       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-110

Filing Date: August 25, 2009

Docket No. 27,842

CHARLES KIRKPATRICK, JUNE KIRKPATRICK,
SUDYE KIRKPATRICK, and JAMES KIRKPATRICK,

       Appellants-Respondents,

v.

BOARD OF COUNTY COMMISSIONERS
OF SANTA FE COUNTY,

       Appellee-Petitioner,

and

MARK ALEXANDER, MARTHA ALEXANDER,
EDWARD STAINTON, and CHRISTINE STAINTON,

       Intervenors-Petitioners.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Daniel A. Sanchez, District Judge

Karl H. Sommer & Associates, P.A.
Karl H. Sommer
Joseph M. Karnes
Santa Fe, NM

for Respondents

Stephen C. Ross, County Attorney
Sue A. Herrmann, Assistant County Attorney
Santa Fe, NM

for Petitioner

Rubin Katz Law Firm, P.C.

                                        1
James B. Alley, Jr.
Frank T. Herdman
Santa Fe, NM

for Intervenors

                                          OPINION

VIGIL, Judge.

{1}     This case is before us on a writ of certiorari to review a decision of the district court
that certain interspousal transfers of land fall within the Family Transfer provisions of the
Santa Fe County Land Development Code (Code), Santa Fe County, N.M., Ordinance 1996-
10 (1996), and are therefore exempt from subdivision requirements of the Code. We affirm.

BACKGROUND

{2}     This case involves an eighty-acre tract of land1 that is subject to the Code, a zoning
ordinance adopted and enforced by the Board of County Commissioners of Santa Fe County
(Board). The eighty-acre tract of land was originally owned by Teme, Ltd., a partnership,
which consisted of the two Kirkpatrick brothers and their wives. In a transaction not in
dispute here, the Board gave administrative approval to Teme, Ltd. to divide the eighty acres
into four twenty-acre parcels. The partnership subsequently deeded to each brother, “a
married man as his sole and separate property” two twenty-acre parcels. Each brother, “a
married man as his sole and separate property” then deeded to his respective wife a twenty-
acre parcel “as her sole and separate property.” The result was that each of the four
individuals (Landowners) owned a separate twenty-acre parcel as his or her sole and separate
property.

{3}     A Family Transfer application was then submitted on behalf of Landowners to the
County Land Use Administrator to allow each Landowner to deed to his or her respective
spouse one-half of each twenty-acre parcel, as “his [or her] sole and separate property.” If
approved, the result would be eight ten-acre lots, with each separately owned by a
Landowner as his or her “sole and separate property.” The application was submitted
pursuant to Article II, Section 2.3.1 of the Code, a provision permitting what we herein refer
to as a Family Transfer.

{4}     County Land Use Planning staff confirmed that the application met all applicable


¹The actual acreage of the tract of land is slightly larger than eighty acres. However, for
convenience, we use the round figure of eighty acres. For the same reason, we refer to
twenty-acre and ten-acre lots or parcels, which resulted from the division of the original
eighty acres, although they are also slightly larger.

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Code requirements for a Family Transfer and concluded that the resulting eight lots complied
with all applicable development requirements of the Code, including water supply, fire
protection, and adequate road access. The Land Use Administrator agreed with staff and
approved the application. Each Landowner thereupon donated as a gift to his or her spouse
one newly created ten-acre parcel. Landowners made the foregoing transactions in order to
transfer portions of their property to their children and grandchildren and avoid triggering
gift tax liability.

{5}     Neighbors of Landowners (Intervenors) appealed to the County Development
Review Committee (CDRC), contending that the transfer did not satisfy the intent and
purpose of a Family Transfer. Staff recommended denying the appeal on grounds that the
transfer complied with Code requirements, and the appeal was denied.

{6}     Intervenors then appealed to the Board on the same grounds they appealed to the
CDRC. Staff again recommended denial of the appeal. Counsel for Intervenors conceded
that the transaction literally complied with the Code definition of a Family Transfer, but
argued that the intent and purpose of a Family Transfer was not satisfied because the transfer
was not intergenerational (i.e., from one generation to another) and that “viewing the
transaction as a whole,” the eighty-acre tract was subdivided without compliance with
subdivision regulations into eight lots from four, because after all the transactions were
completed, Landowners still owned the eighty acres. Counsel for Intervenors argued that
the Family Transfer provision was included in the Code to recognize a Hispanic cultural
tradition of parents giving portions of the family homestead to their children without having
to go through the subdivision process.

{7}     In a split decision, the Board overturned the decision of the Land Use Administrator
and denied the application for a Family Transfer. Pertinent to this appeal, in its written
order, the Board found that the intent of the Family Transfer provision was not to avoid tax
consequences but rather to “maintain local cultural values by perpetuating and protecting a
traditional method of land transfer within families, especially within the traditional
communities.” The Board also found that upon the grant of a Family Transfer “a new
member of the applicant’s family should secure an ownership interest in land not previously
owned by that family member.” Finally, the Board found that the “proposed division and
distribution of land is more like a subdivision than a family land transfer and must comply
with all subdivision review procedures and requirements.”

{8}      Landowners appealed the Board decision to the district court on the grounds that the
Board had acted in an arbitrary, capricious, or illegal manner by: (1) denying Landowners’
application although they complied with all Code requirements, and (2) treating Landowners
differently by denying their application while approving other similar applications.
Intervenors filed a motion to intervene, which was granted. Following oral argument, the
district court determined that Section 2.3.1 of the Code is applicable to the Landowners’
application, and it does not contain a statement of purpose or intent requirement regarding
family transfers or a requirement that a new family member secure an ownership interest

                                              3
upon a family transfer. The district court further concluded that the Landowners’ application
satisfied all applicable Code requirements for a Family Transfer and remanded the case to
the Board to vacate its decision on the basis that the Board decision was improper and not
in accordance with the Code.

{9}     Intervenors filed a petition for a writ of certiorari to review the district court decision
in this Court in which the Board joined. We granted the petition.

DISCUSSION

Standard of Review

{10} 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. See Gallup Westside Dev., LLC v. City of Gallup, 2004-NMCA-
010, ¶ 10, 135 N.M. 30, 84 P.3d 78. That is, we review the Board decision to determine if
the administrative decision is arbitrary, capricious, or an abuse of discretion; not supported
by substantial evidence in the record; or otherwise not in accordance with the law, in the
same way the district court did in its appellate capacity. Id.; see NMSA 1978, § 39-3-1.1(D)
(1999); Rule 1-074(Q) NMRA.

{11} Interpretation of an ordinance is a matter of law subject to our de novo review using
the same rules of construction applicable to statutes. See High Ridge Hinkle Joint Venture
v. City of Albuquerque, 1998-NMSC-050, ¶ 4, 126 N.M. 413, 970 P.2d 599. We follow
three rules of statutory construction:

                The first rule is that the plain language of a statute is the primary
        indicator of legislative intent. Courts are to give the words used in the statute
        their ordinary meaning unless the legislature indicates a different intent. The
        court will not read into a statute or ordinance language which is not there,
        particularly if it makes sense as written. The second rule is to give
        persuasive weight to long-standing administrative constructions of statutes
        by the agency charged with administering them. The third rule dictates that
        where several sections of a statute are involved, they must be read together
        so that all parts are given effect.

Id. ¶ 5 (internal quotation marks and citations omitted).

Code Requirement for a Family Transfer

{12} One transfer that the Code exempts from its subdivision regulations is a Family
Transfer, which is described in the following language in Section 2.3.1a(ii)(h) of the Code:

        The division of land to create a parcel that is sold or donated as a gift to an

                                                4
       immediate family member (as defined in Article X); however, this exception
       shall be limited to allow the seller or donor to sell or give no more than one
       parcel per tract of land per immediate family member. Divisions made under
       this exception will be referred to throughout the Code as Family Transfers[.]

Article X, Section 1.66 of the Code defines the phrase “Immediate Family Member” to
include a “husband, wife, father, stepfather, mother, stepmother, brother, stepbrother, sister,
stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter,
stepgranddaughter, nephew and niece.”2 We agree with Landowners that Section 2.3.1 is
clear and unambiguous. A Family Transfer application must (1) create a parcel that is sold
or donated, (2) to an “immediate family member,” and (3) a seller or donor can give no more
than one parcel per “immediate family member.” No other requirements are necessary.
Specifically, the Family Transfer provision has no “intent” or “purpose” requirements. If
the requirements are satisfied, the application must be granted.

{13} In this case, (1) each Landowner applied to donate a parcel from a tract of land he
or she owns to a spouse, (2) each husband and wife is an “immediate family member”, and
(3) each Landowner proposed to donate no more that one parcel per tract of land to his or
her spouse. Under the plain, unambiguous terms of the Code, each transaction constituted
a permissible Family Transfer. As such, no subdivision regulations of the Code were
applicable. Unless otherwise justified, the Board failed to act in compliance with its own
Code in ordering that the applications be denied, and the district court correctly reversed the
Board decision. We therefore address whether the action of the Board was otherwise proper.

Intended Purpose Requirement

{14} The Board states, “The sole question before this Court is whether the [Board] acted
in accordance with law when it found that the transfers at issue did not meet the intended
purpose of the County’s [F]amily [T]ransfer ordinance.” Intervenors also argue that the
transfers violated the “obvious purpose” of the Family Transfer ordinance. Both argue that
the “Purposes” section of Article II, Section 4.3.1 of the Code applies to this case, even
though the applications were filed for approval pursuant to Section 2.3.1 and not Section


²Although not before us in this case, the parties advise us that the New Mexico Subdivision
Act contains similar provisions in almost identical language. Specifically exempted from
the definition of a subdivision is “the division of land to create a parcel that is sold or
donated as a gift to an immediate family member; however, this exception shall be limited
to allow the seller or donor to sell or give no more than one parcel per tract of land per
immediate family member.” NMSA 1978, § 47-6-2(L)(9) (2005) (amended 2005). The Act
defines “immediate family member” to mean “a husband, wife, father, stepfather, mother,
stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter,
grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece, whether
related by natural birth or adoption.” Section 47-6-2(D).

                                              5
4.3.1. We disagree.

{15} Section 4.3 is entitled “Small Lot Inheritance and Small Lot Family Transfer.” This
section permits the creation of a lot from an existing family lot by inheritance or family
transfer, which does not satisfy Code lot-size requirements. Section 4.3.1 states that the
“Purposes” of this section are:

       4.3.1a.         To maintain local cultural values by perpetuating and
                       protecting a traditional method of land transfer within
                       families, especially within the traditional communities; and

       4.3.1b          To permit transfers of lots which do not meet the lot size
                       requirements of the Code from grandparents, parents or legal
                       guardians as a one time gift to a child or grandchild in order
                       to provide a more affordable home site for these adult
                       children.

{16} The Board asserts that the Code provides for two categories of family transfers:
transfers where there is sufficient property to meet minimum lot-size requirements; and
transfers where there is not sufficient property to meet minimum lot-size requirements.
However, the Board asserts, in both circumstances, the nature and purpose of a family
transfer remains the same. Since all family transfers are divisions of land to create a parcel
that is sold or donated as a gift to a family member and all such transfers are exempt from
subdivision requirements, the Board argues that the purposes set forth in Section 4.3.1 must
apply to all family transfers.

{17} The Board argues that the purposes set forth in Section 4.3.1 are violated because the
transfers are being used as a mechanism for avoiding gift taxes and result in the land
remaining under the ownership of Landowners. Furthermore, the Board asserts that there
was “no indication that any [Landowner] family member ever would live there,” although
it acknowledges that there was evidence that one child had started a home. Finally, the
Board points out, the deeds among Landowners were executed after Landowners applied for
the Family Transfer, and the deeds were not recorded. The Board concludes, “This series
of transactions demonstrates that the proposed transfer was more like a subdivision than a
family transfer.” Intervenors contend the transactions violate the Section 4.3.1 purposes
because, “Nowhere does the definition of ‘family transfer’ or any statutory language in the
Code about the purpose of a family transfer suggest that the trading of lots between spouses
who already own the land traded constitutes a valid ‘family transfer’ under the Code.”

{18} The Board argues that we should defer to its interpretation of the Code in this case
because it authored the family transfer provisions in Sections 2.3.1 and 4.3.1 of the Code,
and their interpretation involves special agency expertise. See High Ridge Hinkle Joint
Venture, 1998-NMSC-050, ¶ 5 (stating that the second rule for construing a statute or
ordinance is to “give persuasive weight to long-standing administrative constructions of

                                              6
statutes by the agency charged with administering them”) (internal quotation marks and
citation omitted); Alba v. Peoples Energy Res. Corp., 2004-NMCA-084, ¶ 22, 136 N.M. 79,
94 P.3d 822 (stating that even if an agency’s interpretation of its ordinance is not long-
standing, a court may still give some deference to the agency’s interpretation). We decline
to do so because we conclude that the Board’s interpretation is unreasonable and unlawful.
See id. ¶ 23 (stating that we will adopt the agency’s interpretation of its ordinance where it
is not unreasonable or unlawful).

{19} The Board and Intervenors overlook the fact that Landowners applied under Section
2.3.1 of the Code, which is completely apart from Section 4.3. Section 4.3.1 refers to an
entirely different type of family transfer with different requirements than a Family Transfer
under Section 2.3.1. Transfers under 2.3.1 fall under the category “where there is sufficient
property to meet density requirements, i.e., minimum lot sizes.” The minimum lot size in
this Mountain Hydrologic Zone can be as small as 2.5 acres per dwelling as long as water
is available. Here, Landowners’ geo-hydrology report with their application was reviewed
by the County’s hydrologist, who concluded that the existing well on the property could
support eight ten-acre lots. Thus, the transfer fell under Section 2.3, and not under Section
4.3 for small-lot family transfers. For the special purposes stated, Section 4.3 allows family
transfers that will result in the creation of lots that do not satisfy Code lot-size requirements.
In addition, Section 4.3 contains several prerequisites for such transfers that are simply not
required for a Section 2.3.1 Family Transfer: (1) the lot must be created by intergenerational
gift (i.e., to a child or grandchild); (2) the applicant must submit proof that the land has been
in the lawful possession of the family proper for no less than five years prior to the
application; (3) the applicant must submit proof that the recipient is an adult or emancipated
minor; (4) there must be a notation on the plat that the lot was created per the small-lot
family transfer section of the Code; (5) there must be a notice mailed to all persons within
100 feet; and (6) there must be an affidavit that the person transferring the property has not
transferred any other lots to the recipient.

{20} Furthermore, Section 2.3.1 makes no reference to the requirements of Section 4.3.
Any applicant seeking to transfer land to an “immediate family member” via Section 2.3.1
would be entirely unaware that he or she needed to comply with the “Purposes” requirements
of Section 4.3.1. We do not defer to the Board’s interpretation if it would lead to such an
unreasonable result. See Aztec Well Servicing Co. v. Prop. & Cas. Ins. Guar. Ass’n, 115
N.M. 475, 479, 853 P.2d 726, 730 (1993) (“Our interpretation of the statute must be
consistent with legislative intent, and our construction must not render the statute’s
application absurd, unreasonable, or unjust.”).

{21} The Board and Intervenors attempt to bolster their argument that the “Purposes” in
Section 4.3.1 apply to all family transfers by citing statements made by Intervenors’ counsel
at the Board hearing that counsel was on a committee with the person who “came up with
the family transfer” in 1979, and that the motivation behind the creation of family transfers
was to protect a Hispanic tradition of passing land on to children so that the children could
live on the same land. We assume, without deciding, that the Board could properly consider

                                                7
counsel’s statements as indicative of legislative intent. This description of the intent behind
family transfers aligns with both Section 4.3’s “Purposes” and Section 4.3’s requirements.
However, these purposes and requirements, by their terms, do not apply to a Section 2.3.1
Family Transfer because Section 2.3.1 is for lots that meet density requirements. Thus, we
conclude that the legislative intent described by Intervenors’ counsel does not apply to
family transfers under Section 2.3.1.

{22} For the foregoing reasons we conclude that the district court correctly determined
that the “Purposes” set forth in Section 4.3.1 were not a proper basis for the Board to deny
Landowners’ application for a Family Transfer under Section 2.3.1.

No Previous Ownership Requirement

{23} Intervenors argue that the plain meanings of the words “sold” and “donated” in
Section 2.3.1 require that something be transferred “from one person to another.” Consistent
with this argument, the Board found that in a Family Transfer, a family member should gain
an ownership interest in land that he or she did not previously own. However, the proposed
family transfers between the spouses effectively transferred an interest from “one person to
another.” Furthermore, in the deeds executed to effect the proposed family transfers, each
Landowner divided an individual twenty-acre lot to create a new ten-acre lot that did not
exist prior to the division. Upon approval of the application, the grantee would receive an
ownership interest in a lot that did not previously exist. Therefore, each Landowner would
receive something that he or she did not already own, because the transferred interest did not
exist prior to the division.

{24} We therefore conclude that Section 2.3.1 was not violated by the transaction set forth
in Landowners’ application for a Family Transfer.

Equal Protection

{25} Because we affirm the district court order on the above grounds, we do not reach the
issue of whether Landowners were denied equal protection of the law when the Board denied
their application.

CONCLUSION

{26}   The decision of the district court is affirmed.

{27}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL E. VIGIL, Judge

WE CONCUR:

                                              8
____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
CELIA FOY CASTILLO, Judge

Topic Index for Kirkpatrick v. Bd. of County Commissioners of Santa Fe County, No.
27,842

AL                  ADMINISTRATIVE LAW AND PROCEDURE
AL-AA               Administrative Appeal
AL-AC               Arbitrary and Capricious Actions
AL-JR               Judicial Review
AL-LI               Legislative Intent

GV                  GOVERNMENT
GV-CU               Counties
GV-LU               Land Use
GV-SU               Subdivisions
GV-ZL               Zoning Law

PR                  PROPERTY
PR-CY               Conveyances
PR-GF               Gifts
PR-SU               Subdivisions




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