Smith v. Board of County Com'rs

• Decision Date: 22 October 2003
• Docket Number: No. 22,766.,22,766.
• Citation: 134 N.M. 737,82 P.3d 547,2004 NMCA 1
• Parties: Gerald L. SMITH, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, County of Bernalillo, Defendant-Appellee, Henry R. Westrich, et al., Intervenors-Appellees.
• Court: Court of Appeals of New Mexico

82 P.3d 547

134 N.M. 737

2004 NMCA 1

Gerald L. SMITH, Plaintiff-Appellant, v.BOARD OF COUNTY COMMISSIONERS, County of Bernalillo, Defendant-Appellee,Henry R. Westrich, et al., Intervenors-Appellees.

No. 22,766.

Court of Appeals of New Mexico.

October 22, 2003.

Certiorari Granted December 19, 2003.

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

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

C.D. Carter, III, Carter Law Firm, P.C., Albuquerque, NM, Christopher D. Imlay, Booth, Freret, Imlay & Tepper, P.C., Silver Spring, MD, for Amicus Curiae.

Certiorari Granted, No. 28,374, December 19, 2003.

OPINION

WECHSLER, Chief Judge.

{1} The opinion filed in this case on September 23, 2003 is hereby withdrawn and the following submitted therefor.The motion for rehearing is otherwise denied.

{2} In this appeal, we consider the proper interpretation of the Bernalillo County zoning ordinance and a related limited federal preemption doctrine as applied to the placement of two 140-foot amateur radio antenna towers.Plaintiff was given stop work notices after initially receiving approval by the County for construction of the towers.He responded by filing a declaratory judgment action in district court.After remanding the matter for administrative proceedings, the district court denied Plaintiff's requested relief, concluding that the County properly exercised its authority under the zoning ordinance and did so in a manner that did not violate the federal preemption doctrine.Plaintiff appeals, arguing that (1) amateur radio antenna towers are a permissive use not subject to height restrictions; (2) recent amendments to the zoning ordinance do not prohibit the towers; and (3) the County and district court interpretation of the zoning ordinance is invalid as a matter of law because it allows administrative exercise of legislative authority and constitutes a violation of the limited federal preemption doctrine.We affirm.

Factual and Procedural Background

{3}Plaintiff has been involved with amateur radio operations for over 40 years and is licensed as an amateur radio operator by the Federal Communications Commission(FCC).Over the years, he has used his skills to provide emergency communications and assistance to governmental entities and military personnel.Plaintiff moved to New Mexico in 1999 and set out to find property that would allow him to continue to pursue his hobby.He testified that he looked for property that did not have any restrictions in the nature of terrain obstructions, governmental regulations, or covenants.Plaintiff also spoke with a County employee, who assured him that there would be no height restrictions.In addition, Plaintiff obtained a copy of the zoning manual, which he interpreted to specifically exclude height restrictions on amateur radio towers.With this research, in July 1999, Plaintiff purchased five acres and a home in the A-2 (rural residential) zone in the East Mountain area north of Edgewood.

{4} After purchasing the property, Plaintiff 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 towers that would each be 130 feet high, topped by 10-foot masts and secured by multiple guy wires and able to support numerous Yagi antennas.Yagi antennas are similar in design to television antennas, with a horizontal boom and a number of horizontal elements extending perpendicular to the boom.Plaintiff testified that the boom and elements could be 35 feet in length.Plaintiff testified that he chose these specifications so that he could have a strong world-wide radio signal that could also be used for local emergency communications.He also intended to participate in contests that are regularly scheduled among amateur radio enthusiasts.

{5} The County approved the plan in August 1999, and several County employees visited the site in October 1999 to confirm that the towers were being constructed in compliance with the specifications that Plaintiff submitted.Plaintiff was told that the construction was in compliance and could proceed.By late November 1999, some neighbors began to complain to County officials about the construction of the towers.In early December, County officials again returned to the property, but this time they issued a stop work notice.The County officials did not specify the reason for the notice, except for the claim that the construction "does not comply with zoning ordinance."

{6}Plaintiff obtained counsel and filed an administrative appeal of the stop work notice, thereby triggering a stay of the notice under the County building code.Without hearing the appeal, the County issued a second stop work notice, from which Plaintiff filed another appeal, which also was never heard.Plaintiff completed construction of the towers while he pursued relief in district court.The district court denied the County's request for a temporary restraining order.

{7}Plaintiff originally made claims for declaratory relief, inverse condemnation, and damages.He ultimately limited his request to declaratory relief, and the district court remanded the matter to the County Planning Commission(CPC) so that a factual record could be developed.Specifically, the district court instructed the CPC to consider whether the towers satisfied that part of the ordinance which allowed uses that were "customarily incidental" to the primary use of the property.After a hearing, the CPC agreed that the towers were in violation of the zoning ordinance, making these findings:

1.This case is a remand from District Court to allow the County Planning Commission to review an administrative decision made regarding construction of two 140-foot amateur radio antennas at 44 Crestview Lane.

2.The zoning regulations regarding amateur radio antennas were amended by the Bernalillo County Board of County Commissioners in May 1999; these amendments became effective in June 1999.

3.With the amended zoning language, amateur radio antennas could no longer be considered as incidental uses in the A-2 zone, but would require a zone change or issuance of a Special Use Permit for a Specific Use.

4.The permit issued for construction of the two amateur radio antennas was issued in error, since the Zoning Codeamendment regarding these antennas took effect approximately six weeks prior to submittal of the building permit application.

5.In order to construct the two amateur radio antennas, the owner would have to obtain either a change of zoning or a Special Use Permit for a Specific Use.

6.To date, the applicant has not applied for a zone change which would allow for the placement of the antennas on this site.

7.Two 140-foot amateur radio antennas and their related equipment are not an incidental use on the subject property.

8.Since the applicant has not applied for the proper zoning for this use and allowed this body to consider such a request, he has failed to demonstrate that the County has not reasonably accommodated his request.

9. A-2 zoning requires a higher standard of preservation of natural and scenic values than some other zones.

10.The federal guidelines speak in terms of reasonableness in height considerations.

11.The height of these towers is unreasonable for an A-2 rural zone as a customarily incidental use.

{8}The district court issued findings of fact and conclusions of law that were essentially consistent with those made by the CPC.Plaintiff appealed to this Court, and we note that the federal preemption arguments made by Plaintiff have been supplemented by an amicus curiae brief filed by the American Radio Relay League, Incorporated, which represents the interests of 650,000 radio amateurs licensed by the FCC.

Standard Of Review

{9}We initially address the nature of this appeal.This case was not before the district court as an appeal of a final administrative decision under NMSA 1978, § 39-3-1.1(1999).The district court remanded this case to the CPC for a factual determination.It thereby created a proceeding within a proceeding in which the CPC issued findings after a hearing based on its record.The district court thereafter decided the issues before it affording deference to the CPC's interpretation of the zoning ordinance contained in the Bernalillo County Code.The parties do not argue that this case should be treated as an administrative appeal under Section 39-3-1.1, and we do not do so.

{10}The parties dispute the applicable standard of review.Plaintiff argues that the interpretation of an ordinance involves the same rules of construction that apply to statutes and calls for de novo appellate review.SeeRutherford v. City of Albuquerque,113 N.M. 573, 574, 829 P.2d 652, 653(1992).The County disputes that a de novo standard of review applies, referring us to cases recognizing a deferential review of administrative interpretation of ambiguous language in an ordinance.See, e.g., High Ridge Hinkle Joint Venture v. City of Albuquerque,119 N.M. 29, 38, 888 P.2d 475, 484(Ct.App.1994)(Hinkle I);West Bluff Neighborhood Ass'n v. City of Albuquerque,2002-NMCA-075, ¶ 41, 132 N.M. 433, 50 P.3d 182,overruled on other grounds byRio Grande Chapter of Sierra Club v. N.M. Mining Comm'n,2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806.We agree that an administrative interpretation of ambiguous language might, over time, bind the agency to a particular construction of the ordinance.SeeHigh Ridge Hinkle Joint Venture v. City of Albuquerque,1998-NMSC-050, ¶ 9, 126 N.M. 413, 970 P.2d 599(Hinkle II).

{11} In its reply brief, Plaintiff argues that the County is not entitled to anything less than a de novo review because its interpretation of the zoning ordinance was a policy determination without any administrative precedent.We only partially agree.The...