Downtown Neighborhoods Ass'n v. City of Albuquerque

• Decision Date: 07 November 1989
• Docket Number: No. 10341,10341
• Citation: 109 N.M. 186,783 P.2d 962,1989 NMCA 91
• Parties: DOWNTOWN NEIGHBORHOODS ASSOCIATION, Petitioner-Appellee, v. CITY OF ALBUQUERQUE, Respondent-Appellant. The Whitehouse Partnership, Intervenor-Appellant.
• Court: Court of Appeals of New Mexico

Page 962

783 P.2d 962

109 N.M. 186

DOWNTOWN NEIGHBORHOODS ASSOCIATION, Petitioner-Appellee, v. CITY OF ALBUQUERQUE, Respondent-Appellant The Whitehouse Partnership, Intervenor-Appellant.

No. 10341.

Court of Appeals of New Mexico.

Nov. 7, 1989.

[109 NM 187] Karl H. Sommer, Kurt H. Sommer, Sommer, Udall & Hardwick, P.A., Santa Fe, for petitioner-appellee.

James H. Foley, City Atty., Edward R. Pearson, Asst. City Atty., Albuquerque, for respondent-appellant.

Philip B. Davis, Chris Key, Albuquerque, for intervenor-appellant.

OPINION

MINZNER, Judge.

On appellee's motion for rehearing, the prior opinion is withdrawn, and the following is substituted.

The City of Albuquerque (City) and The Whitehouse Partnership (Whitehouse) appeal from a district court decision reversing the grant of a variance by the Albuquerque City Council (City Council). Pursuant to NMSA 1978, Section 3-21-9 (Repl.1985), the Downtown Neighborhoods Association (DNA) petitioned the district court to review the City Council's decision by writ of certiorari, and the district court found the City Council's decision was not supported by substantial evidence. This appeal requires us to consider the City Council's authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.M.Rev. Ordinances Section 7-14-42 C.2 (1986), to grant a variance for unnecessary hardship to the owner of an historic building. We affirm.

FACTS AND PROCEDURAL HISTORY

In 1985, Whitehouse purchased the J.A. Garcia house, an 80-year-old, two-story home on a main arterial street near downtown Albuquerque. Experts consider the house, which is listed on both the State Register of Cultural Properties and the National Register of Historic Places, one of the best examples of Classical Revival architecture in Albuquerque.

When Whitehouse purchased the property, the partners believed that they were entitled to use the entire first floor of the house for law offices. However, the existing zoning in fact limited incidental non-residential use to 10% of the gross floor space of the premises. After being cited by the City for non-residential use in excess of the permitted 10%, Whitehouse sought a variance from the City Zoning Hearing Examiner (Examiner).

The Examiner determined, after a hearing, that the variance should be denied because Whitehouse failed to make an adequate showing of practical difficulty and unnecessary hardship. He also found that the proposed variance was not consistent with the intent and purpose of the zoning ordinance, "in that office uses in apartment zones are intended to be incidental to the apartment use itself."

Whitehouse appealed this decision to the Environmental Planning Commission (EPC). Subsequently, the Zoning Enforcement Office issued a letter opinion that "incidental use" of a house referred to a use incidental to the urban center as a whole, rather than incidental to the use of the house itself. After a hearing, the EPC reversed the Examiner's decision and found that the parcel was exceptional and that compliance with the existing zoning would cause practical difficulty and unnecessary hardship. The EPC also found that the additional office use would not be injurious to adjacent properties, and that approval of the variance would not "set a precedent and in no way precludes the use of the existing zoning" at a later time.

Pursuant to Section 3-21-8(B), DNA appealed the EPC decision to the City Council on the grounds that no legal basis existed for granting a variance, that the variance was contrary to the intent and purpose of the plan, and that the variance would be detrimental to the neighborhood. Under the statute, the City Council is required to provide the procedure to be followed in considering appeals. See Sec. 3-21-8(A). By ordinance, the City Council has provided for a preliminary review either by the full City Council or by a committee of the City Council. Albuquerque, N.M.Rev. Ordinances Sec. 7-14-45 C. 1 (1987).

In this case, the Land Use Planning and Zoning Committee (LUPZ) of the City Council conducted a hearing, at which additional evidence was taken, and recommended that the appeal be heard by the full Council. However, after a hearing, at which more evidence was received, the City Council denied the appeal, thereby affirming the EPC decision to grant the variance. Those who voted to deny the appeal also voted to adopt the following findings: (1) the house had historical significance; (2) the historical significance of the house distinguished it from other nearby property subject to the same regulations, and thus, subjecting the house to the same regulations created unnecessary hardship; (3) the variance differed from the regulation no more than was necessary to overcome the hardship, and the requested additional incidental use was the minimum needed to create a reasonable office area; and (4) the variance would not interfere with the enjoyment of other land in the vicinity and would be consistent with the spirit of the ordinance.

On writ of certiorari to the district court, the court by stipulation reviewed a record that included all of the evidence at every level. The court found that the house was historically significant but concluded that historical significance did not make the house "exceptional" as required for a variance under Section 7-14-42 C.2.b. The court also found that the remaining findings were not supported by substantial evidence. The court concluded that granting the variance was illegal, arbitrary, and capricious.

On appeal to this court, appellants contend that there was sufficient evidence to support the City Council's findings. We first address the scope of judicial review, and then we discuss the ordinance.

SCOPE OF JUDICIAL REVIEW

The decision to enact an ordinance is legislative in nature, made by an elective body under its police powers for the protection of the health, safety, and welfare of the public. An aggrieved property owner may challenge the constitutionality of a zoning ordinance in court, seek to have it changed by the local legislative body, or seek a variance from the administrative body to use property in a manner prohibited by the literal requirements of the zoning ordinance. 6 R. Powell, The Law of Real Property p 872.2 (1988). Variances are considered to be extraordinary exceptions and are granted sparingly, only under peculiar and exceptional circumstances. Id.; 8 E. McQuillin, The Law of Municipal Corporations Sec. 25.162 (3d ed. 1983). Their purpose, in the broadest sense, is to render justice in unique and individual cases. McQuillin, supra, Sec. 25.172.

Since a variance in effect creates a new zoning regulation for an individual parcel of land, id., Section 25.160, the legislative body may delegate the authority to grant a variance only if it gives adequate guidance. Id., Sec. 25.165. The authority for an administrative officer or body to grant variances is limited by the terms of the relevant statute or ordinance. See McClurkan v. Board of Zoning Appeals for Metro. Gov't, 565 S.W.2d 495 (Tenn.Ct.App.1977); Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 534 P.2d 1267 (1975).

In this case, the City Council is the elective body that made the initial zoning determination. It has delegated the authority to grant a variance to the EPC. The central question on appeal is whether the variance that was granted in this case was authorized. The district court decided that it was not authorized.

Judicial review of a zoning authority's decision is limited to questions of law. By statute, the district court must determine initially whether the decision is illegal, in whole or in part. See Sec. 3-21-9(A). An appellate court conducts the same review as the district court. That determination depends upon whether the zoning authority acted fraudulently, arbitrarily, or capriciously; whether the decision is supported by substantial evidence; and whether the zoning authority acted within the scope of its authority. Singleterry v. City of Albuquerque, 96 N.M. 468, 632 P.2d 345 (1981); Coe v. City of Albuquerque, 76 N.M. 771, 418 P.2d 545 (1966); Rowley v. Murray, 106 N.M. 676, 748 P.2d 973 (Ct.App.1987).

It is clear from our statute and the cases that this court, as well as the district court, must review actions taken by a governing body such as the City Council with deference and may disturb those decisions only as provided by law. We may not disturb a decision if we are satisfied that the action was authorized and that factual issues are supported by substantial evidence.

In this case, we believe the question of whether the variance was authorized depends upon a construction of the ordinance. As we construe the ordinance, the validity of the variance depends upon factual questions that the City Council failed to resolve.

Where the decision depends upon factual questions that the governing body failed to resolve, the reviewing court must remand for further proceedings. Cf. Michelson v. Michelson, 89 N.M. 282, 551 P.2d 638 (1976) (case should be remanded when trial court's findings of fact are insufficient to permit reviewing court to decide case). Although this principle evolved in the context of appellate court review of district court decisions, we think it is applicable here by analogy. Neither we nor the district court may make the decision in the first instance. If we are to give proper deference to the City Council, in a case where it has failed to resolve ultimate facts, we will remand to permit the Council to reach a decision that can be reviewed.

THE ORDINANCE

The City Council has broad statutory authority to grant a variance. See Sec. 3-21-8(C)(1). The City Council may authorize a variance "(a) which [is] not contrary to the public interest; (b) where, owing to special conditions, a literal enforcement of the zoning ordinance will result in unnecessary hardship; and (c) so that the spirit of the zoning ordinance is observed and substantial justice...