State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque

• Citation: 1994 NMSC 126,889 P.2d 185,119 N.M. 150
• Decision Date: 14 December 1994
• Docket Number: No. 21813,21813
• Parties: STATE of New Mexico, ex rel., VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, Kenneth M. Bull, Beverley Bull, Bill Douglas, Barbara Douglas, Beverly Goss, Frederick Gurule, Patricia Gurule, Robert Hall, Lorna Hall, Larry Harris, Terrence Keyes, Janice Keyes, David McArthur, Beverley McArthur, Maureen McGuinness, George Patterson, Connie Patterson, R.D. Robinett, Jr., Dorothy Robinett, Richard Robinson, Nancy Robinson, Katherine Rust, Lois Seibel, Tom Sorensen, Joann Sorensen, John Ulrich, Lisa Ulrich, Jack Whitten, and Stella Whitten, Plaintiffs-Respondents, v. CITY OF ALBUQUERQUE, Defendant-Petitioner.
• Court: Supreme Court of New Mexico

Page 185

889 P.2d 185

119 N.M. 150

STATE of New Mexico, ex rel., VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, Kenneth M. Bull, Beverley Bull, Bill Douglas Barbara Douglas, Beverly Goss, Frederick Gurule, Patricia Gurule, Robert Hall, Lorna Hall, Larry Harris, Terrence Keyes, Janice Keyes, David McArthur, Beverley McArthur Maureen McGuinness, George Patterson, Connie Patterson, R.D Robinett, Jr., Dorothy Robinett, Richard Robinson, Nancy Robinson, Katherine Rust, Lois Seibel, Tom Sorensen, Joann Sorensen, John Ulrich, Lisa Ulrich, Jack Whitten, and Stella Whitten, Plaintiffs-Respondents, v. CITY OF ALBUQUERQUE, Defendant-Petitioner.

No. 21813.

Supreme Court of New Mexico.

Dec. 14, 1994.

Rehearing Denied Jan. 26, 1995.

[119 N.M. 154] Robert White, City Atty., Edward R. Pearson, Asst. City Atty., Albuquerque, for petitioner.

Walker & van Heijenoort, William G. Walker, Albuquerque, for respondents.

Robert J. Aragon, Ron Sanchez, Albuquerque, for amicus curiae Neighborhood Ass'n.

Nicholas F. Persampieri, Jr., Albuquerque, for amicus curiae Sierra Club, et al.

OPINION

FROST, Justice.

The City of Albuquerque (City) proposes to build the Montano Bridge across the Rio Grande River. The Village of Los Ranchos de Albuquerque (Village) seeks to prevent construction of the bridge, claiming it will be a public nuisance in fact. We conclude that (1) within specific limits, the planning and construction of municipal public works projects are subject to review by the courts; (2) issues remain unresolved in establishing whether the Montano project is duly authorized; (3) if the law so provides, one municipality can establish its own public works project within another municipality; (4) anticipatory nuisance can in some circumstances be a valid cause of action against a municipal public works project; (5) but a public works project that is duly authorized cannot be an anticipatory public nuisance in fact.

I. FACTS

The Rio Grande River flows south passing through the City of Albuquerque. Parallel to the river and a short distance from its east bank runs the Albuquerque Riverside Drain--a ditch that carries runoff from the acequias or irrigation channels in the area. Abutting the Drain and north of the City limits lies the Village of Los Ranchos de Albuquerque, a municipality that was incorporated in 1958. The City seeks to build a bridge connecting Montano Street on the east side of the river with Coors Road on the west side. This Montano Bridge project would cut through the southern tip of the Village and is opposed by its residents.

The Montano project was initiated in the mid-1960s when the City began studies to determine the feasibility of constructing one or more crossings over the Rio Grande to facilitate travel between the east and west portions of the City. In 1965 the Major Street and Highway Plan showing a proposed future river crossing at Montano was presented to the City Council of Albuquerque. During the mid-1970s various agencies including the Albuquerque Planning Department and the Urban Transportation Planning and Policy Board (UTPPB) of the Middle Rio Grande Council of Governments of New Mexico made plans and studies and evaluated alternative sites for river crossings.

In January 1979 federal agencies first became involved when the UTPPB asked the Federal Highway Administration (FHWA) for help in preparing an Environmental Impact Statement (EIS) though the Montano project did not legally require one. The FHWA took an active role in the lengthy and complex preparation of the EIS which took more than four years to complete.

Meanwhile, in May 1980 the UTPPB, in conjunction with the New Mexico State Highway Department, evaluated various bridge sites. The UTPPB also appointed a citizens advisory committee and a government agency committee and held public hearings. By November 1980 the UTPPB issued its Long Range Major Street Plan which concluded two bridges were needed: one at Montano Road and one further north connecting with a road called Paseo del Norte. Construction of the Paseo Bridge was completed in 1986.

In November 1982 the Middle Rio Grande Conservancy District (Conservancy District) and Bernalillo County each agreed to permit the City to annex properties they held within the Village boundary. Soon thereafter, on December 12, 1982, the City passed an ordinance annexing both properties. This had the effect of placing the entire Montano Bridge right-of-way--including the part that passed through the Village--within the City limits. The legality of this annexation was upheld by Clark v. City of Albuquerque, No. 9625, slip op. at 2-3 (N.M.Ct.App. Aug. 9, 1988), cert. denied, 107 N.M. 587, 761 P.2d 1292 (1988).

As mentioned above, the federally assisted EIS took more than four years to complete and on September 16, 1983, a Final Environmental Impact Statement for the river crossings project was approved by the FHWA. The City then programmed a general obligation bond for $4.2 million for general road improvements that was approved by the City voters in 1983.

In January 1984 the City announced its intention to proceed with the Montano project and on August 30 of the same year Village of Los Ranchos de Albuquerque v. Barnhart was filed in federal court. This case, appealed as 906 F.2d 1477 (10th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991), established that federal involvement in the Montano project was not sufficient to warrant protection under various federal environmental and historic preservation statutes.

An additional $6.1 million earmarked for the project was approved by City voters in 1985. Prior to beginning the project, the City applied for a permit from the United States Army Corps of Engineers (Corps) to construct the bridge. The permit is known as a "404 Permit" because it is required under a statute enacted as Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 884 (1972) (codified as amended at 33 U.S.C. Sec. 1344 (1988, Supp. IV 1992 & Supp. V 1993)). The 404 Permit was necessary because construction of the bridge will require fill materials to be temporarily placed in navigable waters of the United States. Section 1344(a).

Because the Montano project would affect properties included in the National Register of Historic Places, the Corps, on June 6, 1987, entered into a Memorandum Agreement with the New Mexico State Historic Preservation Office. Among other matters, the Memorandum agreed that the 404 Permit would consider the impact of the project on historic and archaeological sites, would limit the bridge to two lanes, prohibit heavy commercial traffic, and would mandate the construction of noise barriers. A month later, on July 6, 1987, the 404 Permit was issued. In addition to the matters in the Memorandum, the Permit specified the methods of dredging and filling the Rio Grande River, indicated the kinds and placements of pilings, and required completion of the project by December 31, 1995. Special provisions were included to assure that the project avoid as much as possible the destruction of the bosque--the small forests of cotton woods and other vegetation that border the Rio Grande. The bridge will destroy about four acres of the 800 acres of bosque and divide it into two parts. The Permit required the revegetation and installation of brush piles as well as the establishment of "mitigation lands" elsewhere. In federal court the Village challenged the 404 Permit and the City's compliance with various federal laws and regulations. The Village's claims were rejected. Village of Los Ranchos de Albuquerque v. Marsh, 947 F.2d 955, 1991 WL 216536 (10th Cir.1991), aff'd on reh'g, 956 F.2d 970 (1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 59, 121 L.Ed.2d 27 (1993).

II. PROCEEDINGS

This case commenced on April 4, 1989, when the Village, together with a number of individual citizens, filed suit for injunctive relief to halt the Montano project. The allegations included a claim that the bridge constituted a public nuisance. On June 16, 1989, the district court, agreeing that the bridge presented potential harm, issued a preliminary injunction. The Court of Appeals, on September 8, 1989, granted an interlocutory appeal to consider six questions certified to it by the district court. Among the Court's conclusions in City of Albuquerque v. State ex rel. Village of Los Ranchos de Albuquerque, 111 N.M. 608, 611-18, 808 P.2d 58, 61-68 (Ct.App.1991), cert. denied, 113 N.M. 524, 828 P.2d 957 (1992) [hereinafter City v. Village I ], were findings that the project was not a nuisance per se, that the injunction should not have been issued, and that the New Mexico Prehistoric and Historic Sites Preservation Act, NMSA 1978, Secs. 18-8-1 to -8 (Cum.Supp.1989) (PHSPA), was inapplicable.

After further proceedings, the district court, on October 17, 1991, found that its jurisdiction was limited to dismissing the action and vacating the preliminary injunction. The Village appealed and the bridge once again came before the Court of Appeals. The Court affirmed dismissal of the claim of nuisance per se but found that a public works project could be subject to anticipatory abatement by injunction as public nuisance in fact. State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque, 119 N.M. 169, 173-74, 889 P.2d 204, 208-09 (Ct.App.1993) [hereinafter Village v. City II ]. The case was remanded to the district court to consider the Village's request to state a cause of action based upon nuisance in fact and the City's alleged failure to comply with applicable statutes, regulations, or ordinances.

We granted the City's petition for writ of certiorari to consider whether a public works project is subject to abatement as a public nuisance when it has been duly authorized by law and has, pursuant to law, been reviewed and approved by concerned municipal, state, and federal agencies. Though our reasoning...