WEST BLUFF v. City of Albuquerque

• Decision Date: 15 May 2002
• Docket Number: No. 21,743.,21,743.
• Citation: 132 N.M. 433,2002 NMCA 75,50 P.3d 182
• Parties: WEST BLUFF NEIGHBORHOOD ASSOCIATION, Grande Heights Neighborhood Association, and West Area Residents for Aesthetic and Responsible Expansion, New Mexico corporations, Petitioners-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, Respondent-Appellee, and Geltmore, Inc., a New Mexico corporation, Interested Party, Wal-Mart Stores East, Inc.; Coors Limited, RRG; Richard B. Saylor; Susan J. Scarborough Saylor; Maureen Repetto, Trustee of the Maureen Repetto Revocable Living Trust; Susan Fayette Hutchinson, Co-Executor of the Estate of Barbara Novak; Dennis Novak, Co-Executor of the Estate of Barbara Novak; and Home Depot, Inc., Intervenors.
• Court: Court of Appeals of New Mexico

50 P.3d 182

132 N.M. 433

2002 NMCA 75

WEST BLUFF NEIGHBORHOOD ASSOCIATION, Grande Heights Neighborhood Association, and West Area Residents for Aesthetic and Responsible Expansion, New Mexico corporations, Petitioners-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, Respondent-Appellee, and Geltmore, Inc., a New Mexico corporation, Interested Party, Wal-Mart Stores East, Inc.; Coors Limited, RRG; Richard B. Saylor; Susan J. Scarborough Saylor; Maureen Repetto, Trustee of the Maureen Repetto Revocable Living Trust; Susan Fayette Hutchinson, Co-Executor of the Estate of Barbara Novak; Dennis Novak, Co-Executor of the Estate of Barbara Novak; and Home Depot, Inc., Intervenors.

No. 21,743.

Court of Appeals of New Mexico.

May 15, 2002.

Certiorari Denied July 9, 2002.

Ann Berkley Rodgers, Peter C. Chestnut, Charles G. Berry, Charles G. Berry & Assoc., PA, Albuquerque, NM, for Appellants.

Robert M. White, City Attorney, David Suffling, Assistant City Attorney, Albuquerque, NM, for Appellee.

Victor R. Marshall, L. Helen Bennett, Victor R. Marshall & Associates, P.C., Albuquerque, NM, for Interested Party, Geltmore, Inc.

Richard Leverick, Leverick and Musselman, LLC, Albuquerque, NM, for Intervenor, Wal-Mart Stores East, Inc.

Catherine F. Davis, Julie J. Vargas, Hunt & Davis, P.C., Albuquerque, NM, for Intervenor, Home Depot, Inc.

Certiorari Denied, No. 27,553, July 9, 2002.

OPINION

BOSSON, Chief Judge.

{1} Three Albuquerque neighborhood associations (referred to collectively as West Bluff) oppose a retail shopping center in their neighborhood. The site development plan for the shopping center was approved by the City of Albuquerque and subsequently affirmed by the district court. This Court granted West Bluff's petition for a writ of certiorari challenging the site development plan approval. West Bluff raises issues of law related to the approval of the site plan which are appropriate for our limited review on certiorari.

{2} Pursuant to Rule 12-505 NMRA 2002, we determine whether the City's decision approving the site development plan conflicts with any "statutory provision, ordinance or agency regulation," which is, in part, how our review is defined by that rule. It is also alleged that the decision to approve the site development plan conflicts with the City master plan and its various sub-plans, and we determine whether those conflicts are justiciable under the limitations placed on certiorari by Rule 12-505. We also determine whether the actions of the City and its agencies denied West Bluff minimum requirements of due process of law. We affirm the decision of the district court.

BACKGROUND

{3} On September 16, 1999, the City of Albuquerque Environmental Planning Commission (EPC) approved a site development plan, for subdivision and building permit, for a 34-acre retail shopping center near the northeast corner of Coors Boulevard and Interstate 40 in Albuquerque. The proposed site plan is characterized by two large buildings (a Home Depot and a Wal-Mart), as well as a few smaller businesses, on two separate parcels of land. This site plan is a scaled-down version of an earlier, 65 acre plan that was initially approved by the EPC, but ultimately rejected by the City Council at West Bluff's urging. Thereafter, the developer submitted the amended site plan application, which downsized the project in an effort to conform with existing zoning.

{4} The EPC found that the revised site development plan for the 34-acre shopping center (hereafter Site Plan) conformed generally with the City's comprehensive plan and its constituent parts (hereafter the master plan) and with applicable City ordinances. Following the EPC's approval of the Site Plan, West Bluff filed an appeal with the City Council. On November 10, 1999, the City Council's Land Use, Planning and Zoning Committee (LUPZ) reviewed the matter. The LUPZ determined that the EPC had not erred and found the Site Plan to be in substantial compliance with the relevant City zoning ordinances, and with the City's master plan. The LUPZ recommended that the appeal not be heard by the full City Council. The City Council subsequently adopted the LUPZ findings and recommendations and filed its final decision on November 23, 1999, affirming the Site Plan approval.

{5} West Bluff filed a statutory appeal to the district court, pursuant to NMSA 1978, § 39-3-1.1 (1999) and Rule 1-074 NMRA 2002. On August 7, 2000, the district court affirmed the City's approval of the Site Plan. After applying unsuccessfully for extraordinary writ review from the Supreme Court, West Bluff successfully petitioned this Court for a writ of certiorari pursuant to Rule 12-505.

DISCUSSION

{6} After the parties in this case completed their appellate briefs, this Court clarified the scope of our review in certiorari cases. See C.F.T. Dev., LLC v. Bd. of County Comm'rs, 2001-NMCA-069, 130 N.M. 775, 32 P.3d 784

(hereafter C.F.T.). In C.F.T., we held that "Rule 12-505 limits both the grounds on which we will issue a writ of certiorari and the review we will thereafter conduct of a district court decision in an administrative appeal." Id. ¶ 11. We will review a decision below if it is in conflict with a New Mexico appellate opinion, or with "any statutory provision, ordinance or agency regulation." Rule 12-505(D)(5)(a), (b). We will also review significant questions of constitutional law and issues of substantial public interest. Rule 12-505(D)(5)(c), (d).

{7} We will not, however, review a decision below for an abuse of discretion, nor will we determine whether a decision was supported by substantial evidence. C.F.T., 2001-NMCA-069, ¶¶ 9-11, 130 N.M. 775, 32 P.3d 784. These tasks are solely for the district court sitting in its appellate capacity. Id. ¶ 9. In the case before us, the district court examined the factual record compiled below, and determined that the City's decision to affirm the Site Plan was supported by substantial evidence. We do not review that decision on certiorari.

{8} West Bluff does raise certain questions of law that are appropriate for our review on certiorari. Specifically, West Bluff alleges that the City's approval of the Site Plan conflicted with City ordinances, which we will discuss in due course. West Bluff also implicates rights set forth in New Mexico appellate decisions, as well as the due process clause of the federal constitution. We review these questions under Rule 12-505(D)(5)(a)-(c). West Bluff did not persuade us that any of its issues on appeal are matters of "substantial public interest" which is an alternative ground for our review under Rule 12-505(D)(5)(d). See C.F.T., 2001-NMCA-069, ¶ 12,

130 N.M. 775,

32 P.3d 784 (declining to define the "seemingly rare instances" when a petitioner could successfully fashion a substantial public interest argument).

{9} The principal thrust of this appeal, however, is West Bluff's claim that the City violated its own master plan when it approved the Site Plan. For us to review such a claim on certiorari, we must determine whether, as West Bluff argues, the master plan has a force of law similar to that of a "statutory provision, ordinance or agency regulation," such that it would be appropriate for our review under Rule 12-505(D)(5)(b).

CONFLICT WITH THE MASTER PLAN

Statutory Provisions

{10} We look first to New Mexico statutes to examine the legal effect the legislature has envisioned for master plans in general. Our goal in interpreting a statute is to give effect to the intent of the legislature. In re Extradition of Martinez, 2001-NMSC-009, ¶ 14, 130 N.M. 144, 20 P.3d 126.

{11} In Chapter 3, Article 19 of the New Mexico statutes, entitled "Planning and Platting," the legislature empowered municipalities to establish planning commissions and to delegate to these planning commissions the authority to "adopt, amend, extend and carry out a general municipal or master plan." NMSA 1978, § 3-19-1(D) (1965); see also NMSA 1978, § 3-19-4 (1965) (describing powers accorded to a municipal planning commission). Most germane to our inquiry is NMSA 1978, § 3-19-9(A) (1970), which provides for the creation of city master plans:

The planning commission shall prepare and adopt a master plan for the physical development of the municipality and the area within the planning and platting jurisdiction of the municipality.... The planning commission may amend, extend or add to the plan or carry any part or subject matter into greater detail.... The plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the municipality which will, in accordance with existing and future needs, best promote health, safety, morals, order, convenience, prosperity or the general welfare as well as efficiency and economy in the process of development.

(Emphasis added.)

{12} The master plan is to contain "recommendations of the planning commission for the physical development of the municipality," including "the general location, character, layout and extent of community centers and neighborhood units." Section 3-19-9(B)(4). Thus, the legislature has assigned to the master plan the role of guide, enabling municipal planning commissions to use reasonable discretion in applying its provisions to the actual decision-making processes involved in municipal development.

{13} The role of guide for master plans is also evident in New Mexico case law. In Dugger v. City of Santa Fe, 114 N.M. 47, 55, 834 P.2d 424, 432 (Ct.App.1992), this Court discussed the legal effect of a municipal master plan, construing Section 3-19-9(A). In Dugger, we determined that the legislature intended master plans to be advisory in nature. Id. We also examined the particular city master plan in question and found that it set out broad priorities, provided guidelines, and made recommendations regarding factors that "should" be considered. Id. We held that such a plan was advisory, had...