State ex rel. Huning v. Los Chavez Zoning Commission

• Decision Date: 22 February 1982
• Docket Number: No. 13612,13612
• Citation: 641 P.2d 503,1982 NMSC 24,97 N.M. 472
• Parties: STATE of New Mexico, ex rel. John L. HUNING, Edeal Dairy, Inc., Huning Land Trust, Nicholas Duran de Chavez Company and Johanna C. Othart, Plaintiffs-Appellants, v. LOS CHAVEZ ZONING COMMISSION, Composed of: J. Phillip Castillo, Jose I. Garcia, Wilma Berlier, Mitzi Smith and Calvin Boliver, and each of them, Defendants-Appellees, and BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF VALENCIA, Plaintiff-Appellee, v. LOS CHAVEZ ZONING COMMISSION, et al., Defendants, and Edeal Dairy, Inc., et al., Cross-Claimants-Appellants.
• Court: New Mexico Supreme Court

Page 503

641 P.2d 503

97 N.M. 472

STATE of New Mexico, ex rel. John L. HUNING, Edeal Dairy,

Inc., Huning Land Trust, Nicholas Duran de Chavez

Company and Johanna C. Othart, Plaintiffs-Appellants, v. LOS CHAVEZ ZONING COMMISSION, Composed of: J. Phillip

Castillo, Jose I. Garcia, Wilma Berlier, Mitzi

Smith and Calvin Boliver, and each of

them, Defendants-Appellees, and BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF VALENCIA, Plaintiff-Appellee, v. LOS CHAVEZ ZONING COMMISSION, et al., Defendants, and Edeal Dairy, Inc., et al., Cross-Claimants-Appellants.

No. 13612.

Supreme Court of New Mexico.

Feb. 22, 1982.

Keleher & McLeod, Robert H. Clark, John B. Tittmann, Albuquerque, for plaintiffs-appellants.

Thomas C. Esquibel, Dist. Atty., Louis E. Valencia, Chief Deputy Dist. Atty., Los Lunas, for defendants-appellees.

OPINION

FEDERICI, Justice.

This is an appeal from the District Court of Valencia County. Plaintiff, State ex rel. Huning, et al. (appellants) filed a quo warranto action against defendants (appellees) challenging the validity of the Los Chavez Zoning District. Cross-claimants, Edeal Dairy, Inc., et al., sought a declaratory judgment that the Los Chavez Zoning District is invalid and that Sections 3-21-15 through 3-21-26, N.M.S.A.1978, are unconstitutional. At trial, the cases were consolidated as a quo warranto proceeding. The trial resulted in judgment for defendants against plaintiffs and cross-claimants who now appeal. We reverse.

Appellees sought to form the Los Chavez Zoning District pursuant to Sections 3-21-15 through 3-21-26. Appellants challenge the validity of the district claiming that 51% of the electors in the proposed zoning district did not sign the petition forming the zoning district as required by Section 3-21-18. This section provides in part:

A special zoning district is created in an area outside the boundary limits of an incorporated municipality when:

....

B. at least fifty-one percent of the registered electors residing in the area sign a petition requesting a special zoning district; ....

The issue on appeal is whether the petition submitted pursuant to Section 3-21-18 contained 51% of the signatures of the registered electors residing in the proposed zoning district.

With reference to the number of valid signatures on the petition, the record shows that the proposed district encompasses a portion of Precincts 7 and 19 in Valencia County. The petition, pursuant to Section 3-21-18, was filed on February 4, 1976, and contained 479 signatures. Uncontroverted evidence shows that of 479 signatures contained in the petition, 43 are invalid because 8 are duplicate, 2 are illegible and 33 are signatures of unregistered voters. Subtracting 43 from 479, we conclude that the petition contained 436 valid signatures. The question is whether this number of signatures represents 51% of the registered electors in the proposed district.

With reference to the number of registered electors, the record discloses that as of January 26, 1976, the voter lists for Valencia County showed that 907 electors lived within Precincts 7 and 19. Appellees claim that 123 names should be deducted from the 907 figure based on the testimony of two witnesses, Mr. Griego and Mrs. Berlier. Appellants do not challenge the testimony of Mr. Griego that 12 names should be deducted, but they do challenge the testimony of Mrs. Berlier. Mrs. Berlier is a long-time resident of, and former precinct worker in, the area involved. She testified that 111 names appearing on the voter lists for Precincts 7 and 19 should be discounted as persons not residing within the proposed zoning district. Appellants argue that their objections to Mrs. Berlier's testimony were sustained as to 10 electors and that her testimony was insufficient as to 68 additional electors.

As to the 68 electors, appellants argue that Mrs. Berlier testified only that their addresses, as they appeared on the voting lists, were not within the proposed district, or that the individuals appearing on the voting lists had moved out of the proposed district. Appellants claim that this evidence is insufficient to establish "residence" under Section 1-1-7, N.M.S.A.1978, which defines residence in terms of where a voter intends his voting residence to be.

We disagree that the Berlier testimony is insufficient. It is obviously difficult to prove intent by direct evidence. Circumstantial evidence of intent is sufficient in this case if it can be said that it amounts to substantial evidence. Evidence is substantial if a conclusion of the trier of fact can be reasonably based upon it. Grace v. Oil Conservation Commission of New Mexico, 87 N.M. 205, 531 P.2d 939 (1975). We conclude that the Berlier testimony was substantial evidence under the circumstances of this case. Mrs. Berlier testified from personal knowledge that many persons who signed the petition did not live within the proposed zoning district. In the absence of any showing to the contrary, it can be...