Act (PHSPA), NMSA 1978, Secs. 18-8-1 to -8 (Cum.Supp.1989), applies to the project; and (3) whether the district court erred in granting a preliminary injunction. We answer these questions, holding that under the record before us the public works project in question does not constitute a public nuisance per se, that it was error to issue the preliminary injunction, and that the PHSPA does not apply to the stages of the construction project for which planning has been completed and which the City had already obtained necessary state and federal approval to construct prior to the effective date of the PHSPA. In view of these holdings, we do not reach the several issues regarding standing of the petitioners.

Commencing in the 1960's, the City began studies to determine the feasibility of constructing one or more crossings over the Rio Grande to facilitate travel between the east and west portions of the City and surrounding areas. After conducting studies, holding public hearings, and considering various alternatives, the City decided to proceed with construction of the project. The project, designed to be implemented in several stages, included construction of the Montano Bridge, extension of Montano Boulevard west of Rio Grande Boulevard, and the addition of improvements to Montano Boulevard east of Coors and Rio Grande Boulevards.

Prior to commencement of the project, the City applied to and obtained a permit from the United States Army Corps of Engineers to construct a bridge across the Rio Grande. The City also obtained prior approval of the State Highway Department for construction of the project, pursuant to NMSA 1978, Section 3-33-10 (Orig.Pamp.), and secured approval from the State Historic Preservation officer for construction of those portions of the project which traversed or affected areas of prehistoric or historic interest. In furtherance of the project, the City condemned or purchased the necessary right-of-way on the west side of the Rio Grande and a portion of the right-of-way on the east side of the proposed roadway. Additionally, the City undertook to obtain additional land on the east side of the river for widening Montano Boulevard between Rio Grande Boulevard and Second Street.

On April 4, 1989, petitioners, the Village of Los Ranchos de Albuquerque (Village), together with a number of individual citizens, filed suit in the District Court of Bernalillo County, alleging, among other things, that the project constituted a public nuisance and that construction, operation, and maintenance of the project would cause irreparable injury to petitioners, their property, and the surrounding area. Petitioners' suit requested an award of damages and injunctive relief halting the project. The Village, situated outside the northwest boundary of the City, was incorporated in 1958 as a municipal corporation. After the City obtained title to most of the project right-of-way, the Village extended its boundaries to include areas adjacent to portions of the project corridor.

The individual petitioners initiated suit, both in their individual capacities and as private attorneys general acting in the name of the State of New Mexico, pursuant to NMSA 1978, Section 30-8-8 (Repl.Pamp.1984). Petitioners' complaint also alleged that the City was in the process of advertising for the submission of bids for the project and was proceeding with additional condemnation actions.

In May 1989, a temporary restraining order was issued by the district court, followed in June 1989 by a decision and preliminary injunction determining that petitioners had made a prima facie showing that the project would constitute "a significant interference with the public health, safety, peace, comfort or convenience, and that the public harm that [would] be caused by the * * * [p]roject outweigh[ed] the benefit to the public from building it." The preliminary injunction barred the City from obligating or spending public funds, from proceeding to execute or sign contracts or other documents to acquire access routes, or proceeding further with construction of the project.

During the pendency of this action, the state legislature enacted PHSPA. The act was signed into law and became effective June 16, 1989. On June 20, 1989, petitioners filed an amended complaint adding a second count, seeking additional injunctive relief under the provisions of the PHSPA. Petitioners sought to enjoin the City from proceeding further on the project, alleging that construction would adversely affect Los Poblanos Historical District and the John Simms House. The Simms House, a privately owned residence located adjacent to the proposed project, is the residence of a former governor and is listed on the state register of cultural properties.

After the effective date of PHSPA, the parties filed cross-motions for summary judgment. On July 24, 1989, the district court entered an order denying the parties' motions for summary judgment and denying petitioners' motion for enlargement of the preliminary injunction. By a separate order, the court granted the City's motion to dismiss petitioners' individual claims for monetary damages.

On August 22, 1989, the court entered a consolidated decision and order certifying for interlocutory appeal questions involved in this appeal.

VIABILITY OF PUBLIC NUISANCE CLAIMS

Underlying the City's appeal is the central question of whether a municipal public works project undertaken pursuant to statutory authority may be determined to constitute a public nuisance per se.

The district court enjoined the City from proceeding further with the project based upon its findings that petitioners had made a substantial showing that the project would constitute a public nuisance and would significantly interfere "with the public health, safety, peace, comfort or convenience, and that the public harm that [would] be caused by the * * * [p]roject outweigh[ed] the benefit to the public from building it." In its decision, the court found that construction of the project would result in an increase in noise and vibration and injury to the aesthetic beauty of the surrounding area, and would have an adverse effect upon the wildlife and plant life of the area. The court further found that petitioners "established that the above described harms [were] irreparable," and there was no adequate remedy at law.

The City contends on appeal that the trial court erred in denying its motion to dismiss both petitioners' statutory and common law public nuisance claims. Each argument advanced by the City is similarly premised. It asserts that prior to initiation of the project, the project had been approved by the City Council, the United States Army Corps of Engineers, the State Highway Department, and the State Historical Preservation officer. Thus, it argues, it had obtained all the necessary approvals for the project prior to the commencement of this action, that the project had been authorized and implemented pursuant to the City's constitutional and statutory authority, and that, as a matter of law, it could not constitute a public nuisance per se.

New Mexico law recognizes two types of nuisance: public nuisance and private nuisance. See, e.g., Stamm v. City of Albuquerque, 10 N.M. 491, 62 P. 973 (1900); Padilla v. Lawrence, 101 N.M. 556, 685 P.2d 964 (Ct.App.1984). The difference between the two is governed in part by a determination of whose rights are affected by the actions alleged to constitute a nuisance. Actions to abate private nuisances are intended to protect the rights of private individuals to the peaceful enjoyment of their land. Scott v. Jordan, 99 N.M. 567, 661 P.2d 59 (Ct.App.1983). Correspondingly, proceedings to enjoin public nuisances have as their major purpose the protection of rights held in common by the public. See Town of Clayton v. Mayfield, 82 N.M. 596, 485 P.2d 352 (1971); Padilla v. Lawrence; Restatement (Second) of Torts Sec. 821B (1979); see also NMSA 1978, Sec. 30-8-1 (Repl.Pamp.1984). In addition to public or private nuisances, New Mexico law classifies nuisances as nuisances per se or nuisances in fact. See Koeber v. Apex-Albuq Phoenix Express, 72 N.M. 4, 5, 380 P.2d 14, 15-16 (1963) (quoting Denney v. United States, 185 F.2d 108, 110 (10th Cir.1950)) (nuisance per...