City of Santa Fe v. Gamble-Skogmo, Inc.

• Decision Date: 27 January 1964
• Docket Number: GAMBLE-SKOGM,INC,No. 7327,7327
• Citation: 389 P.2d 13,1964 NMSC 16,73 N.M. 410
• Parties: CITY OF SANTA FE, Plaintiff-Appellee, v.and Charles Atwell, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 13

389 P.2d 13

73 N.M. 410

CITY OF SANTA FE, Plaintiff-Appellee, v. GAMBLE-SKOGMO, INC. and Charles Atwell Defendants-Appellants.

No. 7327.

Supreme Court of New Mexico.

Jan. 27, 1964.

Gilbert, White & Gilbert, Sumner S. Koch, Santa Fe, for appellant.

Dean S. Zinn, John D. Donnell, Santa Fe, for appellee.

NOBLE, Justice.

This appeal requires our determination whether the historical zoning ordinance of the City of Santa Fe is ultra vires of the city's powers and whether the ordinance is valid and constitutional.

Defendants, Gamble-Skogmo, Inc. and Charles Atwell, resident manager, obtained a permit pursuant to the city building code to remodel a building within the historical zone in Santa Fe. One requirement of the plans and specifications and of the permit was that to comply with the historical zoning ordinance, the window panes not exceed thirty inches square. The window pane requirement was asccomplished by installation of 'mullions' or wooden dividers back of the window panes which gave the appearance of window panes of the required size. After completion of the remodeled building, but before the city's approval, the defendants removed the dividers leaving large show windows contrary to the city ordinance and the building permit.

This appeal followed the conviction and sentence in the district court, on appeal from the city court.

We find no merit to defendants' first contention that a criminal conviction cannot be supported because the historical zoning ordinance contains no penalty clause. The historical zoning act prescribes the conditions for approval of plans and specifications upon which a building permit is issued under the building code. Defendants were charged and found guilty in city court with violation of that provision of the Uniform Building Code which requires all construction work to be according to the plans and specifications approved with the building permit. No attack was made, either in the trial court or here, upon the building code.

Santa Fe Ordinance 1957-18, adopted October 30, 1957, created an historical district and provided regulations for buildings constructed or altered therein. Its purpose is stated is:

'Section 2. Purpose of Creating 'H' Historical District.

'That in order to promote the economic, cultural and general welfare of the people of the City of Santa Fe, and to insure the harmonious, orderly and efficient growth and development of the municipality, it is deemed essential by the City Council of the City of Santa Fe, that the qualities relating to the history of Santa Fe, and a harmonious outward appearance which preserves property values and attracts tourists and residents alike, be preserved; some of these qualities being: the continued existence and preservation of historical areas and buildings; continued construction of buildings in the historic styles, and a general harmony as to style, form, color, proportion, texture and material between buildings of historic design and those of more modern design.'

Defendants next direct their attack to the historical zoning portion of the city's zoning ordinance, claiming a lack of enabling legislation authorizing such an exercise of the police power by the city.

A municipality has no inherent right to exercise police power. Its powers are derived solely from the state. Town of Mesilla v. Mesilla Design Center & Book Store, 71 N.M. 124, 376 P.2d 183; Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 733. We, therefore, examine the statutes in force at the time the ordinance was adopted directing our inquiry to whether the grant of zoning power authorized preservation of a historical area. It is agreed that the authority, if it is to be found, must be contained in Secs. 14-28-9 to 11, N.M.S.A.1953. Sec. 14-28-10 contains a specific grant of power to regulate or restrict the erection, construction, re-construction, alteration, repair or use of buildings, structures or lands, and Sec. 14-28-11 provides that 'such regulations and restrictions' shall be 'in accordance with a comprehensive plan * * * to promote the health and the general welfare * * *.' We note in passing that specific legislative authority was subsequently granted by the 'Historic District Act,' Ch. 92, Laws 1961.

Defendants assert that the enabling legislation limited a municipality's zoning power to enactment of regulations restricting the height, number of stories, and size of buildings; the size of lots and percentage thereof that may be occupied; the density of population, and the location and use of buildings for trade, industry, residence or other uses. We find no such restriction in the statute. Sec. 14-28-11, N.M.S.A.1953, grants the authority to regulate and restrict 'in accordance with a comprehensive plan * * *; to promote health and the general welfare; * * *.' The legislature, then, granted municipalities authority, by zoning ordinances, to restrict and regulate buildings and structures in accordance with a comprehensive plan for the general welfare of the city and its people. To be within the authorized purposes the zoning ordinance must bear some reasonable relationship to the general welfare.

The term 'general welfare' has not been exactly defined, we think, by reason of the same definitive problem expressed in Arnold v. Board of Barber Examiners, 45 N.M. 57, 70, 109 P.2d 779, 787, regarding the phrase 'affected with a public interest,' where it was said:

'* * * The phrase 'affected with a public interest' probably can never be given an exact definition. This is probably desirable when we reflect upon the constant and ever changing conditions of our social and economic structure. This condition clearly implies the necessity for some degree of latitude allowable for obviously necessary judicial interpretation.'

See, also, Barwin v. Reidy, 62 N.M. 183, 192, 307 P.2d 175, which described the public policy as 'a wide domain of shifting sands.'

No decisions discussing the precise question of enabling legislation have been pointed out to us nor have we found any. However, analogous questions were before the Massachusetts Supreme Court on at least two occasions. The question there was the constitutionality of proposed legislation establishing and preserving historical areas in that state. In each case the right to exercise the police power depended upon whether preservation of such an historical area and style of architecture was comprehended within the public welfare. If it was, the police power could be constitutionally exercised to preserve and protect such areas.

In the opinion of the Justices to the Senate, 333 Mass. 783, 128 N.E.2d 563, 566, it was said:

'The announced purpose of the act is to preserve this historic section for the educational, cultural, and economic advantage of the public. If the General Court believes that this object would be attained by the restrictions which the act would place upon the introduction into the district of inappropriate forms of construction that would destroy its unique value and associations, a court can hardly take the view that such legislative determination is so arbitrary or unreasonable that it cannot be comprehended within the public welfare.'

In a second opinion of the Justices to the Senate, 333 Mass. 773, 128 N.E.2d 557, 559, 561, the same question was presented regarding an act establishing historic districts known as '(1) Old and Historic Nantucket District, and (2) Old and Historic Siasconset District.' The purpose of the act was to promote the general welfare of the inhabitants of the town through "the preservation and protection of historic buildings, places and districts of historic interest; through the development of an appropriate setting for these buildings, places and districts; and through the benefits resulting to the economy of Nantucket in developing and maintaining its vacation-travel industry through the promotion of these historic associations.' * * * .' The purpose was held to be for the promotion of the public welfare. We quote at some length from the Massachusetts court because of its special application to the situation presented by the instant case. In 128 N.E.2d at 561, 562, it was said:

'* * * Can it rest upon the less definite and more inclusive ground that it serves the public welfare? The term public welfare has never been and cannot be precisely defined. * * *'

The court after discussing other decisions went on to say:

'* * * We may also take judicial notice that Nantucket is one of the very old towns of the Commonwealth; that for perhaps a century it was a famous seat of the whaling industry and accumulated wealth and culture which made itself manifest in some fine examples of early American architecture; and that the sedate and quaint appearance of the old island town has to a large extent still remained unspoiled and in all probability constitutes a substantial part of the appeal which has enabled it to build up its summer vacation business to take the place of its former means of livelihood. * * * There has been substantial recognition by the courts of the public interest in the preservation of historic buildings, places, and districts. (citing authorities)

'It is not difficult to imagine how the erection of a few wholly incongruous structures might destroy one of the principal assets of the town, * * *.

'We are of opinion that in a general sense the proposed act would be an act for the promotion of the public welfare * * *.'

For other persuasive decisions, because they involved the question whether the taking, under eminent domain, for preservation of sites of historical interest was for a public purpose; in the public interest; or for the general welfare, see: United States v. Gettysburg Electric Ry., 160 U.S. 668, 681, 16 S.Ct. 427, 40 L.Ed. 576, (Site of the Gettysburg Address); Flaccomio v. Mayor & City Council of Baltimore, 194 Md. 275, 71 A.2d 12, 14, (property where the 'Star Spangled Banner' which flew over Fort...