West Old Town Neighborhood Ass'n v. City of Albuquerque

• Decision Date: 06 September 1996
• Docket Number: No. 16281,16281
• Parties: WEST OLD TOWN NEIGHBORHOOD ASSOCIATION, a New Mexico non-profit corporation, Judy Gossett, Lanny Tonning and Linda Thorne, Petitioners-Appellants, v. CITY OF ALBUQUERQUE, a New Mexico municipal corporation, Respondent-Appellee, and Julia Milloy and Construction Professionals, Inc., Interested Parties.
• Court: Court of Appeals of New Mexico

Page 529

927 P.2d 529

122 N.M. 495

WEST OLD TOWN NEIGHBORHOOD ASSOCIATION, a New Mexico

non-profit corporation, Judy Gossett, Lanny

Tonning and Linda Thorne, Petitioners-Appellants, v. CITY OF ALBUQUERQUE, a New Mexico municipal corporation,

Respondent-Appellee,

and

Julia Milloy and Construction Professionals, Inc., Interested Parties.

No. 16281.

Court of Appeals of New Mexico.

Sept. 6, 1996.

Certiorari Denied Oct. 23, 1996.

Hessel E. Yntema, III Oman, Gentry & Yntema, P.A. Albuquerque, for Petitioners-Appellants.

Robert M. White, City Attorney and David N. Suffling, Assistant City Attorney, Albuquerque, for Respondent-Appellee.

John A. Myers and Kevin J. McCready, Myers, Oliver & Price, P.C., Albuquerque, for Interested Parties.

OPINION

BOSSON, Judge.

1. The opinion filed in this case on July 30, 1996, is hereby withdrawn and the following opinion is substituted. Respondent-appellee's motion for rehearing is denied.

2. West Old Town Neighborhood Association appeals a zoning decision of the Albuquerque City Council relating to newly annexed property. In the course of annexation and over the protest of some of the surrounding neighborhood, the City Council changed the zoning from that which had previously been designated in the sector development plan for the Old Town area. We are asked to review the City's zoning ordinances, regulations, policies and procedures and to determine the weight to be given a zoning designation in a sector development plan when it pertains to land initially located outside the City and then annexed. We also determine whether the defined criteria for rezoning set forth in the City's zoning code must be satisfied in an annexation situation. We conclude that the City did not comply with its own zoning code and reverse.

FACTUAL AND PROCEDURAL HISTORY

3. The property in question, a 6.3 acre tract owned by Julia Milloy and Construction Professionals, Incorporated (Milloy), is located in the West Old Town area of Albuquerque and was previously zoned County A-1 by Bernalillo County. In 1979 the County issued a special use permit for a 40 lot subdivision on the property, but it was never built. Milloy acquired the property later and petitioned for annexation into the City to obtain water and sewer services for the property. Milloy petitioned the City's Environmental Planning Commission (EPC) requesting that the property which was zoned as RA-1 (two dwelling units per acre) be zoned at RA-2 density (four dwelling units per acre).

4. Although located outside the City, the property was within the boundaries of the City's Old Town Sector Development Plan (Sector Plan), which provided a zoning plan for land in the greater Old Town area. Under NMSA 1978, Section 3-19-5 (Repl.Pamp.1995), the City has authority to adopt plans for the development of areas outside its boundaries but within its planning and platting jurisdiction. In 1988 the City Council amended the Sector Plan to decrease the allowable density from RA-2 to RA-1, so that the Sector Plan then read: "As land in the area which is not in the City is annexed, it should be zoned RA-1 to maintain the existing character of the area." The existing character of the western portion of the area, where the Milloy property is located, was described in the Sector Plan as semi-rural. Milloy's request for RA-2 zoning conflicted with the RA-1 designation in the Sector Plan, and therefore Milloy's annexation petition also sought to amend the Sector Plan.

5. On January 20, 1994, after several hearings, the EPC recommended to the City Council's Land Use, Planning and Zoning Committee (LUPZ) that the annexation request be approved, but not the RA-2 zoning density. Instead, the EPC fashioned a compromise, proposing that the property be zoned SU-1 (special use) with a recommended density falling between RA-1 and RA-2. The EPC also advised the LUPZ that the Sector Plan would have to be amended to accommodate the SU-1 zoning for the property, because SU-1 was not a permitted zone in the Sector Plan. After a hearing, the LUPZ adopted the EPC recommendations, and the Milloy proposal was then ready for final approval by the City Council.

6. On May 16, 1994, the City Council accepted the recommendations and approved the annexation, rezoning, and Sector Plan amendment. The City Council adopted Ordinance 19, which annexed and rezoned the tract SU-1, and adopted Resolution 45 which amended the Sector Plan to permit the new SU-1 zoning for this particular property. The Resolution stated the SU-1 zoning category was not necessarily applicable to other vacant parcels in the area covered by the Sector Plan and was not a precedent for other zoning changes.

7. The West Old Town Neighborhood Association petitioned the district court for a writ of certiorari to review both the zoning decision and the amendment of the Sector Plan. See NMSA 1978, § 3-21-9 (Repl.Pamp.1995).

                [122 N.M. 498] The annexation itself was not challenged.  The district court affirmed the action of the City Council, concluding that the City's enactment of Ordinance 19 and Resolution 45 was not "arbitrary and/or capricious, was not otherwise contrary to law, and is supported by substantial evidence."   The Neighborhood Association appeals
                

DISCUSSION

8. If this were simply a case of rezoning land already within the City, all parties agree that to amend both the City zoning map and the Sector Plan, the City would first have to meet the defined criteria for rezoning set forth in the City zoning code. See Albuquerque, N.M., Zoning Code ch. 14, art. XVI, § 14-16-4-1 (1995 S-5); Resolution 270-1980. However, rezoning is only granted in limited circumstances, usually based on changes in the surrounding community. The question is whether those same rezoning procedures apply when land is being annexed into the City.

9. The Neighborhood Association contends that this is rezoning and the defined criteria do apply, emphasizing that the Sector Plan was specifically designed to deal with annexation. The Neighborhood Association takes the position that the Sector Plan creates zoning for any property located within its boundaries, effective upon annexation into the City, and any deviation from the zoning designated in the Sector Plan must follow the protocol for rezoning.

10. The City¹ rejects the Neighborhood Association's claim that the Sector Plan establishes the zoning status of the property. The City contends that the Sector Plan is merely advisory and does not create zoning for that part of the area located outside city boundaries. The City argues that because the annexed property had no prior city zoning, then this cannot be rezoning. The City takes the position that, upon annexation, the City Council is free to select an initial zoning regardless of the Sector Plan, and it may do so without adhering to the defined criteria for rezoning set forth in the City zoning code. Alternatively, the City argues that if the rezoning criteria do apply, they have been substantially satisfied in this instance. We turn initially to what criteria apply, if any, to the City's zoning determination upon annexation.

Standard of Review

11. As the City correctly points out, the City Council may enact the zoning it chooses when it authors a sector plan. The City appears to argue that the challenged zoning action was legislative in nature and should be reviewed under the deferential standard described in Thompson v. McKinley County, 112 N.M. 425, 430, 816 P.2d 494, 499 (1991) (legislation is presumptively valid). See Downtown Neighborhoods Ass'n v. City of Albuquerque, 109 N.M. 186, 189, 783 P.2d 962, 965 (Ct.App.1989) (enactment of zoning rules and regulations is a legislative function which must be reviewed with deference). However, legislative actions generally reflect public policy in relation to matters of a general nature, as when a determination is made regarding the zoning of a community or area without consideration to any particular piece of property. See Dugger v. City of Santa Fe, 114 N.M. 47, 51, 834 P.2d 424, 428 (Ct.App.), writ quashed, 113 N.M. 744, 832 P.2d 1223 (1992). In this instance, the City's amendments to the zone map and Sector Plan were intended to apply only to a single property, the tract belonging to Milloy. In New Mexico, zoning decisions involving the application of a general rule to a specific property are not legislative acts; rather they are deemed to be quasi-judicial in nature. Id. Because the challenged zoning actions are quasi-judicial, the administrative standard of review would be the appropriate standard. See id. at 54, 834 P.2d at 431. We apply a whole record standard of review to administrative decisions looking at all the evidence, favorable and unfavorable, bearing on a decision to determine if there is substantial evidence to support the result. Fitzhugh v. New Mexico Dep't of Labor, 122 N.M. 173, 180, 922 P.2d 555, 562 (1996). The decision will be affirmed if it is supported by the applicable

[122 N.M. 499] law and by substantial evidence in the record as a whole. Id. at 180, 922 P.2d at 562.

Sector Development Plans

12. Citing Dugger, the City argues that the Sector Plan did not establish zoning because it was adopted by City resolution, not by ordinance. See Dugger, 114 N.M. at 55, 834 P.2d at 432 (resolutions do not carry the weight of law, as do ordinances). In Dugger, this Court discussed the difference between resolutions and ordinances citing to Williams v. City of Tucumcari, 31 N.M. 533, 249 P. 106 (1926) and 5 Eugene McQuillin, The Law of Municipal Corporations § 15.02 (3d ed. 1088). Id. The distinction between our case and the circumstances of Dugger can be found in the cited material. In Williams, the Tucumcari city council had undertaken by informal order an action which local statute required to be accomplished by ordinance. Williams, 31 N.M. at 536, 249 P. at 107. The New Mexico Supreme Court said that when action by ordinance is required, "[a]...