Kirkpatrick v. Santa Fe County Bcc

• Decision Date: 25 August 2009
• Docket Number: No. 27,842.,27,842.
• Citation: 2009 NMCA 110,217 P.3d 613
• Parties: Charles KIRKPATRICK, June Kirkpatrick, Sudye Kirkpatrick, and James Kirkpatrick, Appellants-Respondents, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Appellee-Petitioner, and Mark Alexander, Martha Alexander, Edward Stainton, and Christine Stainton, Intervenors-Petitioners.
• Court: Court of Appeals of New Mexico

217 P.3d 613

2009 NMCA 110

Charles KIRKPATRICK, June Kirkpatrick, Sudye Kirkpatrick, and James Kirkpatrick, Appellants-Respondents, v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, Appellee-Petitioner, and Mark Alexander, Martha Alexander, Edward Stainton, and Christine Stainton, Intervenors-Petitioners.

No. 27,842.

Court of Appeals of New Mexico.

August 25, 2009.

Karl H. Sommer & Associates, P.A., Karl H. Sommer, Joseph M. Karnes, Santa Fe, NM, for Respondents.

Stephen C. Ross, County Attorney, Sue A. Herrmann, Assistant County Attorney, Santa Fe, NM, for Petitioner.

Rubin Katz Law Firm, P.C., James B. Alley, Jr., Frank T. Herdman, Santa Fe, NM, for Intervenors.

OPINION

VIGIL, Judge.

{1} This case is before us on a writ of certiorari to review a decision of the district court that certain interspousal transfers of land fall within the Family Transfer provisions of the Santa Fe County Land Development Code (Code), Santa Fe County, N.M., Ordinance 1996-10 (1996), and are therefore exempt from subdivision requirements of the Code. We affirm.

BACKGROUND

{2} This case involves an eighty-acre tract of land¹ that is subject to the Code, a zoning ordinance adopted and enforced by the Board of County Commissioners of Santa Fe County (Board). The eighty-acre tract of land was originally owned by Teme, Ltd., a partnership, which consisted of the two Kirkpatrick brothers and their wives. In a transaction not in dispute here, the Board gave administrative approval to Teme, Ltd. to divide the eighty acres into four twenty-acre parcels. The partnership subsequently deeded to each brother, "a married man as his sole and separate property" two twenty-acre parcels. Each brother, "a married man as his sole and separate property" then deeded to his respective wife a twenty-acre parcel "as her sole and separate property." The result was that each of the four individuals (Landowners) owned a separate twenty-acre parcel as his or her sole and separate property.

{3} A Family Transfer application was then submitted on behalf of Landowners to the County Land Use Administrator to allow each Landowner to deed to his or her respective spouse one-half of each twenty-acre parcel, as "his [or her] sole and separate property." If approved, the result would be eight ten-acre lots, with each separately owned by a Landowner as his or her "sole and separate property." The application was submitted pursuant to Article II, Section 2.3.1 of the Code, a provision permitting what we herein refer to as a Family Transfer.

{4} County Land Use Planning staff confirmed that the application met all applicable Code requirements for a Family Transfer and concluded that the resulting eight lots complied with all applicable development requirements of the Code, including water supply, fire protection, and adequate road access. The Land Use Administrator agreed with staff and approved the application. Each Landowner thereupon donated as a gift to his or her spouse one newly created ten-acre parcel. Landowners made the foregoing transactions in order to transfer portions of their property to their children and grandchildren and avoid triggering gift tax liability.

{5} Neighbors of Landowners (Intervenors) appealed to the County Development Review Committee (CDRC), contending that the transfer did not satisfy the intent and purpose of a Family Transfer. Staff recommended denying the appeal on grounds that the transfer complied with Code requirements, and the appeal was denied.

{6} Intervenors then appealed to the Board on the same grounds they appealed to the CDRC. Staff again recommended denial of the appeal. Counsel for Intervenors conceded that the transaction literally complied with the Code definition of a Family Transfer, but argued that the intent and purpose of a Family Transfer was not satisfied because the transfer was not intergenerational (i.e., from one generation to another) and that "viewing the transaction as a whole," the eighty-acre tract was subdivided without compliance with subdivision regulations into eight lots from four, because after all the transactions were completed, Landowners still owned the eighty acres. Counsel for Intervenors argued that the Family Transfer provision was included in the Code to recognize a Hispanic cultural tradition of parents giving portions of the family homestead to their children without having to go through the subdivision process.

{7} In a split decision, the Board overturned the decision of the Land Use Administrator and denied the application for a Family Transfer. Pertinent to this appeal, in its written order, the Board found that the intent of the Family Transfer provision was not to avoid tax consequences but rather to "maintain local cultural values by perpetuating and protecting a traditional method of land transfer within families, especially within the traditional communities." The Board also found that upon the grant of a Family Transfer "a new member of the applicant's family should secure an ownership interest in land not previously owned by that family member." Finally, the Board found that the "proposed division and distribution of land is more like a subdivision than a family land transfer and must comply with all subdivision review procedures and requirements."

{8} Landowners appealed the Board decision to the district court on the grounds that the Board had acted in an arbitrary, capricious, or illegal manner by: (1) denying Landowners' application although they complied with all Code requirements, and (2) treating Landowners differently by denying their application while approving other similar applications. Intervenors filed a motion to intervene, which was granted. Following oral argument, the district court determined that Section 2.3.1 of the Code is applicable to the Landowners' application, and it does not contain a statement of purpose or intent requirement regarding family transfers or a requirement that a new family member secure an ownership interest upon a family transfer. The district court further concluded that the Landowners' application satisfied all applicable Code requirements for a Family Transfer and remanded the case to the Board to vacate its decision on the basis that the Board decision was improper and not in accordance with the Code.

{9} Intervenors filed a petition for a writ of certiorari to review the district court decision in this Court in which the Board joined. We granted the petition.

DISCUSSION

Standard of Review

{10} On a writ of certiorari, we employ an administrative standard of review when determining whether a district court, sitting as an appellate court, erred in its review of an administrative decision. See Gallup Westside Dev., LLC v. City of Gallup, 2004-NMCA-010, ¶ 10, 135 N.M. 30, 84 P.3d 78. That is, we review the Board decision to determine if the administrative decision is arbitrary, capricious, or an abuse of discretion; not supported by substantial evidence in the record; or otherwise not in accordance with the law, in the same way the district court did in its appellate capacity. Id.; see NMSA 1978, § 39-3-1.1(D) (1999); Rule 1-074(Q) NMRA.

{11} Interpretation of an ordinance is a matter of law subject to our de novo review using the same rules of construction applicable to statutes. See High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 4, 126 N.M. 413, 970 P.2d 599. We follow three rules of statutory construction:

The first rule is that the plain language of a statute is the primary indicator of legislative intent. Courts are to give the words used in the statute their ordinary meaning unless the legislature indicates a different intent. The court will not read into a statute or ordinance language which is not there, particularly if it makes sense as written. The second rule is to give persuasive weight to long-standing administrative constructions of statutes by the agency charged with administering them. The third rule dictates that where several sections of a statute are involved, they must be read together so that all parts are given effect.

Id. ¶ 5 (internal quotation marks and citations omitted).

Code Requirement for a Family Transfer

{12} One transfer that the Code exempts from its subdivision regulations is a Family Transfer, which is described in the following language in Section 2.3.1a(ii)(h) of the Code:

The division of land to create a parcel that is sold or donated as a gift to an immediate family member (as defined in Article X); however, this exception shall be limited to allow the seller or donor to sell or give no more than one parcel per tract of land per immediate family member. Divisions made under this exception will be referred to throughout the Code as Family Transfers[.]

Article X, Section 1.66 of the Code defines the phrase "Immediate Family Member" to include a "husband, wife, father, stepfather, mother, stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece."² We agree with Landowners that Section 2.3.1 is clear and unambiguous. A Family Transfer application must (1) create a parcel that is sold or donated, (2) to an "immediate family member," and (3) a seller or donor can give no more than one parcel per "immediate family member." No other requirements are necessary. Specifically, the Family Transfer provision has no "intent" or "purpose" requirements. If the requirements are satisfied, the application must be granted.

{13} In this case, (1) each Landowner applied to donate a parcel from a tract of land he or she owns to a spouse, (2) each husband and wife is an "immediate family member", and (3) each Landowner proposed to donate no more that one parcel per tract of land to his or her spouse. Under the plain, unambiguous terms of the Code, each transaction constituted a permissible Family Transfer. As such, no subdivision regulations of the...