Temple Baptist Church, Inc. v. City of Albuquerque

• Citation: 98 N.M. 138,646 P.2d 565,1982 NMSC 55
• Decision Date: 03 May 1982
• Docket Number: No. 13613,13613
• Parties: TEMPLE BAPTIST CHURCH, INC., et al., Plaintiffs-Appellees, Donrey Outdoor Advertising, Intervenor-Appellee, v. CITY OF ALBUQUERQUE, a municipal corporation, and David Rusk, Mayor of the City of Albuquerque, Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 565

646 P.2d 565

98 N.M. 138

TEMPLE BAPTIST CHURCH, INC., et al., Plaintiffs-Appellees Donrey Outdoor Advertising, Intervenor-Appellee, v. CITY OF ALBUQUERQUE, a municipal corporation, and David Rusk, Mayor of the City of Albuquerque Defendants-Appellants.

No. 13613.

Supreme Court of New Mexico.

May 3, 1982.

Rehearing Denied June 15, 1982.

George R. Pat Bryan, III, City Atty., Charles N. Estes, Jr., James P. Fitzgerald, Asst. City Attys., Albuquerque, for defendants-appellants.

Eaves & Darling, John M. Eaves, Albuquerque, for intervenor-appellee.

Melton & Puccini, Louis Puccini, Jr., Timothy Flynn-O'Brien, Modrall, Sperling, Roehl, Harris & Sisk, George T. Harris, Jr., James P. Houghton, Albuquerque, for plaintiffs-appellees.

Steven Barshov, Santa Fe, amicus curiae, New Mexico Municipal League.

OPINION

SOSA, Senior Justice.

The City of Albuquerque (City) appeals the district court's judgment declaring unconstitutional the Albuquerque, N. M., Rev. Ordinances, ch. 7, art. XIV, 1974 (1980), (hereinafter Code) pertaining to the regulation of signs, and permanently enjoining enforcement of those regulations against appellees.

The issues on appeal are:

I. Whether the City failed to preserve the issues for appellate review;

II. Whether the City's sign ordinance is a reasonable exercise of the City's police power;

III. Whether enforcement of the ordinance involves an unconstitutional taking of private property for which payment of just compensation is required;

IV. Whether the sign ordinance violates free speech;

V. Whether enforcement of the sign ordinance operates as an unconstitutional ex post facto law;

VI. Whether enforcement of the ordinance unconstitutionally impairs the obligation of contract. ¹

I.

On December 31, 1980, plaintiffs filed their Complaint to Void Sign Ordinance and Verified Motion for Temporary Restraining Order and Preliminary Injunction and served the City. ² After eight district judges had been disqualified and one had recused himself, Judge Franchini, on January 7, 1981, heard plaintiffs' motion. No ruling was made during the course of that proceeding; however, a hearing was scheduled for January 26, 1981, to argue the constitutional issues. After oral argument, the court orally announced its decision, holding the sign ordinance unconstitutional. After the decision, plaintiffs requested leave to amend their complaints. On March 9, 1981, the last of the plaintiffs' amended complaints were filed, and the court filed its judgment. The City had until January 30, 1981, three days after the court had made its oral decision, in which to answer the original complaints. The City had until March 19, 1981, to answer the last of the amended complaints. However, to date, the City has not filed an answer.

Appellees argue that, since the City failed to present affidavits or other evidence in opposition to appellees' affidavits and verified complaints, all of appellees' allegations are admitted and, since the City has not filed a responsive pleading, no issues are preserved for review. We disagree.

The district court made it clear that the hearing on January 26 was not to be an evidentiary hearing, but was only for argument on constitutional issues as a matter of law. The court, referring to the January 26 hearing, stated:

It is going to be virtually a legal argument. I don't see where you are going to need any evidentiary material presented to the Court. I think you are going to have to have the Ordinance, and it is going to be a matter of legal arguments.

The only evidentiary material presented at the hearing was the Code and related documents; no affidavits were attached to the original complaints. The district court relied on briefs, argument of counsel and the Code itself before rendering its oral decision. To say that the court relied on the affidavits first attached to the amended complaint only hours before the court filed its judgment is a specious contention. The City was not obliged to introduce evidence at the hearing.

Regarding the City's failure to file responsive pleadings, we are of the opinion that this does not prejudice their appeal. Rule 11 of the New Mexico Rules of Civil Appellate Procedure, N.M.S.A.1978, states that "(t)o preserve a question for review it must appear that a ruling or decision by the trial court was fairly invoked."

During the course of the proceedings in the case at bar, appellees filed a complaint setting forth numerous allegations. After a preliminary hearing, the district court requested that the parties submit briefs. In its brief, the City responded to each allegation made by appellees in their complaint.

Although this Court does not condone such a deviation from the standard rules of procedure which require that a responsive pleading be filed, we cannot say that the issues before us were not fairly invoked at the district court level. Both parties to this action filed their briefs and argued before the district court. The court then entered its judgment. Although proper pleading is important, its importance inheres in its effectiveness as a means of accomplishing substantial justice. See N.M.R.Civ.P. 8(f), N.M.S.A.1978 (Repl.Pamp.1980).

In addition, the constitutional issues presented on appeal are of a general public interest and are properly before this Court for review. N.M.R.Civ.App. 11, N.M.S.A.1978.

II.

Of paramount importance to the disposition of the remaining issues in this case is a determination of whether the sign ordinance is a valid exercise of the City's police power. It is well settled that municipalities have no inherent right to exercise police power; their right must derive from authority granted by the State. City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964). The New Mexico Legislature has granted municipalities zoning authority for the purpose of promoting the health, safety, morals or the general welfare of their communities. § 3-21-1, N.M.S.A.1978. The Legislature limits the zoning authority of municipalities by requiring a comprehensive municipal plan designed to satisfy certain enumerated statutory purposes. § 3-21-5, N.M.S.A.1978. The City of Albuquerque has such a comprehensive plan. CODE.

In examining this sign ordinance, we must apply the general principles of zoning law. Thus, the ordinance reaches this Court attached with a presumption of validity. City of Alamogordo v. McGee, 64 N.M. 253, 327 P.2d 321 (1958). The burden is on the sign owners to overcome this presumption by proving that the ordinance is not reasonably related to its stated purpose. Gamble-Skogmo, supra. The City's sign ordinance seeks to regulate the number, size and height of commercial and noncommercial signs. The stated intent of the Code is

to promote the health, safety, convenience, and general welfare of the citizens of the city (of Albuquerque). (T)o help control congestion in the streets and public ways; to control and abate the unsightly use of buildings or land; * * * and to enhance the appearance of the landscape.

§ 2 Code.

In 1978, the City published a Manual of Sign Regulations, Albuquerque, N.M., Rev. Ordinances, ch. 7, art. XIV (1974), (Manual) with the intent to concisely present the sign ordinances. In its Manual, the City states:

"Incidental structures such as signs * * * shall be designed for minimal visual distraction. Signing shall be limited to the minimum size and number necessary for identification purposes." * * * The general "intent" of the (Comprehensive City) Zoning Code is contained in Section 2 of that ordinance. While other terms listed there are to some extent relevant to the sign regulations, the intent of promoting the "general welfare of the citizens of the city" is the most relevant.

Manual, p. 1 (quoting Albuquerque/Bernalillo County Comprehensive Plan-Policies Plan, 2(o) (1975)).

Appellees argue that the limited purpose, as stated in the Manual, evidences the fact that aesthetics alone is what the City relies on to support the constitutionality of the ordinance. The City's reply is that, although aesthetics is the predominant objective of the sign ordinance, traffic safety was also a consideration of the City Council when enacting the sign ordinance.

The district court agreed that the objectives of the ordinance included both aesthetics and traffic safety. However, the district court held that the sign ordinance was not reasonably related to traffic safety, and zoning solely for aesthetic purposes was an invalid exercise of the City's police power. We disagree with the district court's conclusions.

On appeal, the parties and amicus curiae have thoroughly briefed the issue of whether zoning solely for aesthetic purposes was a valid exercise of the police power.

In New Mexico, although we have hinted toward approval of zoning for aesthetics alone, we have never so held. In Gamble-Skogmo, supra, this Court did not find it necessary to decide whether aesthetic considerations furnished sufficient ground for the exercise of the police power, as is increasingly held by modern authorities, but held that aesthetics could not be entirely ignored. The Court quoted the following language from Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606, 612 (1958):

"Not only is the preservation of the attractive characteristics of a community a proper element of the general welfare, but also the preservation of property values is a legitimate consideration * * *."

Gamble-Skogmo, supra 73 N.M. at 417, 389 P.2d at 18.

In Holiday Management Company v. City of Santa Fe, 83 N.M. 95, 488 P.2d 730 (1971), this Court stated, albeit in dicta, that any argument against a municipality's specific police power to impose reasonable controls for aesthetic purposes is doubtful. In Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 600 P.2d 258 (1979), appeal dismissed, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980), we coupled aesthetic considerations with economics in...