Edward H. Snow Const. Co. v. City of Albuquerque
| Decision Date | 29 December 1958 |
| Docket Number | No. 6469,6469 |
| Citation | 65 N.M. 133,333 P.2d 877,1958 NMSC 142 |
| Parties | EDWARD H. SNOW CONSTRUCTION COMPANY, Inc., a domestic corporation, Western Investments, Inc., a domestic corporation, and Elmer T. Lewis, an individual, Petitioners-Appellants, v. The CITY OF ALBUQUERQUE, a municipal corporation, The City Commission of The City of Albuquerque, and its members, Maurice Sanchez, Chairman, Lars Halama, Richard A. Bice, Charles S. Lanier, and William W. Atkinson, and The City Planning Commission of the City of Albuquerque, Respondents-Appellees. |
| Court | New Mexico Supreme Court |
Hannett, Hannett & Cornish, Albuquerque, for appellants.
Frank L. Horan, Malcolm W. deVesty, Paul F. Henderson, Jr., Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, for appellees.
This is an appeal from an order of the District Court of Bernalillo County quashing Writ of Certiorari previously granted by it.
The appeal stems from the action of the City Commission in enacting Ordinance No. 1281, rezoning a tract of land belonging to the University of New Mexico from Residential 1 to Commercial 2 classification. Appellants, Lewis and West Investments, Inc., are the owners of residential property adjacent thereto. Appellant, Edward H. Snow Construction Company, Inc., is developing a shopping center nearby. They alleged in their petition that the zone change was illegal and void, setting forth numerous grounds of illegality.
The writ was granted November 21, 1957. Appellees were directed to certify to the clerk of the court a transcript of the proceedings had in connection with the rezoning on or before December 10, 1957, and this was done. They were also directed to file return and serve the same upon appellants' attorney within 30 days. Thereafter, on March 10, 1958, returns to the writ were made and served.
Meanwhile, on December 20, 1957, appellees filed a motion to quash the writ and dismiss the petition for failure to state grounds of relief. The basis for the motion is that the action of the governing body constitutes a legislative determination and as such is not reviewable by certiorari. At a hearing held on the motion, the trial court concluded that it had exceeded its jurisdiction in granting the writ and entered an order vacating the same. The action of the trial court in so doing is here for review.
The tract in question was originally zoned Residential 1, November 17, 1953, by Ordinance No. 880. In 1955, it was amended by Ordinance No. 1062. As amended the tract was divided into 10 separate zone classifications. Thereafter, in July 1957, an application was made by the Board of Regents to the City Commission to rezone the entire tract as Commercial 2. The application was referred to the City Planning Commission for its report and recommendation. Appellants immediately protested, after which the Planning Commissioner conducted a public hearing thereon at which appellants actively participated. In due time the Planning Commission submitted its report to the City Commission with a recommendation that the application be granted. A public hearing was held by the City Commission and again appellants protested. Nevertheless, the recommendation was accepted and the questionable ordinance enacted.
The question is whether certiorari is available to review the action of the City Commission. The parties agree that the common-law writ of certiorari does not lie as the function of that ancient writ is to review acts of inferior courts or tribunals acting in a judicial or quasi-judicial character. State ex rel. Sisney v. Board of County Commissioners of Quay County, 27 N.M. 228, 199 P. 359. So, if the right of review exists at all, authority therefore must be found in the statute.
The pertinent provisions of the applicable statute read:
'An act to enable the governing bodies * * * to adopt and enforce zoning ordinances * * * within their limits * * *'
(Emphasis ours)
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