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                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'04- 09:46:26 2013.04.15
Certiorari Granted, March 29, 2013, No. 34,035

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-047

Filing Date: January 24, 2013

Docket No. 30,768

TOWN OF EDGEWOOD,

       Petitioner-Appellee,

v.

STATE OF NEW MEXICO
MUNICIPAL BOUNDARY
COMMISSION,

       Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge

Robles, Rael & Anaya, P.C.
Marcus J. Rael, Jr.
Robert M. White
Vanessa R. Chavez
Albuquerque, NM

for Appellee

Gary K. King, Attorney General
Mark Reynolds, Assistant Attorney General
Santa Fe, NM

for Appellant

                                    OPINION

KENNEDY, Chief Judge.

{1}    The Town of Edgewood (the Town) petitioned the Municipal Boundary Commission

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(the Commission) to annex unincorporated land that was intermixed with its incorporated
areas. The Commission denied the petition. On certiorari review, the district court of Santa
Fe County reversed the Commission’s decision and ordered the annexation, holding that the
Commission had overstepped its authority and considered matters outside of its statutory
prerogatives. The Commission filed a petition for a writ of certiorari, which our Court
granted. We now reverse.

{2}     The Commission has the power to determine the statutory sufficiency of a petition
and may make that determination at any time in the proceedings. The Commission properly
rejected the Town’s petition for failing to establish ownership of roads contained in and
bordering the territory and for accounting for the ownership and consequences of ownership
of roads owned by other government entities in and bordering the territory as required by
NMSA 1978, Section 3-7-18 (1965) and NMSA 1978, Section 3-7-4 (1965). We hold that
the Commission properly denied the annexation.

I.     BACKGROUND

{3}      The Town filed its petition with the Commission to annex territory in the
unincorporated area of Santa Fe County (the County) in September 2009. NMSA 1978, §
3-7-11(A)(1) (1995); NMSA 1978, § 3-7-13 (1983) (setting out requirements for filing of
a petition to annex and its form). A meeting of the Commission was set in due course as
required by NMSA 1978, Section 3-7-14(B) (1965). At the meeting in November 2009, two
main issues arose: (1) the designation, ownership, and inclusion of roads within and
bordering the territory proposed for annexation by the petition; and (2) whether the Town
can provide municipal services to the annexed area within a reasonable period of time. The
Town’s petition included a map of the territory proposed for annexation, which identified
the territory to be annexed in relation to the Town and surrounding areas. It included roads
both within and bordering the proposed annexation. The Town’s map did not identify who
owned these roads. The Commission questioned whether any roads belonged to the state,
county, or federal governments, and the extent to which the Town had taken such ownership
into account. The Town’s attorney stated that there were some state and county roads on the
map submitted. The Town stated that it had no intention of annexing any roads belonging
to another governmental entity and no intention of maintaining any such roads.
Consequently, the Town did not contact any other government that might own roads within
or bordering the territory it sought to annex. The Town Administrator, Karen Machalick,
provided some testimony regarding who maintained the roads as well as some ownership
information. The Commission denied the annexation petition, holding in part that the Town
had not properly included in its petition all streets located on the boundary of the territory
proposed for annexation and that the map accompanying the petition did not show any
federal, state, or county roads existing within that territory.

{4}   The Town sought review by way of certiorari to the district court, which reversed the
Commission, holding that the Commission’s decision was not “in accordance with law.” In
coming to this conclusion, the district court held that the Commission cannot look beyond

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the two statutory requirements included in NMSA 1978, Section 3-7-15 (1965) in making
its decision, namely, that the territory to be annexed is contiguous to the municipality and
that municipal services may be delivered to the annexed territory. It also held that the maps
attached to the Town’s petition provided fair and sufficient notice of the territory proposed
to be annexed and that the County’s use interest in the roads to be annexed did not create a
bar to annexation, by relying on Santa Fe County Board of County Commissioners v. Town
of Edgewood, 2004-NMCA-111, 136 N.M. 301, 97 P.3d 633. The district court concluded
that the Commission did not have the authority to reject the petition. We granted the
Commission’s petition for a writ of certiorari requesting that this Court review the decision
of the district court.

II.     DISCUSSION

{5}     The Commission has statutory power to determine the annexation of territory to a
municipality when the municipality brings a petition to annex. Section 3-7-11(A)(1). “On
a writ of certiorari, we employ an administrative standard of review when determining
whether a district court, sitting as an appellate court, erred in its review of an administrative
decision.” Kirkpatrick v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 2009-NMCA-110, ¶ 10,
147 N.M. 127, 217 P.3d 613. Thus, our standard of review is the same as that employed by
the district court. Mutz v. Mun. Boundary Comm’n, 101 N.M. 694, 697, 688 P.2d 12, 15
(1984). On appeal of the Commission’s decisions, a reviewing court is limited to questions
of law, including whether the administrative body acted fraudulently, arbitrarily, or
capriciously, whether substantial evidence exists to support the decision, and whether the
administrative body acted within its authority. Id. at 702, 688 P.2d at 20. Although it may
correct a misapplication of the law, the reviewing court generally may not substitute its
judgment for that of the administrative agency. Id. at 697, 688 P.2d at 15. “In applying
whole record review, this Court reviews both favorable and unfavorable evidence to
determine whether there is evidence that a reasonable mind could accept as adequate to
support the conclusions reached by the fact finder.” Levario v. Ysidro Villareal Labor
Agency, 120 N.M. 734, 737, 906 P.2d 266, 269 (Ct. App. 1995).

{6}     We first address the question of authority and whether the Commission is limited to
considering only the issues of contiguity and the provision of municipal services under
Section 3-7-15. We conclude that, in addition to determining these issues, the Commission
may consider and determine the statutory sufficiency of the petition. We next consider the
sufficiency of the evidence and determine that there was sufficient evidence to support the
Commission’s determination that statutory requirements regarding identification of roads
on the map were not met.

A.      The Commission May Determine the Sufficiency of Petitions

{7}    Our first concern is whether the Commission is limited to consideration of only the
two issues of contiguity and provision of services. In this case, the issue is whether the
Commission may also consider the requirement of NMSA 1978, Section 3-7-13(A)(3)(b)

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(1965) for designation of highways and the requirement of Section 3-7-18 that the proposed
annexation include any streets located along the boundary of the territory to be annexed.

{8}      A petition to annex must include information about the roads within and along the
boundary of the territory proposed to be annexed. Section 3-7-13(A)(3)(b). Pursuant to the
statute, the petition shall be accompanied by a map of the territory proposed to be annexed,
which must show, among other items, “any federal, state[,] or county highways which may
exist in the territory proposed to be annexed[.]” Id. Territory owned by the federal
government and its instrumentalities, or the State of New Mexico and its political
subdivisions, may be annexed upon consent of that government entity. Section 3-7-4(A).
Finally, “[a]ny municipality annexing any territory shall include in the annexation any streets
located along the boundary of the territory being annexed.” Section 3-7-18 (defining “street”
as “any thoroughfare that is open to the public and has been accepted by the board of county
commissioners as a public right-of-way”). Combined, these statutes require that a petition
to annex territory include all roads in and along the boundaries of the territory, and if they
are owned by government subdivisions, that consent be obtained to annex those roads from
those governments.

{9}     Our opinion, in State ex rel. State Highway & Transportation Department v. City of
Sunland Park, 1999-NMCA-143, ¶ 21, 128 N.M. 371, 993 P.2d 85, confirms that an
annexation must comply with all statutory requirements, not just with the provisions of
Section 3-7-15(A). There, we invalidated an annexation for not including an adjacent state
road. City of Sunland Park, 1999-NMCA-143, ¶ 27. Section 3-7-18 requires the annexation
of roads adjacent to the territory to be annexed and failing to include roads adjacent to
territory in an annexation petition rendered the petition invalid. City of Sunland Park, 1999-
NMCA-143, ¶ 24.

{10} In this appeal, the Town, like the district court below, incorrectly relies on our
holding in Edgewood. In that case, we rejected Santa Fe County’s standing to object to an
annexation by the town because it did not own roads within the annexed area. 2004-NMCA-
111, ¶ 8. The question of compliance with Sections 3-7-13(A)(3)(b) and 3-7-18 was not the
issue. Edgewood primarily established that maintaining public roads did not create an
ownership interest in the roads, and a lack of ownership precluded a county’s standing to
object to a road’s annexation. 2004-NMCA-111, ¶¶ 11-14. In the present case, the district
court concluded that the “County’s use interest in the roads to be annexed does not create
a bar to annexation.” However, the issue before us is not the use interest in the road, but
rather whether the Town filed a petition that meets statutory requirements. Edgewood is not
applicable to a determination of the sufficiency of the petition regarding required statutory
representations and inclusions.

{11} The next question is how and when the Commission can consider such defects. The
Town concedes that the Commission is not required to review a petition if its statutory
preconditions are not met, but it asserts that a review of the statutory sufficiency of the
petition must be completed prior to the Commission taking up the merits of the petition. The

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Town’s rationale seems to be that because a petition may not be denied for any other reason
than those two contained in Section 3-7-15, it cannot be rejected at the end of the
Commission hearing for any other reason. We disagree, as we regard rejection of a petition
that does not comply with statutory form requirements to be different than denial of a
petition based on the merits of the petition itself.

{12} We have evaluated a similar situation and noted that a board, reviewing a petition for
incorporation, may review the statutory sufficiency of the petition at any time. See Citizens
for Incorporation, Inc. v. Bd. of Cnty. Comm’rs, 115 N.M. 710, 713-14, 858 P.2d 86, 89-90
(Ct. App. 1993). There, we held that a board’s determination that the petition was
insufficient should be upheld if supported by substantial evidence. Id. at 714, 858 P.2d at
92. We further held that the sufficiency of the petition is a jurisdictional issue and, therefore,
that the statutory prerequisites for a petition can be raised at any time. Id. at 716, 858 P.2d
at 92. The court in Citizens for Incorporation held that a board may properly determine the
sufficiency of a petition for municipal incorporation and its supporting map. Id. In Citizens
for Incorporation, the sufficiency issue was not raised prior to the hearing on other issues,
but we held that this fact did not bar the board from determining that the petition was
insufficient under applicable statutes. Id. Because the incorporation and annexation statutes
are similarly structured, we adopt the rationale of Citizens for Incorporation and determine
that the Commission may consider the sufficiency of the petition at any time.

{13} The requirements of Sections 3-7-13(A)(3)(b) and -18 are preconditions to a petition
being properly before the Commission. The Commission concluded as a matter of law that
the Town did not include in its annexation request all streets as required by these statutes.
We regard the Commission’s conclusion to be that the petition did not conform with the
legal requirements set forth by the Legislature in its statutes governing annexation.

{14} We conclude that the Commission has the power to review petitions for their
sufficiency and compliance with the annexation statutes. The Commission can request
further detail at any time in the hearing should concerns arise about the petition and its
supporting map. The Commission was free to determine that the petition did not meet the
requirements of Sections 3-7-13 and -18. Having concluded from testimony concerning the
contents of the petition and its supplemental materials that the petition did not meet the
statutory requirements, the Commission could then determine that the petition was invalid.
Because this determination of its jurisdiction must be supported by substantial evidence, we
now review the Commission’s findings and conclusions according to a substantial evidence
standard of review.

B.      The Commission’s Determination That the Town Filed a Non-Compliant
        Petition Was Supported by Substantial Evidence

{15} In reviewing the Commission’s decision, we look at the entire administrative record
to see if substantial evidence supports the outcome. Mutz, 101 N.M. at 699, 688 P.2d at 17.
At the hearing before the Commission, the Town conceded that its map contained state and

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county roads. However, the county roads were not designated as such. The Commission
asked if the Town had obtained permission to annex county roads pursuant to Section 3-7-
4(A). The Town responded that it was “not annexing any state or county property” and that
the roads would remain state and county roads unless and until the state and county desired
to dedicate them to the Town.

{16} The Town relied on Section 3-7-4(B), which states that an annexation can be valid
despite containing land belonging to other governmental entities within the territory to be
annexed. The Town testified that about forty-five miles of county road existed within the
area proposed for annexation. Other testimony established that the territory sought to be
annexed was bordered by Old Route 66, which appeared on the Town’s map as State Route
333. Testimony referred to property to be annexed as being bordered by County Road 6C
and Highway 344. The exhibits to the petition included multiple property locations on NM
344 and Old U.S. 66, which suggest the existence of state and county roads within and along
the areas to be annexed.

{17} The Commission’s order denying annexation found that, while the map showed roads
that exist “within and along the boundary of the territory proposed to be annexed,” the map
did not indicate whether the roads were owned by any other government entity. The
Commission found that county and state roads were “within or border the territory proposed
to be annexed” and that the Town was “unable to ascertain who the actual owner is of
several of roads within or on the boundary of the territory.” It also found that the Town had
no intention to annex any federal, state, or county roads, and no intention of having any
government entity owning such a road, to continue to maintain it. The Town did not indicate
any intention of annexing other, presumably private, roads that were not included in the
petition. Based on our review of the exhibits and the testimony given at the hearing, all of
the Commission’s findings are supported by substantial evidence.

{18} Having concluded that substantial undisputed evidence supports both the
Commission’s findings of fact and conclusions of law regarding the non-compliance of the
Town’s petition with applicable statutes, we further conclude that the Commission’s decision
that the Town did not comply with statutory requirements for its petition was not arbitrary
and capricious. Our ruling being dispositive of the appeal, we do not address the issue of
whether the Town would be able to provide municipal services to the annexed area.

III.   CONCLUSION

{19} The district court erred in holding that the Commission’s review of the sufficiency
of the petition was limited. The Commission has the power to evaluate the annexation
petition’s compliance with statutory requirements for ownership and documentation of roads.
There is no need to address any further issues because the petition did not warrant further
proceedings before the Commission. We therefore reverse the district court and affirm the
decision of the Commission.


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{20}   IT IS SO ORDERED.

                                      ____________________________________
                                      RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
CELIA FOY CASTILLO, Judge Pro Tem

Topic Index for Town of Edgewood v. N.M. Mun. Boundary Comm'n, No. 30,768

ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal
Arbitrary and Capricious Actions
Standard of Review
Sufficiency of Evidence

APPEAL AND ERROR
Certiorari
Substantial or Sufficient Evidence

GOVERNMENT
Annexation
Counties
Highways
Municipalities




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