High Ridge Hinkle Joint Venture v. City of Albuquerque
| Decision Date | 26 October 1994 |
| Docket Number | Nos. 14606,14665,s. 14606 |
| Citation | 119 N.M. 29,1994 NMCA 139,888 P.2d 475 |
| Parties | HIGH RIDGE HINKLE JOINT VENTURE and Gene Hinkle, Petitioners-Appellees/Cross-Appellants, v. The CITY OF ALBUQUERQUE, Pauline Gubbels, Deborah Lattimore, Michael Brasher, Herb Hughes, Ruth Adams, Steve Gallegos, Tim Kline, Vince Griego, and Alan Armijo, Respondents Appellees/Cross-Appellees, Embudo Canyon Neighborhood Association, Intervenor-Appellant/Cross-Appellee. |
| Court | Court of Appeals of New Mexico |
George R. "Pat" Bryan, III, Timothy V. Flynn-O'Brien, Bryan & Flynn-O'Brien, Albuquerque, for petitioners-appellees/cross-appellants.
David S. Campbell, City Atty., Katherine C. Pearson, Acting City Atty., Carolyn S. Fudge, Asst. City Atty., Albuquerque, for respondents-appellees/cross-appellees.
Ethelinda Dietz, Albuquerque, for intervenor-appellant/cross-appellee.
The parties' briefs on appeal present several challenging issues regarding the City of Albuquerque zoning code. Matters of procedure, however, determine the outcome of this appeal. Therefore, we present in some detail the procedural posture of this case.
For approximately eleven years Gene Hinkle and High Ridge Hinkle Joint Venture (collectively referred to as Hinkle) have owned a twenty-acre site at the northwest corner of Tramway and Indian School in Albuquerque. The site has been zoned C-2 for twenty-six years. Hinkle has developed 15.6 acres with an apartment complex, an office building, and a theater. In 1991 Hinkle planned to develop most of the remainder of the site with three acres for a miniature golf course and arcade and 3/4 acre for bumper boats and go-carts. On August 23, 1991, Hinkle obtained a declaratory ruling from the City of Albuquerque Zoning Enforcement Officer that miniature golf courses and arcades are permissive uses and go-carts and bumper boats are conditional uses in the C-2 zone. A permissive use ordinarily is allowed in the zone as a matter of right. A conditional use is permitted if it will not injure adjacent property, the neighborhood, or the community and will not be significantly damaged by surrounding structures or activities. Albuquerque, N.M., Comprehensive City Zoning Code Sec. 7-14-42.C.1. The City instructed Hinkle to obtain two separate approvals for the development--one for the permissive uses (miniature golf and arcade) and one for the conditional uses (bumper boats and go-carts). The Environmental Planning Commission (EPC) approved the site plan for the permissive uses. The Zoning Hearing Examiner granted a permit for the conditional uses. In November 1991 the Embudo Canyon Neighborhood Association appealed the declaratory ruling, the EPC's approval of the site plan for the permissive uses, and the hearing examiner's approval of the conditional uses. Each appeal took a different course through City government.
The Board of Appeals heard the appeal from the grant of the conditional use. On December 12, 1991, by a three-to-one vote, the Board reversed the hearing examiner's decision on the ground that Hinkle did not "conclusively" prove that the proposed conditional uses would not be injurious to the adjacent property, neighborhood, or community. Hinkle appealed that decision to the City Council, which on March 2, 1992, ruled that the Board had utilized an incorrect standard and remanded to the Board for determination of whether Hinkle produced "convincing proof" that it was entitled to the conditional use. Further action by the Board was mooted, however, by developments in the appeal of the declaratory ruling.
The appeal of the declaratory ruling had proceeded as follows: The EPC held a hearing on January 9, 1992, at which the Zoning Enforcement Officer testified concerning the City's prior practice in approving go-carts as conditional uses. The EPC upheld the declaratory ruling. The Neighborhood Association then appealed to the City Council. At its meeting of February 3, 1992, the Council remanded the matter to the Land Use Planning and Zoning Committee. After a hearing the committee voted three-to-two to recommend to the Council that it uphold the declaratory ruling without a further hearing and by a four-to-one vote found that go-carts and bumper boats are conditional uses in a C-2 zone. On March 2, 1992, the City Council deadlocked four-to-four on a motion to accept the committee report; therefore the matter was scheduled for a full Council hearing. At its meeting of March 16, 1992, the Council unanimously ruled that an arcade and miniature golf are permissive uses but go-carts and bumper boats are not conditional uses in a C-2 area.
As a result of the Council decision, on March 18 the Board of Appeals issued a letter indicating that it would take no further action on the appeal of the grant of a conditional use. The Council decision made it unnecessary to evaluate the effects that the use of go-carts and bumper boats would have on the surrounding area because such activities would be prohibited on a C-2 site in any event.
As for the EPC's approval of Hinkle's site plan for the permissive uses (the miniature golf course and arcade), on December 4, 1991, the Land Use Planning and Zoning Committee heard the Neighborhood Association's appeal from the EPC approval and tabled the site plan. On January 15, 1992, the committee sent the site plan to the City Council. After several hearings the City Council remanded the site plan back to the EPC on March 2, 1992. The EPC again unanimously approved the site plan, causing the Neighborhood Association to appeal once more. On June 29, 1992, the City Council, having already ruled that go-carts and bumper boats are not conditional uses on C-2 property, voted five-to-three to remand to the EPC once again Hinkle's site plan for the permissive uses. The Council instructed the EPC not to hear the matter until (1) litigation concerning the conditional uses was resolved and (2) Hinkle proposed uses for the entire site, not just for the area planned for miniature golf and an arcade.
Having struck out with the City Council, Hinkle sought relief in state district court. Its second amended petition contained six counts. The first three counts sought relief from the City Council decisions rejecting Hinkle's proposed conditional uses--go-carts and bumper boats. Count IV sought declaratory and injunctive relief against the City's subjecting the proposed development to its shopping center regulations (which apply to sites containing five or more acres). Count V sought relief by writ of certiorari from the Council decision to remand to the EPC for a third consideration of Hinkle's site plan for the permissive uses. Count VI sought damages for civil rights violations.
The flow of the case in district court was only slightly less complex than the proceedings before the City Council and its agencies. On September 28, 1992, the district court sent the parties a letter which stated in full: "Petitioner's Request Reference Counts, 1, 2, 3, 4, & 5 (amended petition) are denied."
Hinkle sought reconsideration. The district court reconsidered and on January 15, 1993, revised its ruling with respect to Count V. The court ordered the City Council to review Hinkle's plan for the miniature golf course and arcade without requiring Hinkle to submit a site plan for the entire 4.4 acres that had not yet been developed. The order concluded: "IT IS FURTHER ORDERED that this Court shall retain jurisdiction for future hearings as to Count V." On January 28, 1993, the court entered judgment against Hinkle on Counts I, II, III, and IV, but stated that the order was "not a final order for purposes of appeal."
On February 15 the Neighborhood Association filed a notice of appeal from the January 15 order. Later, apparently as a result of the City Council's approval on remand of the proposed miniature-golf-and-arcade development, Hinkle moved to dismiss without prejudice Count VI of its petition. On March 18, 1993, the district court dismissed Count VI without prejudice and added: "IT IS FURTHER ORDERED that there being no further matters pending before this Court, the Court's Judgment filed January 28, 1993 is, as of the date of the filing of this Order, final for purposes of any appeal from that Judgment." The Neighborhood Association filed another notice of appeal, and Hinkle appealed from the March 18 order, stating on the notice that the March order "made final the Judgment of January 28[.]"
The parties raise numerous issues in their briefs on appeal. Most are mooted by our rulings on other issues and will not be discussed in this opinion. The Neighborhood Association's appeal challenges the district court's remand to the City Council. Hinkle's cross-appeal challenges the district court's ruling affirming the Council decision that go-carts and bumper boats are not conditional uses in an area zoned C-2. Each party disputes our jurisdiction to hear the other party's appeal. We hold: (1) the Neighborhood Association's appeal must be dismissed because the appeal was not from a final, appealable order; (2) we have jurisdiction over Hinkle's appeal; (3) the City of Albuquerque zoning code is ambiguous as to whether go-carts and bumper boats are conditional uses in the C-2 zone, and the ambiguity should be resolved in the first instance by the Albuquerque City Council; and (4) the Council must reconsider its interpretation of the zoning code.
The Neighborhood Association's sole challenge to the district court's judgment regards the January 15, 1993, remand to the City Council pursuant to Count V. We hold that the remand order was not a final, appealable order. Before the Association would have the right to challenge that order on appeal to this Court, it would have to await the Council decision on remand, obtain review of the Council decision in district court, and then...
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