Cox v. Municipal Boundary Com'n

Decision Date13 September 1995
Docket NumberNo. 16053,16053
Citation120 N.M. 703,905 P.2d 741,1995 NMCA 120
PartiesMark D. and Kathryn H. COX, et al., Petitioners-Appellees, v. MUNICIPAL BOUNDARY COMMISSION and The City of Sunland Park, Respondents-Appellants.
CourtCourt of Appeals of New Mexico

BLACK, Judge.

Petitioners' Motion for Rehearing is denied. The opinion filed August 25, 1995 is withdrawn and the following is substituted therefor.

The City of Sunland Park (City) is a New Mexico municipal corporation. Pursuant to the annexation procedure provided in NMSA 1978, Sections 3-7-11 to -16 (Repl.Pamp.1987), the City filed an annexation petition seeking approval by the Municipal Boundary Commission (Commission) to annex physically contiguous territory along its main street. The Commission held hearings and determined that, with the exception of one residential area, the annexation met the requirements of Section 3-7-15.

On certiorari review, the district court held that mere physical contiguity was insufficient and ordered the Commission to scrutinize the City's motives and determine "whether the municipality is annexing the territory to increase its tax base and not because there is a community of interest or a homogeneous community between the municipality and the territory to be annexed." We hold that the Commission correctly interpreted the contiguity requirements of Section 3-7-15 and that the district court used the wrong criteria. We therefore reverse and remand to the district court.


The New Mexico Legislature "has delegated its authority of annexation under three separate methods, each of which is attuned to distinct goals and exemplifies different degrees of legislative delegation." 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). Under two of those methods, the arbitration procedure, NMSA 1978, Section 3-7-6 (Repl.Pamp.1987), and the Commission procedure, Section 3-7-11, the Legislature established administrative bodies to make annexation decisions. See Dugger, 114 N.M. at 54, 834 P.2d at 431. The application of administrative standards of review to annexations made pursuant to either of these procedures is therefore proper. Id. Like the district court, we review the Commission's actions to determine whether they were reasonable. Mutz v. Municipal Boundary Comm'n, 101 N.M. 694, 702, 688 P.2d 12, 20 (1984). This standard requires the courts to determine whether the administrative body acted fraudulently, arbitrarily, or capriciously, whether substantial evidence exists to support the decision, and whether the administrative body acted within its authority. Id. However, "[b]ecause the interpretation of 'contiguous' as it appears in Section 3-7-15 is a question of law, we need not defer to the [statutory interpretation of] the district court." Mutz, 101 N.M. at 697-98, 688 P.2d at 15-16.


The City is bordered on the north and east by the State of Texas, and on the south by the Republic of Mexico. The City has about 8,000 inhabitants grouped generally around New Mexico State Road 273, known locally as "McNutt Road." The proposed annexation is basically to the west of the existing City along McNutt Road. The territory proposed for annexation is 3.3 miles long and the portion immediately adjoining the City is vacant land. The majority of the remainder of the proposed annexation is commercial property. If annexed, the new area would constitute about 21% of the City's total area.

In June 1986, the mayor of the City wrote to property owners in the area proposed for annexation, urging their agreement to a proposed annexation. See City of Sunland Park v. Santa Teresa Concerned Citizens Ass'n, 110 N.M. 95, 95, 792 P.2d 1138, 1138 (1990). In response, these neighbors, including many of the Petitioners in the present action, petitioned the Dona Ana County Commission to incorporate a new municipality. See id. Following substantial litigation, the New Mexico Supreme Court held that the neighbors had failed to carry their burden of proving that they could provide services to the area sooner than the City, and affirmed the district court decision denying incorporation. Id. at 98, 792 P.2d at 1141.

In December 1991, the City filed an annexation petition with the Commission. At the Commission hearing, the City introduced evidence that: (1) the territory proposed for annexation is physically touching the City limits, and (2) the City is both fiscally and structurally able to provide municipal services to the new area. With the exception of certain specified lots, the Commission found that the City had met the only two criteria imposed by Section 3-7-15 and that Commission approval was required.

The district court reviewed the case on certiorari. Petitioners argued that the City was annexing the territory to increase its tax base. The district court found that the Commission had misinterpreted the "contiguity" requirement of Section 3-7-15 in requiring only that the proposed annexation touch the annexing municipality. The district court read Mutz v. Municipal Boundary Commission, 101 N.M. 694, 688 P.2d 12 (1984), to require more:

The Mutz Court implicitly recognized that "contiguity" could include requirements of "community of interest" and "homogeneous unity". Those concepts could be particular[l]y relevant when a municipalities [sic], annexes territory to increase their [sic] tax base. That is precisely the claim made in this case by Plaintiffs and evidence on those issues should have been received and considered [by] the Municipal Boundary Commission.

The district court remanded the decision to the Commission to consider "whether the municipality is annexing the territory to increase its tax base and not because there is a community of interest or a homogeneous community between the municipality and the territory to be annexed."

The City filed an appeal to this Court. On the authority of Martinez v. New Mexico Taxation & Revenue Department, 117 N.M. 588, 590, 874 P.2d 796, 798 (Ct.App.1994), we issued an unpublished memorandum opinion, holding that an order of the district court remanding a cause to the administrative agency for a new hearing and the creation of a proper administrative record was not an appealable order. The district court then issued an amended judgment containing a certification for interlocutory appeal pursuant to NMSA 1978, Section 39-3-3(A)(3) (Repl.Pamp.1991). This Court granted interlocutory appeal.


Sections 3-7-15(A) and (B) set forth the basic standards for, and duties of, the Commission when considering an annexation petition:

A. At the public hearing held for the purpose of determining if the territory proposed to be annexed to the municipality shall be annexed to the municipality, the municipal boundary commission shall determine if the territory proposed to be annexed:

(1) is contiguous to the municipality; and

(2) may be provided with municipal services by the municipality to which the territory is proposed to be annexed.

B. If the municipal boundary commission determines that the conditions set forth in this section are met, the commission shall order annexed to the municipality the territory petitioned to be annexed to the municipality.


"No other standards are imposed upon the exercise of the [C]ommission's discretion; nor does the statute attempt to define 'contiguous.' " John R. Cooney, Note, Annexation of Unincorporated Territory in New Mexico, 6 Nat. Resources J. 83, 94 (1966). The only issue raised in the present appeal is the meaning of the term "contiguous" as used in Section 3-7-15. Absent clear and express legislative intention to the contrary, statutory words are generally to be given their ordinary meaning. Whitely v. New Mexico State Personnel Bd., 115 N.M. 308, 311, 850 P.2d 1011, 1014 (1993).

The ordinary dictionary definition of "contiguous" means physical contact or close proximity.1 This is also the accepted definition of legal lexicographers.2

A definition of "contiguous" requiring a physical touching seems to have long been the definition accepted by New Mexico lawyers as well. In 1932, the New Mexico Attorney General considered the requirements for owners of leased property to petition to be included in a herd law district. N.M. Att'y Gen. Op. 502 (1932). One such prerequisite was that the land be "contiguous," which the Attorney General defined in the following terms:

We have made an examination of definitions in the various dictionaries and have also examined certain legal interpretations which we have found in Words and Phrases, and it is commonly held in these authorities that the word "contiguous" means to touch and if there is any separation of the lands by intervening parts or parcels of land then the property would not be contiguous, under the meaning of the law.

Id. A minimal physical touching or close proximity also seems to be implicit in the Attorney General's subsequent references to the term "contiguous" in other contexts. See, e.g., N.M. Att'y Gen. Op. 89-03 (1989); N.M. Att'y Gen. Op. 88-08 (1988); N.M. Att'y Gen. Op. 87-55 (1987); N.M. Att'y Gen. Op. 5864 (1953); N.M. Att'y Gen. Op. 5614 (1952).

The Attorney General's definition would also appear to be consistent with the common use of the term by the New Mexico Legislature. Indeed, when the Legislature has intended to stretch the term "contiguous" beyond...

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