Romero v. Rio Arriba County Commissioners

• Citation: 2007 NMCA 004,149 P.3d 945
• Decision Date: 29 August 2006
• Docket Number: No. 24,147.,No. 24,180.,24,147.,24,180.
• Court: Court of Appeals of New Mexico
• Parties: Jerome C. ROMERO, Appellant-Petitioner/Cross-Respondent, v. Board of COUNTY COMMISSIONERS OF the County of RIO ARRIBA, Appellee-Respondent/Cross-Petitioner.

Page 945

149 P.3d 945

2007 NMCA 004

Jerome C. ROMERO, Appellant-Petitioner/Cross-Respondent, v. Board of COUNTY COMMISSIONERS OF the County of RIO ARRIBA, Appellee-Respondent/Cross-Petitioner.

No. 24,147.

No. 24,180.

Court of Appeals of New Mexico.

August 29, 2006.

Certiorari Granted, No. 30,057, November 29, 2006.

Scheuer, Yost & Patterson, P.C., Byron L. Treaster, Santa Fe, NM, for Petitioner/Cross-Respondent.

Rubin Katz Law Firm, Frank T. Herdman, Brenden J. Murphy, Santa Fe, NM, for Respondent/Cross-Petitioner.

OPINION

ROBINSON, Judge.

{1} The parties appeal from a district court order partially affirming and partially reversing the decision of the Rio Arriba County (County) Board of County Commissioners (Board) entered on May 30, 2003. Jerome Romero (Romero) claims that he is entitled to mine a 14.5-acre parcel of his land as a grandfathered, non-conforming use. On appeal, he claims that the district court erred in affirming the Board's decision that Romero is not entitled to mine 9.5 of the 14.5 acres. The Board also appeals, claiming that the district court erred in reversing the Board's determination that Romero was no longer entitled to mine 5 of the 14.5 acres, which were considered a grandfathered, non-conforming use in 1998. We reverse in part, affirm in part, and remand.

I. BACKGROUND

{2} Romero is the owner of a 37.964-acre parcel of land in Rio Arriba County. On August 31, 1995, the Board passed Ordinance No. 1996-1 entitled "Design and Development Regulation System" (Ordinance 1996-1). Under Ordinance 1996-1, a property owner with a legal, non-conforming use that predated the enactment of Ordinance 1996-1 was not required to obtain zoning approval. However, any enlargement, expansion, or extension of the non-conforming use was prohibited unless approved by the zoning committee.

{3} On February 27, 1998, Española Transit Mix (ETM), with authorization from Romero, notified the County Planning and Zoning Department (Department) of its proposal to "develop a sand and gravel material source" on 14.5 acres of the land owned by Romero. On March 18, 1998, the Department's Director held a hearing and approved gravel mining on 5 of the 14.5 acres as a grandfathered, non-conforming use. During a meeting held on April 29, 1998, after complaints from local residents, the Planning & Zoning Committee overturned the Director's decision. However, on May 28, 1998, the Board voted in favor of denying the appeal of the Director's decision. [RP 240-242] At a special meeting of the Board on July 15, 1998, after hearing the appeal of concerned citizens, the Board approved the grandfathered, non-conforming use of the 5 acres and reaffirmed that the Department would monitor the community's concerns. Local residents appealed the Board's decision to the district court, naming the County and Romero as defendants in Calabaza v. Rio Arriba Board of County Commissioners, No. D-0117-CV-0009801573. The Calabaza appeal was dismissed in October 1999.

{4} Romero did not appeal the findings of the Director and the Board that he was only entitled to mine 5 acres as a grandfathered use. However, with some encouragement from the Department and the County, Romero and ETM continued to seek the Board's approval to mine the additional 9.5 acres. On October 9, 1998, Romero filed a "Development Permit Application" with the Department, seeking approval to mine the additional 9.5 acres. He also submitted a "Storm Water Pollution Prevention Plan" and other information requested by the County.

{5} On August 26, 1999, the County adopted the "Rio Arriba County Design and Development Regulation System Ordinance 2000-01" (Zoning Ordinance), which designates the entire County as a county agricultural district. Permitted uses under the Zoning Ordinance include agriculture, single-family dwellings, public parks, mobile homes, and roadside vending stands with a County vendor's permit. Article 1, Section IX.A of the Zoning Ordinance provides that legal, non-conforming uses, existing as of the effective date of that Ordinance, "shall be allowed to continue but any enlargement, physical expansion or extension of the non-conforming use" is prohibited absent compliance with the requirements of the Ordinance.

{6} On August 26, 1999, the County adopted the "Rio Arriba County Sand and Gravel Mining Ordinance 2000-02" (Sand and Gravel Ordinance), containing regulations for existing and proposed gravel mining. Article 7 of the Sand and Gravel Ordinance requires existing, grandfathered mining and gravel operations to provide the Planning Director with a description of operations within ninety days after the effective date of the Ordinance. Article 7 also requires owners with established non-conforming mining uses to submit the documents required under Article 3, Section 2 of the Ordinance within 180 days of the effective date of the Ordinance. Article 3, Section 2 of the Sand and Gravel Ordinance, sets out performance and development standards that must be met to obtain a mining permit.

{7} On February 22, 2000, Romero sent a letter to the Department with accompanying documentation to comply with Article 3, Section 2 of the Sand and Gravel Ordinance, urging that the entire 14.5 acres be considered a grandfathered, non-conforming use under Article 7 of that Ordinance. At the same time, he submitted a Development Permit Application, requesting a zoning permit. The Department denied Romero's application and zoning permit request by letter decision on February 25, 2000. The Department's grounds for this denial were that (1) Romero failed to meet the ninety-day notice provision for grandfathered, non-conforming uses set forth in Article 7 of the Sand and Gravel Ordinance; (2) Romero's materials did not comply with Article 3, Section 2 of that Ordinance; (3) any additional mining would constitute physical enlargement and/or expansion; (4) there was no proof of a legal, non-conforming use; and (5) there had been no mining activity for a period of six months. The Department informed Romero that he needed to complete an application pursuant to the requirements of the Sand and Gravel Ordinance.

{8} Romero appealed the Department's denial to the Planning and Zoning Committee, which recommended that the Board uphold the Department's denial. Romero then appealed to the Board, which affirmed the denial on December 3, 2001. The Board concluded that (1) Romero was not engaged in mining on his property as of the effective date of the Zoning and Sand and Gravel Ordinances (2000 Ordinances); (2) Romero's proposal to mine and extract gravel would constitute an enlargement, expansion, and extension of any prior mining activity that may have occurred within the previously permitted 5-acre area; (3) the proposal would entail activities "substantially and materially different from intermittent hauling of materials from existing stockpiles"; (4) Romero's failure to comply with Article 7 of the Sand and Gravel Ordinance nullified any obligation of the County to pursue an investigation of a claim for non-conforming use; (5) the diminishing assets doctrine, assuming it is recognized in New Mexico, does not apply in this case because sand and gravel mining is not a non-conforming use on the property and because Romero lacked the intent to mine beyond the 5-acre area that was the subject of the 1998 permit; (6) the validity of the Ordinance 1996-1 is not relevant to Romero's appeal and, to the extent Romero is challenging the 1998 permit, the challenge is untimely; and (7) requiring Romero to comply with the 2000 Ordinances does not constitute an unconstitutional taking.

{9} Romero appealed to the district court pursuant to Rule 1-074 NMRA. The district court partially reversed and partially affirmed the Board's decision. It affirmed the Board's denial of mining on the additional 9.5 acres, finding that there was insufficient, contradictory evidence regarding any existing, non-conforming use on the 9.5 acres, and that any mining on these acres would constitute a new or expanded operation separate and apart from the non-conforming use established on the 5 acres. It reversed the Board's denial regarding the legal, non-conforming use on the grandfathered 5-acre sand and gravel operation, determining that Romero had not discontinued non-conforming use for the requisite six-month period. It also determined that the Board had received sufficient notice to comply with the description of operations required by Article 7 of the Sand and Gravel Ordinance.

{10} Romero filed a motion to amend, or for rehearing on the judgment, which was denied. Romero and the Board petitioned this Court for a writ of certiorari to review the decision of the district court. We granted the petitions and consolidated the cases for appeal.

II. DISCUSSION

{11} Romero raises five issues on appeal arguing that (1) the Ordinance 1996-1 is void for lack of substantial compliance with statutory publication and filing requirements; (2) because the Ordinance 1996-1 is void, the Board's 5-acre mining limit, imposed in March 1998, is also void; (3) the diminishing assets doctrine should be adopted by this Court to protect Romero's vested right to expand mining; (4) the district court erred in upholding the Board's decision on the ground that expansion of mining from 5 acres to 14.5 acres would have an adverse impact on the neighborhood when the Board's decision contained no such findings and conclusions; and (5) Romero has vested property rights, compensable under the New Mexico Constitution, that were damaged by the Board's illegal or improper land use decisions. The Board also appeals, claiming that the district court erred in reversing the Board's finding that Romero did not have a valid non-conforming use to mine 5 acres of his property at the time the 2000 Ordinances were adopted.

A. STANDARD OF REVIEW

{12} In reviewing a decision of an administrative agency, we apply the same statutorily-defined...