State ex rel. Anaya v. Select Western Lands, Inc.

• Decision Date: 20 December 1979
• Docket Number: No. 3890,3890
• Citation: 613 P.2d 425,94 N.M. 555,1979 NMCA 161
• Parties: STATE of New Mexico ex rel., Toney ANAYA, Attorney General, Plaintiff-Appellee, v. SELECT WESTERN LANDS, INC., a New Mexico Corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 425

613 P.2d 425

94 N.M. 555

STATE of New Mexico ex rel., Toney ANAYA, Attorney General Plaintiff-Appellee, v. SELECT WESTERN LANDS, INC., a New Mexico Corporation Defendant-Appellant.

No. 3890.

Court of Appeals of New Mexico.

Dec. 20, 1979.

Writ of Certiorari Quashed May 15, 1980.

Fred M. Standley, Robert Suzenski, Santa Fe, for defendant-appellant

Jeff Bingaman, Atty. Gen., Joseph F. Canepa, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Earl W. Potter, Santa Fe, amicus curiae.

OPINION

WALTERS, Judge.

Defendant, Select Western Lands, Inc., appeals district court convictions after a de novo hearing on defendant's appeal from magistrate court, on eighteen charges of violating the County Subdivision Act. (§§ 47-6-1, et seq., N.M.S.A.1978). The trial court, sitting without a jury, imposed the maximum fine of $1,000 on each of the eighteen counts. Seven other counts were dismissed either in the magistrate or district court proceedings because of statute of limitation defenses.

In 1969 Select Western acquired 3,400 acres of land near Cerrillos known as the Gene West Ranch. During 1975 and 1976, without preparing or filing a plat map, or otherwise adhering to the Subdivision Act, defendant sold forty separate parcels to forty separate purchasers. Most parcels were approximately forty acres in size.

The portions of the Act pertinent to this appeal are as follows:

§ 47-6-2(G):

"subdivide" means to divide the surface area of land into a subdivision;

§ 47-6-2(H):

"subdivider" means any person creating a subdivision, or any person engaged in the sale or lease of subdivided land which is being sold or leased by the owner in the ordinary course of business;

§ 47-6-2(I):

"subdivision" means an area of land within New Mexico, the surface of which has been divided by a subdivider into five or more parcels for the purpose of sale or lease. Subdivision does not include:

(1) any land retained by the subdivider after subdivision but which has not been divided for a subdivision;

§ 47-6-2(N):

"type-four subdivision" means any subdivision containing twenty-five or more parcels, each of which is ten acres or more in size; and

§ 47-6-2(O):

"type-five subdivision" means any subdivision containing not less than five parcels and not more than twenty-four parcels, each of which is ten acres or more in size.

§ 47-6-3. Subdivision; description

Any person desiring to subdivide land shall have a plat of the proposed subdivision certified by a registered, licensed surveyor of New Mexico. The plat shall define the subdivision and all roads by reference to permanent monuments. The plat shall also accurately describe each parcel, number each parcel in progression, give its dimensions and the dimensions of all land dedicated for public use or for the use of the owners of parcels fronting or adjacent to the land. Descriptions of parcels by number and plat designation are valid in conveyances and valid for the purpose of taxation. § 47-6-8. Requirements prior to sale or lease.

A. It is unlawful to sell or lease land from within a subdivision unless the subdivision plat is approved by the board of county commissioners and on file with the clerk of the county in which the subdivision is located. Where a subdivision lies within more than one county, the subdivision plat must be approved by the board of county commissioners of each county in which the subdivision is located.

The court found the defendant "sold a 'type-four' subdivision" within the meaning of § 47-6-2(N).

Select Western purportedly raises seven issues suggesting five basic contentions:

(1) Insufficient evidence to establish either defendant's desire to subdivide or any conduct constituting subdivision;

(2) The legislature's failure to enumerate standards for county approval constitutes unlawful delegation of legislative power; and, further, that the Act is an unconstitutional invasion of the right to alienate property, is void for vagueness, and violates due process and equal protection of the law;

(3) The county's failure to adopt approval procedures is a bar to prosecution;

(4) Failure to prove county subdivision regulations bars prosecution for violation of them;

(5) The state and county are estopped to prosecute by reason of waiver, estoppel, laches and unclean hands.

We think the critical issue raised is set out in appellant's first point. In connection with that issue, the additional claim of vagueness because of the construction given to the statute by the county officials and the lower court, i. e., that the period over which the conduct of a land owner may be judged to determine whether or not he is a subdivider may extend "unto death," requires discussion.

At trial it was disclosed that the land was initially purchased by a land development corporation whose president had seventeen years of subdivision experience. Those prior subdivisions in another area of the state had been developed by required platting, filing of plats with the local governments, and registering the operations with various state and national agencies for interstate sales. Lots in those subdivisions were extensively advertised for sale. Defendant's original intention was to subdivide the Gene West Ranch into half-acre and acre parcels for future sales. After several years of indecision, however, and without pursuing any development plans, the ranch eventually was listed with a realtor for sale as one parcel or, if he was unable to sell the entire ranch, for sale in lots of not less than forty acres. The realtor never solicited a sale and never advertised any portion of it for sale. In every case of the alleged violations, he was contacted by prospective purchasers who had learned of the possible availability of undeveloped property by word-of-mouth information from others, and the purchasers selected the property to be conveyed by describing the features of the area they wished to purchase. The State offered no evidence to contradict those facts. Evidence was introduced that defendant sold between twenty-four and forty parcels over a three-year period prior to the time charges were filed.

On March 1, 1976, the Santa Fe county engineer wrote Mr. Kirk, president of defendant company, asking for information regarding the sales so that a determination could be made whether the company was in violation of the Subdivision Act. Kirk responded immediately and had the company's realtor make all requested data available to the county engineer. At a meeting in the realtor's office within a day of the March 1st letter, the sales transactions were examined; the engineer was told that no subdivision was contemplated and thus no subdivision plat had been prepared, and the realtor believed the engineer to be satisfied that defendant was not engaged in a subdivision operation. The engineer admitted that he did not tell anyone associated with the defendant corporation, after his review of defendant's activities, that the sales made were in violation of the law, and he did not request that a plat be filed.

Later in the year the county engineer again called Kirk and requested another meeting. On November 3rd Kirk and his attorney met in the engineer's office with the county engineer, the county attorney and the county manager. After discussing again the sales made by defendant, the county attorney was instructed to obtain an Attorney General's Opinion regarding the effect of the Subdivision Act on defendant's activities. Such an opinion was never sought nor received, but it is not disputed that Attorney General's Opinions No. 63-154 and No. 64-5, (1963-1964) N.M.Atty.Gen.Rep., Vol. 1, at 362; (1963-1964) N.M.Atty.Gen.Rep., Vol. II at 409, dealing with the interpretation of a similar subdivision law, would have exonerated defendant of any charge of forbidden activity under the evidence produced in this case. On March 31, 1977, criminal complaints for alleged violations of the Act were filed against defendant.

It is widely established that enactment of subdivision laws is a proper exercise of the legislature's police power for safeguarding the interest of the public against fraud, financial loss, and injury to public health and safety. See 3 Yokley, Zoning Law and Practice (4th ed.) 43, § 17-3, and authorities collected therein. However, since subdivision statutes are enactments in derogation of the common law constituting restrictions upon the free use of property, they are strictly construed against the governmental body attempting to enforce them. Gulf Oil Corp. of Pa. v. Warminster Township Bd. of Supervisors, 22 Pa.Cmwlth. 63, 348 A.2d 485 (1975); Henderson v. Zoning Appeals Bd., 328 So.2d 175 (La.App.), cert. den. 331 So.2d 474 (La.1976); Allen v. Adami, 39 N.Y.2d 275, 383 N.Y.S.2d 565, 347 N.E.2d 890 (1976); Groh v. Co. Comm'rs of Washington County, 245 Md. 441, 226 A.2d 264 (1967); Yokley, supra, at 102, § 17-14.

Applying the rule of strict construction, as we must, we think there are several grounds on which the convictions in this case must be reversed. To know whether or not one "subdivides" and is thus a "subdivider," it is necessary first to determine that the party charged is one "creating a subdivision, or . . . engaged in the sale or lease of subdivided land which is being sold or leased by the owner in the ordinary course of business." Sections 47-6-2(G), -(H), N.M.S.A.1978. A "subdivision" is created if the surface of an area of land "has been divided by a subdivider into five or more parcels for the purpose of sale or lease," except that "any land retained by the subdivider after subdivision which has not been divided for a subdivision" is not included in the definition of "subdivision." It is thus apparent at the outset that mere division of land is not sub division. There must be proof that at some time prior to alienation, there has been a division of one parcel into five or more, and that the dividing was done so that the smaller parcels could be sold or leased. The...