Ricci v. Bernalillo Cnty. Bd. of Cnty. Comm'rs

Decision Date04 October 2011
Docket NumberNo. 30,264.,30,264.
Citation266 P.3d 646,2011 -NMCA- 114,150 N.M. 777
PartiesNick RICCI, Lynda Ricci, Meade Estate Neighborhood Association, Frank Chavez, William Aceves, Jr., William Aceves, Irma Aceves, Deborah Hall, Kenneth Tisdale, Daniel Ortega, and Roxanne Ortega, Petitioners–Appellants, v. BERNALILLO COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent–Appellee,andAlbuquerque Excavators, Inc., Loretta Chavez, and William F. Davis, Interested Parties.
CourtCourt of Appeals of New Mexico

OPINION TEXT STARTS HERE

Appeal from the District Court of Bernalillo County, Geraldine E. Rivera, District Judge.Oman & Yntema P.A., Hessel E. Yntema, III, Albuquerque, NM, for Appellants.

Bernalillo County, Jeffrey Landers, County Attorney, Patrick F. Trujillo, Deputy County Attorney, Albuquerque, NM, for Appellee.

OPINION

SUTIN, Judge.

{1} PetitionersAppellants (Petitioners), who are neighbors of property to be developed into a residential subdivision were unsuccessful in their attempt, before the Bernalillo County Board of County Commissioners (the board), to stop a developer from removing certain material in the ground before construction of the subdivision. The material being removed had commercial value in and of itself. The board approved issuance of a special-use permit for the excavation and removal of the material. Petitioners unsuccessfully appealed to the district court, and now, on certiorari, they ask this Court to reverse the district court with remand to the board. Petitioners assert that the board failed to employ the correct standard for issuance of a special-use permit.

{2} The dispute regarding the correct standard for issuance of a special-use permit is whether an administratively adopted standard for issuance of special-use permits should include additional criteria that our Supreme Court established for approval of a zone map change in Albuquerque Commons Partnership v. City Council of Albuquerque (ACP), 2008–NMSC–025, 144 N.M. 99, 184 P.3d 411. We hold that the board was not required to employ the ACP criteria in considering issuance of the special-use permit.

BACKGROUND

{3} The petition for a writ of certiorari filed by Petitioners, stems from their unsuccessful appeal to the district court from a decision of the board. The board approved an application for a special-use permit for mining, excavating, removing, processing, and stockpiling. This work was to be done in connection with development of a subdivision. The district court affirmed the findings and decision of the board. The applicants for the special-use permit were Loretta Chavez, the owner of property to be developed, whom we refer to as “Developer,” and Albuquerque Excavators, Inc. (Excavators), the company hired to perform the work permitted under the special-use permit. Developer and Excavators were Interested Parties in the district court proceeding.

The Administrative Proceedings

{4} Developer applied to Bernalillo County (the county) to develop a thirty-one unit subdivision on an approximate fifty-six acre site, following which a grading and drainage plan was approved by the county. In the process of grading and draining, it was discovered that the soil underneath the property was rich in aggregate material, sand, and gravel. Developer determined that it would be worthwhile to remove the material because it was valuable and because the material would ultimately have to be removed to develop the lot. When Excavators started the removal, the county issued a zoning violation citation based on rock removing activity. Consequently, Developer and Excavators applied for the special-use permit.

{5} The Bernalillo County Planning Commission (the planning commission) denied the application for a special-use permit, concluding that because the site was located next to a residential area, it would be detrimental to the residential area, and also concluding that Developer failed to demonstrate that the existing A–1 zoning was inappropriate. Developer appealed the planning commission's denial of the special-use permit to the board, and the board reversed the planning commission's determination and granted the special-use permit.

{6} Specifically, the board found that the request for the special-use permit was consistent with County Zoning Ordinance Resolution 116–86 and Policies of the Rural Area Section of the Albuquerque/Bernalillo County Comprehensive Plan (the plan) in that the site was near other sand and gravel sites and was not near highly scenic or prime recreational areas. The board also found the request to be consistent with a Resolution 116–86 “more advantageous to the community” standard, on the ground that the “land use is more advantageous to the community since it encourages a small-scale, locally owned and operated industry and reduces the need to travel as articulated in Policies 3.g, 6.a, 6.b [and] 6.g of the ... [p]lan.” The board further determined that the request was consistent with the health, safety, and general welfare of residents of the county, a requirement also contained in Resolution 116–86. The board imposed a number of conditions on the permit. The conditions consisted of a substantial number of requirements and restrictions, and the permit was issued for two years.

The District Court's Decision

{7} Petitioners raised only one issue in their appeal to the district court from the decision of the board: whether the board applied the wrong legal standard in approving the Interested Parties' request for a special-use permit. In the district court, Petitioners asserted that when applying the standard of “more advantageous to the community,” the board did not act in accordance with the law because the board failed to specifically find that (1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property[,] as stated by our Supreme Court in ACP, 2008–NMSC–025, ¶ 30, 144 N.M. 99, 184 P.3d 411, and reiterated in Albuquerque Commons Partnership v. City Council of Albuquerque, 2009–NMCA–065, ¶ 16, 146 N.M. 568, 212 P.3d 1122, rev'd on other grounds, 2011–NMSC–002, 149 N.M. 308, 248 P.3d 856.

{8} According to the district court, the board's response in the district court was that ACP did not apply to special-use permits but applied to zone map downzoning circumstances only, as reflected by the fact that the findings required in ACP were preceded by the following reference to downzoning from ACP, 2008–NMSC–025, ¶ 30, 144 N.M. 99, 184 P.3d 411.

[The resolution] adequately accommodates the need for planning and zoning flexibility. Therefore, without adopting any absolute standards or mechanical tests, we recognize that a municipality may be able to justify an amendment that downzones a particular property by demonstrating that the change is “more advantageous to the community, as articulated in the [c]omprehensive [p]lan or other [c]ity master plan.” The proof in such a case would have to show, at a minimum, that “... there is a public need for a change....”

(Emphasis added.) (Citations omitted.) The district court indicated further that the board had asserted that the word such, found in the last sentence of the quoted material, can only refer to a downzoning case because of the language that precedes the word. The district court read the board's position to be that, because the case before the board did not involve downzoning, Interested Parties did not have to meet the additional criteria in ACP in order to obtain a special-use permit. And the district court noted that the board distinguished ACP on the ground that Interested Parties were not seeking a zone change but were merely seeking a special-use permit under the existing zoning of A–1, and the court further noted that after two years the special use would cease to be and the site would revert to A–1 zoning without a special-use overlay.

{9} The district court's rationale for affirming the findings of the board and the board's decision was based in part on its analysis of Miller v. City of Albuquerque, 89 N.M. 503, 554 P.2d 665 (1976), and a later case relating to zoning. Miller involved review of a zone change approved by a city commission, and it set out a standard for zone changes called the “change-or-mistake rule.” See id. at 506, 554 P.2d at 668 (“The fundamental justification for an amendatory or repealing zoning ordinance is a change of conditions making the amendment or repeal reasonably necessary to protect the public interest. Also, a zoning amendment may cover and perfect previous defective ordinances or correct mistakes or injustices therein.” (internal quotation marks and citation omitted)). The district court stated that the later decision, W. Old Town Neighborhood Ass'n v. City of Albuquerque, 1996–NMCA–107, ¶ 23, 122 N.M. 495, 927 P.2d 529, superseded by statute on other grounds as stated in C.F.T. Dev., LLC v. Bd. of Cnty. Comm'rs, 2001–NMCA–069, 130 N.M. 775, 32 P.3d 784 1, clarified that Miller did not apply only to rezonings and downzonings. The district court noted that “the ‘more advantageous to the community’ standard” was “the subsequently added third element” to the change-or-mistake rule.

{10} Turning then to ACP, the district court quoted ACP's statement that “New Mexico courts have not limited the Miller rule's applicability to piecemeal rezonings of single parcels, but have extended it to downzonings done pursuant to a comprehensive plan, and even to an upzoning of a specific property upon petition of the landowner.” ACP, 2008–NMSC–025, ¶ 26, 144 N.M. 99, 184 P.3d 411. The district court concluded that [a] special-use permit, however, is neither a rezoning, a downzoning or an upzoning [,] referring to language in Embudo Canyon Neighborhood Ass'n v. City of Albuquerque, 1998–NMCA–171, ¶ 16, 126 N.M. 327, 968 P.2d 1190, superseded by statute on other grounds as stated in C.F.T. Dev., LLC, 2001–NMCA–069, ...

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