Takhar v. Town of Taos
| Decision Date | 27 April 2004 |
| Docket Number | No. 23,551.,23,551. |
| Citation | 2004 NMCA 72,135 N.M. 741,93 P.3d 762 |
| Parties | Carolyn TAKHAR, individually and as trustee of the Greeb S. Takhar Testamentary Trust, Plaintiff-Appellant, v. TOWN OF TAOS, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Connie Od?, Mary E. Humphrey, El Prado, for Appellant.
Frank T. Herdman, Rubin Katz Law Firm, P.C., Santa Fe, for Appellee.
Certiorari Denied, No. 28,682, June 11, 2004.
{1} The Town of Taos halted completion of Plaintiff's apartment complex, requiring Plaintiff to obtain a special use permit before continuing with completion of the complex. The Town's asserted reason for stopping completion was that the approvals and permits issued for the project were based on Plaintiff's misstatement of acreage, causing impermissible density. Plaintiff sought and was denied a special use permit. She then filed an action in district court asserting claims of estoppel and inverse condemnation. The district court granted the Town's Rule 1-012(B)(6) NMRA 2004 motion to dismiss. Plaintiff appeals. We reverse.
{2} When dismissal is under Rule 1-012(B)(6), we look at the well-pleaded factual averments in the complaint. See Valdez v. State, 2002-NMSC-028, ? 4, 132 N.M. 667, 54 P.3d 71 (); Derringer v. State, 2003-NMCA-073, ? 5, 133 N.M. 721, 68 P.3d 961 (); Gutierrez v. W. Las Vegas Sch. Dist., 2002-NMCA-068, ? 7, 132 N.M. 372, 48 P.3d 761 . The pertinent factual averments follow.
{3} In August 1997, Plaintiff Carolyn Takhar commenced development and construction of an apartment unit project on approximately 2.5 acres, having obtained "the necessary approvals from the Town of Taos," which included a building permit to her contractor. In November 1998, the Town granted Plaintiff a certificate of occupancy for twenty units completed pursuant to the building permit, and Plaintiff began leasing those units in April 1999. Plaintiff's contractor proceeded with the completion of another twenty-two units pursuant to the building permit. In January 2000, at the Town's request, Plaintiff "submitted `as built' plans for the project [totaling forty-two units] to the Town." In June 2000, the Town required the contractor to reapply for a building permit, as a result of a dispute between the Town and the State Construction Industries Division, and the Town reissued the same building permit.
{4} In October 2000, Plaintiff terminated her contractor, notified the Town of the termination, and requested reissuance of the building permit for another contractor. At that time, the project was over eighty percent complete. In November 2000, as the new contractor sought a new permit to complete the project, the Town informed Plaintiff for the first time that she would be required to apply for a special use permit "because the units previously built and approved ... exceeded applicable density levels." In a subsequent meeting, Plaintiff was told by the Town's mayor to complete up to thirty-five units, seeking approval from the Town's Planning and Zoning Commission (the Commission). In December 2000, having been allowed to complete only eight additional units, for a total of twenty-eight completed units, Plaintiff applied for a special use permit. That application was denied by the Commission in March 2001 and Plaintiff's appeal of that decision was denied by the Town Council in September 2001.
{5} Plaintiff expended over $2,000,000 in development and construction of the project and was sustaining significant monthly losses as a result of the Town's decision to limit occupancy to twenty-eight units. Plaintiff was unable to lease fourteen of the remaining planned and constructed units and was incurring interest and penalties on outstanding loans.
{6} Plaintiff contended in district court that she had a vested right to complete and lease all contemplated forty-two units. Based on a claim of estoppel, she asked the court to order that she be permitted to complete and lease all units in the project. She also sought temporary and permanent damages, pursuant to NMSA 1978, ? 42A-1-29 (1983), because the Town effectively condemned the property.
{7} The Town moved to dismiss under Rule 1-012(B)(6), on the grounds Plaintiff's claims were barred because she did not appeal the Town Council's denial of her request for a special use permit, Plaintiff failed to state a cause of action for estoppel, her claims for promissory estoppel were barred by governmental immunity, and she failed to state a claim for inverse condemnation. The district court granted the motion and dismissed the complaint and claims with prejudice.
{8} We review de novo a district court's Rule 1-012(B)(6) dismissal. Valdez, 2002-NMSC-028, ? 4, 132 N.M. 667, 54 P.3d 71; Derringer, 2003-NMCA-073, ? 5, 133 N.M. 721, 68 P.3d 961. Well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the complaint. Valdez, 2002-NMSC-028, ? 4, 132 N.M. 667, 54 P.3d 71; Derringer, 2003-NMCA-073, ? 5, 133 N.M. 721, 68 P.3d 961. The dismissal is proper only if it appears that the plaintiff cannot recover under any state of the facts provable under the claim. Valdez, 2002-NMSC-028, ? 4, 132 N.M. 667, 54 P.3d 71; Derringer, 2003-NMCA-073, ? 5, 133 N.M. 721, 68 P.3d 961; Gutierrez, 2002-NMCA-068, ? 7, 132 N.M. 372, 48 P.3d 761.
{9} The Town contends that Plaintiff, not having appealed the denial by the Town Council of the special use permit, pursuant to NMSA 1978, ? 39-3-1.1 (1999) and Rule 1-074 NMRA 2004, is bound by the Town Council's decision. The Town asserts that Plaintiff cannot, for several reasons we discuss in this opinion, collaterally attack that decision in the district court. Plaintiff asserts that she was not required to appeal because the denial of her application does not serve as a basis for her claims. Plaintiff emphasizes that "[t]he Town's denial of her application for a special use permit has nothing to do with her claims, which accrued upon the Town's insistence that she obtain an entirely new and different permit ?€” a special use permit." Plaintiff views the denial of the application to be immaterial. Her claims are not based on the rejection of that application, but on the Town's requirement that she obtain a special use permit in order to complete the project. Her causes of action accrued in November 2000, well before she filed the application for the special use permit.
{10} Plaintiff also asserts that she pursued the application in order to comply with a United States Supreme Court requirement that in order to seek relief in federal court she must first obtain a final decision through the administrative process to determine whether a "mutually acceptable solution" might be reached with the local authority. See Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186-87, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (internal quotation marks and citation omitted). In Williamson County, the United States Supreme Court ruled that the bank's Fifth Amendment ("Just Compensation" or "Taking" Clause) claim asserted through 42 U.S.C. ? 1983 was not ripe because the bank had "not yet obtained a final decision regarding how it will be allowed to develop its property." Williamson County, 473 U.S. at 190,105 S.Ct. 3108. For the bank to bring such a damages claim in federal court based on the local zoning authority's denial of its use of land, the bank was required to show (1) that it sought a variance from the local authority in order to ensure that "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue," and (2) that it sought compensation through state procedures. Id. at 186-87, 194, 105 S.Ct. 3108; see also John Corp. v. City of Houston, 214 F.3d 573, 583-85 (5th Cir.2000) ().
{11} Under Williamson County, a state's procedure, where a local authority's decision is merely reviewed on appeal, does not affect the finality of the decision for the purpose of a federal court claim because such a procedure only permits a determination as to whether the local authority erred; it is merely a review of the effect of the final decision made by the initial government agency that is regulating the land use. See Williamson County, 473 U.S. at 193, 105 S.Ct. 3108 (); see also Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196, 719 A.2d 465, 473, 475-76 (1998) (); Electro-Tech, Inc. v. H.F. Campbell Co., 433 Mich. 57, 445 N.W.2d 61, 73 (1989) (...
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State ex rel Enmu Regents v. Baca
...or that it was not required to exhaust its administrative remedies. DKD relies on Takhar v. Town of Taos, 2004-NMCA-072, ¶ 1, 135 N.M. 741, 93 P.3d 762, in which the plaintiff was denied a special use permit by the zoning commission, but did not appeal and subsequently filed an action in di......