Smith v. BOARD OF COUNTY COM'RS

• Decision Date: 22 April 2005
• Docket Number: No. 28,374.,28,374.
• Citation: 110 P.3d 496,2005 NMSC 12,137 N.M. 280
• Parties: Gerald L. SMITH, Plaintiff-Petitioner, v. BOARD OF COUNTY COMMISSIONERS, COUNTY OF BERNALILLO, Defendant-Respondent, and Henry R. Westrich, et al., Intervenors-Respondents.
• Court: New Mexico Supreme Court

110 P.3d 496

137 N.M. 280

2005 NMSC 12

Gerald L. SMITH, Plaintiff-Petitioner, v. BOARD OF COUNTY COMMISSIONERS, COUNTY OF BERNALILLO, Defendant-Respondent, and Henry R. Westrich, et al., Intervenors-Respondents.

No. 28,374.

Supreme Court of New Mexico.

April 22, 2005.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Albuquerque, for Petitioner.

Tito D. Chavez, County Attorney, Patrick F. Trujillo, Assistant County Attorney, Albuquerque, for Respondent.

Carter Law Firm, P.C., Carroll D. Carter, III, Albuquerque, Booth, Freret, Imlay & Tepper, P.C., Christopher D. Imlay, Silver Spring, MD, for Amicus Curiae American Radio Relay League, Incorporated.

Rhodes & Salmon, P.C., Hazen H. Hammel, Albuquerque, for Amicus Curiae Peter Naumburg.

OPINION

BOSSON, Chief Justice.

{1} Plaintiff Gerald Smith applied for and received a permit to build two 130-foot amateur radio towers on his residential property in the East Mountain area of Bernalillo County, New Mexico. The zoning ordinance did not expressly prohibit or restrict construction of the towers in that location, and supplementary regulations specifically exempted radio towers from height restrictions. After neighbors complained, the County changed its mind, tried unsuccessfully to stop the construction, and devised new reasons why Plaintiff's radio towers should not be allowed. The district court agreed with the County's rationale but also adopted another reason for pro hibiting the towers. On appeal, the Court of Appeals rejected the first rationale but sided with the County on the second. Smith v. Bd. of County Comm'rs, 2004-NMCA-001, 134 N.M. 737, 82 P.3d 547. We granted certiorari and reverse.

BACKGROUND

{2} Plaintiff is a federally licensed amateur radio operator who has engaged in "ham" radio as a hobby for more than forty years. In 1998, Plaintiff moved to New Mexico primarily to find a piece of residential property suitable for the construction of an amateur radio antenna system. He wanted to build a system capable of achieving a strong signal so that he could communicate across the world, assist with local emergency operations, and participate in amateur radio contests. Plaintiff conducted extensive research looking for property with the right terrain and not subject to covenants or zoning restrictions that would limit the height of amateur radio antenna towers.

{3} After finding a five-acre parcel with a home in the East Mountain area of Bernalillo County that was zoned A-2 (rural residential), Plaintiff consulted several Bernalillo County zoning employees and officials, including the zoning director, about his desire to build two 130-foot towers. The County assured him that amateur radio towers were permitted on A-2 zoned property and that a regulation specifically exempted them from height restrictions. Plaintiff was told he only needed to apply for a building permit

{4} To confirm the County's interpretation, Plaintiff and his attorney both studied the Bernalillo County zoning code. According to the code, the A-2 zone includes as permissive uses one dwelling for every two acres and any accessory building or structure "customarily incidental" to "rural residential activities." See Bernalillo County, N.M., Zoning Ordinance §§ 7(B)(1)(a), (d), 8(B)(1)(a) (1996). The ordinance restricts the height of structures in the A-2 zone to twenty-six feet, except as provided in the supplementary height regulations. Id. § 8(C). The supplementary regulations expressly exempt from the height limitation a number of structures, including amateur radio towers. Id. § 22(B)(1) (stating that height regulations shall not apply to amateur radio towers). The ordinance does not further define "permissive use" or "customarily incidental," nor does it provide standards for determining whether something is a permissive use or is customarily incidental. The ordinance does, however, define "incidental use" as "[a] use which is appropriate, subordinate, and customarily incidental to the main use of the lot." Id. § 5.

{5} Plaintiff also reviewed amendments to the zoning ordinance that went into effect in June 1999. Designated Ordinance 1999-6, the amendments were passed to regulate commercial cellular towers in Bernalillo County. See Bernalillo County, N.M., Zoning Ordinance 1999-6 (1999). Prior to the amendments, the County allowed an "antenna" up to sixty-five feet as a permissive use in an office and institutional zone (O-1). See Zoning Ordinance § 12(B)(1)(a)(1). The supplementary height regulations, however, provided that amateur radio antennas were exempt from height restrictions, which left them unregulated in the O-1 zone. See id. § 22(B)(1)(a). The 1999 amendments clarified that amateur radio antennas were now subject to the same height restrictions that apply to other towers in the O-1 zone. See Ordinance 1999-6 § 12 (allowing "antenna amateur radio" up to sixty-five feet as a permissive use, or up to 100 feet as a conditional use) (emphasis added). However, Ordinance 1999-6 only made changes to language in the O-1 zone. The supplementary height regulations were not amended, nor were changes made to the residential zones. Specifically, the language in Ordinance 1999-6 did not amend or modify the A-2 zone in which Plaintiff was interested for his prospective home. Accordingly, Plaintiff and his attorney concluded that, even after the amendments, the ordinance imposed no height restrictions on amateur radio towers in the A-2 zone.

{6} Based on the County's representation and his own research, Plaintiff bought the property and applied for a building permit for the two towers. He submitted a site plan that was prepared by a licensed professional engineer. The plan called for two 130-foot towers with ten-foot masts, which would support multiple antennas and be secured by guy wires. The County approved the plan and issued a building permit in August 1999, which Plaintiff posted on his property. In October 1999, county employees twice inspected the construction and told Plaintiff he was in compliance with the site plan.

{7} In late November 1999, some of Plaintiff's neighbors began to complain to County officials about the height of the towers under construction. At first, the County told the neighbors that the building permit was in order and the time to appeal had expired, fifteen days after the permit was issued. On December 8, 1999, however, County officials arrived at Plaintiff's house with a stop work notice. The notice did not specify the nature of the problem but simply stated that the construction "does not comply with zoning ordinance." According to Plaintiff, the officials were not able to elaborate on the nature of the violation, but said they had received complaints from neighbors and needed some time.

{8} Plaintiff hired a land-use attorney who wrote two letters to the County demanding a legal reason for the stop work notice. Although County officials spoke with Plaintiff several times, it was not until January 28, 2000, that Plaintiff received a written response from the County explaining its position. In the letter, the county attorney stated that, due to the amendments made to the O-1 non-residential zone in June 1999 (Ordinance 1999-6), amateur radio towers were no longer a permissive or conditional use on Plaintiff's property. Thus, the permit, which was approved six weeks after those amendments became law, was now supposedly issued in error.

{9} Sanford Fish, the director of the zoning, building and planning department, testified that when he first spoke with Plaintiff about his plans he told Plaintiff that amateur radio towers were allowed as permissive or incidental uses and that language in the ordinance exempted towers from height restrictions. Fish admitted that he knew about the 1999 amendments when he first advised Plaintiff about his towers. It was not until Plaintiff's neighbors complained in phone calls, e-mails, and letters that the County decided to reassess the ordinance in light of the amendments "to make sure that we weren't missing anything." Fish testified that after a detailed review he "realized" the effect of the amendments in the O-1 zone on amateur radio towers in the A-2 zone. Now that amateur radio antennas were expressly enumerated as a permissive or conditional use in the non-residential zones, he said, such towers could no longer be considered incidental uses in the residential zones. It was now his opinion that a use expressly listed in the O-1 zone could not be a customarily incidental use in the lower A-2 zone. This was the first time Fish came to such an opinion, and it led to a result directly contrary to the position the County had previously taken.

{10} In response to the stop work notice, Plaintiff filed an administrative appeal. Interpreting the appeal as triggering a stay of the notice under the county building code, Plaintiff continued building his towers. The County issued a second stop work notice "under emergency conditions," which Plaintiff also appealed. Neither appeal was ever heard. To force Plaintiff to stop building his towers, the County requested a temporary restraining order, which the district court denied.

{11} Meanwhile, Plaintiff sought a declaratory judgment in district court that would uphold the permit and withdraw the stop work notices. In Plaintiff's view, which was previously the County's view as well, amateur radio towers are customarily incidental to residential use because they are used in conjunction with a home-based hobby. Thus, amateur radio towers qualify as a permissive use in the A-2 zone and are not subject to height restrictions in the A-2 zone. To Plaintiff, the express exclusion of amateur radio towers from height restrictions reinforced the intent that towers are considered permissive uses. Otherwise, towers would not be listed.

{12} The district court denied Plaintiff's motion for summary judgment, then remanded the matter to the Bernalillo County Planning...