McGarry v. Scott

• Decision Date: 16 June 2003
• Docket Number: No. 27,294.,27,294.
• Citation: 134 N.M. 32,2003 NMSC 16,72 P.3d 608
• Parties: Michael A. McGARRY, as trustee of the Christine Kurtz McGarry Trust, the Living Trust of Mary Margaret Frebies, and the Michael A. McGarry Living Trust, Plaintiff-Respondent, v. Fred J. SCOTT, Steve R. Barela, James H. Meisner, William R. Dawson, Jr., Clara B. Chicharello, Board of County Commissioners of the County of Cibola, New Mexico, et al., Defendants-Petitioners.
• Court: New Mexico Supreme Court

72 P.3d 608

134 N.M. 32

2003 NMSC 16

Michael A. McGARRY, as trustee of the Christine Kurtz McGarry Trust, the Living Trust of Mary Margaret Frebies, and the Michael A. McGarry Living Trust, Plaintiff-Respondent, v. Fred J. SCOTT, Steve R. Barela, James H. Meisner, William R. Dawson, Jr., Clara B. Chicharello, Board of County Commissioners of the County of Cibola, New Mexico, et al., Defendants-Petitioners.

No. 27,294.

Supreme Court of New Mexico.

June 16, 2003.

Daniel J. Macke, Kevin M. Brown, Albuquerque, NM, for Petitioners.

William G. Stripp, Ramah, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Plaintiff-Respondent Michael McGarry is the trustee for lots held in three living trusts for property in the Timberlake subdivision in McKinley and Cibola counties. Plaintiff sued Defendants-Petitioners McKinley and Cibola counties, among others, to compel road maintenance. This Court granted certiorari to determine whether the New Mexico Subdivision Act, NMSA 1978, §§ 47-6-1 to -29 (1973, as amended through 1999) (Subdivision Act), and this Court's opinion in State ex rel. Shelton v. Board of Commissioners, 49 N.M. 218, 161 P.2d 212 (1945), require that Defendants accept road maintenance or whether Plaintiff can impose maintenance obligations through public use under the theories of implied dedication or prescription. We conclude that the Subdivision Act requires that counties must accept roads for maintenance and that there is no evidence of acceptance in this case. Thus, we affirm the trial court's grant of summary judgment for Defendants.

I. Facts and Background

{2} The Timberlake subdivision is comprised of four subdivisions that were created between 1978 and 1981. The covenants for the subdivisions were filed in Valencia County between those years. Cibola County was formed from Valencia County in 1981. The Timberlake subdivision is located in both Cibola and McKinley counties. The subdivision developers constructed roads that did not meet county standards for maintenance and retained maintenance responsibility of the roads within the subdivision through at least 1991. Through a settlement agreement, McKinley County agreed to bring several miles of Timberlake Road up to Class C status and to provide gravel for the road.¹ The agreement stated that no other roads would be accepted by McKinley County unless the roads were improved to Class C Status. Defendants provided evidence that, in 1991, at least eighty percent of the Timberlake Ranch lots were sold and, as a result, following a vote by lot owners, the Timberlake Ranch Landowners' Association assumed responsibility for road maintenance. The trusts represented by Plaintiff acquired lots thirty and thirty-one in 1991, lot thirty-two in 1993, and lot seven in 1998.

{3} In 1999, Plaintiff filed a declaratory judgment action against Defendants, the developers, and the Timberlake Ranch Landowners' Association, among others, to require the construction and maintenance of the roads "throughout the four subdivisions." Defendants filed motions for summary judgment, arguing that they had no obligation because they never accepted the subject roads for maintenance. Defendants relied primarily on the Subdivision Act. Plaintiff offered extrinsic evidence in the form of affidavits challenging Defendants' legal argument that the roads had not been accepted. Plaintiff did not refute that Defendants never formally accepted the roads for maintenance, but argued instead that acceptance could be established through public use alone.

{4} The district court granted Defendants' motion for summary judgment. Plaintiff's only argument regarding the Subdivision Act is that the district court did not find that the roads were subdivision roads, although Plaintiff's complaints note that the land in question is part of a subdivision. The district court did not reference the Subdivision Act by name or statute citation in its decision; however, as noted by Defendants, the issue presented in their motion for summary judgment was the applicability of the Subdivision Act. The district court's decision recognized that the roads and land in dispute are within four subdivisions constituting the Timberlake subdivision, and that the covenants for the subdivisions were filed in McKinley, Valencia, and Cibola counties. The district court specifically decided that, "[w]hile the roads were dedicated to the Counties, the Defendant Counties have not accepted [the roads] for maintenance." We believe that Defendants' argument regarding the Subdivision Act formed the basis of the district court's decision. The Court of Appeals reversed in a memorandum opinion, holding that significant public use of the roads may render them "public highways" under NMSA 1978, § 67-2-2 (1905) under a theory of implied acceptance or prescriptive acquisition. McGarry v. Scott, NMCA 21,774, slip op. at 3-6 (Nov. 13, 2001), cert. granted, No. 27,294, 131 N.M. 738, 42 P.3d 843 (2002).

II. Discussion

{5} A trial court may grant summary judgment "if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). This Court reviews the trial court's summary judgment ruling de novo. See Phoenix Indem. Ins. Co. v. Pulis, 2000-NMSC-023, ¶ 6, 129 N.M. 395, 9 P.3d 639.

{6} Defendants argue that the Subdivision Act requires acceptance by the Board of County Commissioners prior to a commitment for road maintenance. Defendants also argue that Shelton does not allow county acceptance solely through public use. Lastly, Defendants argue that the Court of Appeals' opinion will have undesirable effects, such as the imposition of significant public obligations on counties based on acceptance by public use rather than formal statutory acceptance. Plaintiff argues that the fact that the road is used for mail delivery, a school bus route, and by members of the public is enough to establish that Defendants must improve and maintain the roads. The record does not clearly reflect which roads were at issue, and the parties continue to disagree on appeal. As Defendants note, Plaintiff's complaint requested that the trial court order that McKinley County, "Cibola County, or the Timberlake developers and salespersons, or all of them, have the obligation to construct and maintain Class A roads throughout the four subdivisions." Defendants agree that, since 1998, they have maintained and certified several miles of the main road through the subdivision. Based on Plaintiff's complaint and the parties' agreement that Defendants are already maintaining part of the main road, we conclude that the subdivision roads at issue are all roads throughout the subdivision except for the portion McKinley County currently maintains. With respect to these roads at issue, we hold that the Subdivision Act requires formal county acceptance to obligate the counties for road maintenance and that such acceptance cannot be satisfied through the common law doctrines of prescriptive acquisition or implied dedication.

{7} The property at issue constitutes a county subdivision and thus is subject to the Subdivision Act. See NMSA 1978, § 47-6-2(J) (1996) (defining "subdivision" in part as the "division of a surface area of land, including land within a previously approved subdivision, into two or more parcels for the purpose of sale, lease or other conveyance or for building development" not within the boundaries of a municipality); NMSA 1978, § 47-6-4 (1996) ("Every final plat submitted to the county clerk shall be accompanied by an affidavit of the owner and subdivider or their authorized agents stating whether or not the proposed subdivision lies within the subdivision regulation jurisdiction of the county."); Lorentzen v. Smith, 2000-NMCA-067, ¶ 7, 129 N.M. 278, 5 P.3d 1082 (noting that the Subdivision Act applies to any subdivision as defined by the Act); State v. Heck, 112 N.M. 513, 515, 817 P.2d 247, 249 (Ct.App. 1991) ("We note that the actions of a subdivider rather than divisions of the land itself trigger the protections of the [Subdivision] Act."); Gabaldon v. Sanchez, 92 N.M. 224, 226, 585 P.2d 1105, 1107 (Ct.App.1978) (noting that subdivided property "is within the meaning of the New Mexico Subdivision Act and, therefore, controlled by that statute"). "The Subdivision Act requires that [subdivided property] ... must be developed to comply with the requirements of the Subdivision Act." State ex rel. Udall v. Cresswell, 1998 NMCA 072, ¶ 2, 125 N.M. 276, 960 P.2d 818.

{8} Our Legislature first addressed subdivision planning in 1884, later authorizing municipalities to plan and regulate land use with zoning powers as early as 1927, granting power to create a municipal planning commission in 1947, and granting counties zoning authority in 1959, with greater authority given in 1967. Joseph F. Canepa & Janice M. Ahern, Office of the Attorney Gen. of N.M., Subdividing Land in New Mexico: A Guide for Subdividers, Land Use Administrators, Public Officials and Land Purchasers 13 (2d ed.1984) (contributions by Anita Miller; prepared under Paul Bardacke). See generally Cresswell, 1998-NMCA-072, ¶ 20 & n. 2, 125 N.M. 276, 960 P.2d 818 (noting that our courts have previously relied upon this guide). In 1973, the Legislature granted counties broad regulatory power with the enactment of the Subdivision Act, and "the state of New Mexico committed itself to a system of managed growth to anticipate and plan for land subdivision." Canepa & Ahern, supra, at 14-16. The population of New Mexico experienced a significant increase between the years 1960 and 1980, from 951,023 to 1,266,600 people. Id. at 9. Population and growth issues

have placed a large burden upon city and county governments as well as the taxpayers. Bankrupt or irresponsible developers have failed to provide the roads and water and sewage systems promised to purchasers of lots in subdivisions. The counties

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