Davis v. City of Albuquerque

• Decision Date: 24 June 1982
• Docket Number: No. 13738,13738
• Citation: 98 N.M. 319,1982 NMSC 70,648 P.2d 777
• Parties: Dannie K. DAVIS and Betty J. Davis, Petitioners-Appellees, v. CITY OF ALBUQUERQUE, a New Mexico Municipality, and City Council of the City of Albuquerque, Respondents-Appellants, and Lynn L. Coburn, David J. Ricks, David R. Page and Leith H. Page, Respondents-In-Intervention.
• Court: New Mexico Supreme Court

Page 777

648 P.2d 777

98 N.M. 319

Dannie K. DAVIS and Betty J. Davis, Petitioners-Appellees, v. CITY OF ALBUQUERQUE, a New Mexico Municipality, and City Council of the City of Albuquerque Respondents-Appellants and Lynn L. Coburn, David J. Ricks, David R. Page and Leith H Page, Respondents-In-Intervention.

No. 13738.

Supreme Court of New Mexico.

June 24, 1982.

Rehearing Denied July 19, 1982.

[98 NM 319] George R. "Pat" Bryan, III, City Atty., Charles N. Estes, Jr., Asst. City Atty., Albuquerque, for respondents-appellants.

Wallin & Guest, Michael Guest, Albuquerque, for petitioners-appellees.

Branch, Perkal & Associates, Albuquerque, respondents-in-intervention.

OPINION

SOSA, Senior Justice.

This is an appeal from the district court's second reversal of appellant's (City's) decision to down zone appellees' (the Davis') property from R-3 (medium to high density residential) to SF (single family residential). The issue on appeal is whether the City must prove either (1) a mistake in the original zoning or (2) a substantial change in the character of the neighborhood since the original zoning, to justify a down zoning change, in accordance with the rule of Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976).

This case was brought by the Davises in the district court as a petition for writ of certiorari pursuant to Section 3-21-9, N.M.S.A.1978, governing zoning regulations. They sought to challenge a zoning map amendment adopted by the City and its City Council, and approved by the mayor. The Davises own four contiguous lots along Silver Avenue, S.E., in Albuquerque which fall within the City's University Neighborhoods Sector Development Plan (Plan). Following public hearings, the City adopted the comprehensive plan and rezoned the Davis' lots from R-3 to SF.

The district court remanded the case to the City Council for reconsideration of its adoption of the Plan. The court held that the City had failed to show that the rezoning of Davis' property

2. Was made after a showing that either there was a mistake in the original zoning or that a substantial change (had) occurred in the character of the neighborhood since the original zoning to such an extent that a change in the original zoning (was) reasonably necessary to protect the public interest.

On remand, the City Council held a public meeting, heard testimony and received exhibits. The City Council reaffirmed the rezoning of the Davis' land. The City filed a "Further Return to Writ of Certiorari Pursuant to Remand" with the district court. The court held that the "mistake or change" rule adopted by Miller, supra, applied to this rezoning, and that the City had failed to prove either a mistake or change. Consequently, the court reversed the City Council's decision to rezone.

The Miller case involved a downzoning by the City of Albuquerque. Although the landowner had requested a rezoning of one of his parcels of land to a less restrictive use, the City Planning Department recommended that it and the landowner's other parcel of land be rezoned to a more restrictive use. The City adopted the recommendation and downzoned the two parcels. The trial court reversed. Affirming the trial court's reversal of the City's action, this Court explained the rationale behind the rule governing amendments to a zoning ordinance.

First, there is the presumption that the initial determination of the type of zoning for the property involved is the correct one. The second reason is that, even though a landowner has no vested right in a particular zoning classification for his property and his property is subject to rezoning, he still has a right to rely on the requirement that anyone seeking to rezone his property to a more restrictive zoning must show that either there was a mistake in the original zoning or that a substantial change has occurred in the character of the neighborhood since the original zoning to such an extent that the reclassification or change ought to be made. Additionally, there is the desirable stability of zoning classifications upon which the property owner has a right to rely, since property may be purchased and sold or uses of the property undertaken in reliance on existing classifications. (Emphasis added.)

Miller, supra at 506, 554 P.2d at 668.

In the present case, the City argues that this "mistake or change" rule has been followed in only a few jurisdictions, and that in those jurisdictions its application is limited to situations involving only piecemeal rezoning. They argue that the rule has not been applied to comprehensive rezonings where the zoning of extensive geographic areas is changed by zoning authorities after full public consideration, as is the case here. They rely on the...