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                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 14:14:51 2011.11.23

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-114

Filing Date: October 4, 2011

Docket No. 30,264

NICK RICCI, LYNDA RICCI, MEADE
ESTATE NEIGHBORHOOD ASSOCIATION,
FRANK CHAVEZ, WILLIAM ACEVES, JR.,
WILLIAM ACEVES, IRMA ACEVES,
DEBORAH HALL, KENNETH TISDALE,
DANIEL ORTEGA, and ROXANNE ORTEGA,

       Petitioners-Appellants,

v.

BERNALILLO COUNTY BOARD OF
COUNTY COMMISSIONERS,

       Respondent-Appellee,

and

ALBUQUERQUE EXCAVATORS, INC.,
LORETTA CHAVEZ, and WILLIAM F. DAVIS,

       Interested Parties.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Geraldine E. Rivera, District Judge

Oman & Yntema P.A.
Hessel E. Yntema, III
Albuquerque, NM

for Appellants
Bernalillo County
Jeffrey Landers, County Attorney
Patrick F. Trujillo, Deputy County Attorney
Albuquerque, NM


                                              1
for Appellee

                                          OPINION

SUTIN, Judge.

{1}      Petitioners-Appellants (Petitioners), who are neighbors of property to be developed
into a residential subdivision were unsuccessful in their attempt, before the Bernalillo
County Board of County Commissioners (the board), to stop a developer from removing
certain material in the ground before construction of the subdivision. The material being
removed had commercial value in and of itself. The board approved issuance of a special-
use permit for the excavation and removal of the material. Petitioners unsuccessfully
appealed to the district court, and now, on certiorari, they ask this Court to reverse the
district court with remand to the board. Petitioners assert that the board failed to employ the
correct standard for issuance of a special-use permit.

{2}    The dispute regarding the correct standard for issuance of a special-use permit is
whether an administratively adopted standard for issuance of special-use permits should
include additional criteria that our Supreme Court established for approval of a zone map
change in Albuquerque Commons Partnership v. City Council of Albuquerque (ACP), 2008-
NMSC-025, 144 N.M. 99, 184 P.3d 411. We hold that the board was not required to employ
the ACP criteria in considering issuance of the special-use permit.

BACKGROUND

{3}     The petition for a writ of certiorari filed by Petitioners, stems from their unsuccessful
appeal to the district court from a decision of the board. The board approved an application
for a special-use permit for mining, excavating, removing, processing, and stockpiling. This
work was to be done in connection with development of a subdivision. The district court
affirmed the findings and decision of the board. The applicants for the special-use permit
were Loretta Chavez, the owner of property to be developed, whom we refer to as
“Developer,” and Albuquerque Excavators, Inc. (Excavators), the company hired to perform
the work permitted under the special-use permit. Developer and Excavators were Interested
Parties in the district court proceeding.

The Administrative Proceedings

{4}     Developer applied to Bernalillo County (the county) to develop a thirty-one unit
subdivision on an approximate fifty-six acre site, following which a grading and drainage
plan was approved by the county. In the process of grading and draining, it was discovered
that the soil underneath the property was rich in aggregate material, sand, and gravel.
Developer determined that it would be worthwhile to remove the material because it was
valuable and because the material would ultimately have to be removed to develop the lot.
When Excavators started the removal, the county issued a zoning violation citation based on

                                               2
rock removing activity. Consequently, Developer and Excavators applied for the special-use
permit.

{5}     The Bernalillo County Planning Commission (the planning commission) denied the
application for a special-use permit, concluding that because the site was located next to a
residential area, it would be detrimental to the residential area, and also concluding that
Developer failed to demonstrate that the existing A-1 zoning was inappropriate. Developer
appealed the planning commission’s denial of the special-use permit to the board, and the
board reversed the planning commission’s determination and granted the special-use permit.

{6}      Specifically, the board found that the request for the special-use permit was
consistent with County Zoning Ordinance Resolution 116-86 and Policies of the Rural Area
Section of the Albuquerque/Bernalillo County Comprehensive Plan (the plan) in that the site
was near other sand and gravel sites and was not near highly scenic or prime recreational
areas. The board also found the request to be consistent with a Resolution 116-86 “more
advantageous to the community” standard, on the ground that the “land use is more
advantageous to the community since it encourages a small-scale, locally owned and
operated industry and reduces the need to travel as articulated in Policies 3.g, 6.a, 6.b [and]
6.g of the . . . [p]lan.” The board further determined that the request was consistent with the
health, safety, and general welfare of residents of the county, a requirement also contained
in Resolution 116-86. The board imposed a number of conditions on the permit. The
conditions consisted of a substantial number of requirements and restrictions, and the permit
was issued for two years.

The District Court’s Decision

{7}     Petitioners raised only one issue in their appeal to the district court from the decision
of the board: whether the board applied the wrong legal standard in approving the Interested
Parties’ request for a special-use permit. In the district court, Petitioners asserted that when
applying the standard of “more advantageous to the community,” the board did not act in
accordance with the law because the board failed to specifically find that “(1) there is a
public need for a change of the kind in question, and (2) that need will be best served by
changing the classification of the particular piece of property in question as compared with
other available property[,]” as stated by our Supreme Court in ACP, 2008-NMSC-025, ¶ 30,
and reiterated in Albuquerque Commons Partnership v. City Council of Albuquerque, 2009-
NMCA-065, ¶ 16, 146 N.M. 568, 212 P.3d 1122, rev’d on other grounds, 2011-NMSC-002,
149 N.M. 308, 248 P.3d 856.

{8}    According to the district court, the board’s response in the district court was that ACP
did not apply to special-use permits but applied to zone map downzoning circumstances
only, as reflected by the fact that the findings required in ACP were preceded by the
following reference to downzoning from ACP, 2008-NMSC-025, ¶ 30.




                                               3
       [The resolution] adequately accommodates the need for planning and zoning
       flexibility. Therefore, without adopting any absolute standards or
       mechanical tests, we recognize that a municipality may be able to justify an
       amendment that downzones a particular property by demonstrating that the
       change is “more advantageous to the community, as articulated in the
       [c]omprehensive [p]lan or other [c]ity master plan.” The proof in such a case
       would have to show, at a minimum, that “. . . there is a public need for a
       change . . . .”

(Emphasis added.) (Citations omitted.) The district court indicated further that the board
had asserted that the word such, found in the last sentence of the quoted material, can only
refer to a downzoning case because of the language that precedes the word. The district
court read the board’s position to be that, because the case before the board did not involve
downzoning, Interested Parties did not have to meet the additional criteria in ACP in order
to obtain a special-use permit. And the district court noted that the board distinguished ACP
on the ground that Interested Parties were not seeking a zone change but were merely
seeking a special-use permit under the existing zoning of A-1, and the court further noted
that after two years the special use would cease to be and the site would revert to A-1 zoning
without a special-use overlay.

{9}      The district court’s rationale for affirming the findings of the board and the board’s
decision was based in part on its analysis of Miller v. City of Albuquerque, 89 N.M. 503, 554
P.2d 665 (1976), and a later case relating to zoning. Miller involved review of a zone
change approved by a city commission, and it set out a standard for zone changes called the
“change-or-mistake rule.” See id. at 506, 554 P.2d at 668 (“The fundamental justification
for an amendatory or repealing zoning ordinance is a change of conditions making the
amendment or repeal reasonably necessary to protect the public interest. Also, a zoning
amendment may cover and perfect previous defective ordinances or correct mistakes or
injustices therein.” (internal quotation marks and citation omitted)). The district court stated
that the later decision, W. Old Town Neighborhood Ass’n v. City of Albuquerque, 1996-
NMCA-107, ¶ 23, 122 N.M. 495, 927 P.2d 529, superseded by statute on other grounds as
stated in C.F.T. Dev., LLC v. Bd. of Cnty. Comm’rs, 2001-NMCA-069, 130 N.M. 775, 32
P.3d 7841, clarified that Miller did not apply only to rezonings and downzonings. The
district court noted that “the ‘more advantageous to the community’ standard” was “the
subsequently added third element” to the change-or-mistake rule.

{10} Turning then to ACP, the district court quoted ACP’s statement that “New Mexico
courts have not limited the Miller rule’s applicability to piecemeal rezonings of single
parcels, but have extended it to downzonings done pursuant to a comprehensive plan, and
even to an upzoning of a specific property upon petition of the landowner.” ACP, 2008-


       1
         C.F.T. Dev., LLC was overruled on other grounds by Rio Grande Chapter of Sierra
Club v. N.M. Mining Comm’n, 2003-NMSC-005, 133 N.M. 97, 61 P.3d 806.

                                               4
NMSC-025, ¶ 26. The district court concluded that “[a] special-use permit, however, is
neither a rezoning, a downzoning or an upzoning[,]” referring to language in Embudo
Canyon Neighborhood Ass’n v. City of Albuquerque, 1998-NMCA-171, ¶ 16, 126 N.M. 327,
968 P.2d 1190, superseded by statute on other grounds as stated in C.F.T. Dev., LLC, 2001-
NMCA-069. Therefore, the district court reasoned, “the enhanced criteria stated in ACP
[did] not apply[,]” and the board was required to find only that a different use category
would be more advantageous to the community under the factors employed by the board.
Accordingly, in the district court’s view the board’s decision was in accordance with the law,
as it was based on the correct legal standard and because the enhanced standard from ACP
that Petitioners required did not apply to special-use permits.

DISCUSSION

{11} Petitioners fault the board for failing to apply the standards of proof required in ACP
when considering the “more advantageous to the community” standard. This failure,
according to Petitioners, resulted in an approval of the special-use permit that was not in
accordance with law. Petitioners ask this Court to reverse and remand for the board to
evaluate whether the special-use permit would be more advantageous to the community
under the standards of proof established in ACP.

Standard of Review

{12} The standards of review on appeal to the district court from an administrative
decision are well established in our cases. See Gallup Westside Dev., LLC v. City of Gallup,
2004-NMCA-010, ¶ 10, 135 N.M. 30, 84 P.3d 78; Siesta Hills Neighborhood Ass’n v. City
of Albuquerque, 1998-NMCA-028, ¶ 6, 124 N.M. 670, 954 P.2d 102; W. Old Town
Neighborhood, 1996-NMCA-107, ¶ 11. We apply the same administrative standards of
review. Rio Grande Chapter, 2003-NMSC-005, ¶ 16; see NMSA 1978, § 39-3-1.1(D)
(1999); Rule 1-075(R) NMRA. We review whether a ruling by an administrative agency is
in accordance with the law de novo. Clark v. N.M. Children, Youth & Families Dep’t, 1999-
NMCA-114, ¶ 7, 128 N.M. 18, 988 P.2d 888.

Consideration of ACP Criteria When Approving a Special-Use Permit

{13} The planning commission’s determination in the record before us states that
Resolution 116-86 defines criteria for evaluating zone map changes and special-use permit
applications. This planning commission document sets out nine “policies for deciding zone
map changes and [special-use] [p]ermit applications[.]” One of the nine policies notably
contains change-or-mistake criteria plus a third factor, more advantageous to the community.
It reads:

       E.      The applicant must demonstrate that the existing zoning is
               inappropriate because:


                                              5
               1.      An error in the original zone map[;]

               2.      Changed neighborhood conditions, which justifies a change
                       in land use[;] or

               3.      That a different use category is more advantageous to the
                       community as articulated in the . . . [p]lan or other land use
                       plans as adopted by the [b]oard[.]

Petitioners assert that under Resolution 116-86 this policy is applicable equally to zone map
changes and special-use permits.

{14} In ACP, our Supreme Court stated, in the context of a zone map amendment resulting
in downzoning a property, that “a municipality may be able to justify an amendment that
downzones a particular property by demonstrating that the change is more advantageous to
the community, as articulated in the [c]omprehensive [p]lan or other [c]ity master plan[,]”
but that “[t]he proof in such a case would have to show, at a minimum, that ‘(1) there is a
public need for a change of the kind in question, and (2) that need will be best served by
changing the classification of the particular piece of property in question as compared with
other available property.” ACP, 2008-NMSC-025, ¶ 30 (internal quotation marks and
citations omitted).

{15} While acknowledging that ACP is not a special-use permit case, Petitioners contend
that its reasoning applies to special-use permits, particularly where, as here, the county
zoning code requires the same treatment for special-use permits as for zone map changes.
See Cadena v. Bernalillo Cnty. Bd. of Comm’rs, 2006-NMCA-036, ¶ 9, 139 N.M. 300, 131
P.3d 687 (stating that “when invoked, [Resolution 116-86] . . . imposes substantive and
procedural guidelines for any zone map changes and applications for special-use permits”
(alteration omitted) (internal quotation marks and citation omitted)). In the same breath,
Petitioners reject, as an incorrect reading of New Mexico law, the board’s argument that
ACP applies to downzoning only and not to a zone change, arguing that the case from which
ACP obtained its standards for the downzoning involved a zone change from “single family
residential” to “planned residential” and did not involve either “downzoning” or “upzoning.”
See Fasano v. Bd. of Cnty. Comm’rs, 507 P.2d 23, 28-30 (Or. 1973) (en banc) (requiring
proof that for a change in conformance with the comprehensive plan, at a minimum, there
should be proof that (1) there is a public need for a change of the kind in question, and (2)
that need will be best served by changing the classification of the particular piece of property
in question as compared to other available property), superseded by statute/rule as stated in
Menges v. Bd. of Cnty. Comm’rs, 606 P.2d 681 (Or. Ct. App. 1980); see also Embudo
Canyon, 1998-NMCA-171, ¶¶ 17-18 (distinguishing special-use permits and zone changes,
but, according to Petitioners, treating the requested special-use permit like a zone change
because the city’s ordinance required application for a zone change, not a special-use
permit). A final attack on the board’s decision is that it constitutes nothing more than an ad
hoc determination lacking in discernable standards. Petitioners seek greater definitional

                                               6
protection against unfettered discretion through application of the ACP criteria since those
standards provide “certain policies and uniform rules of action” and limit the “wide
discretion to grant [special-use] permits as ‘more advantageous to the community[.]’” For
these reasons, Petitioners contend that the board’s failure to address the ACP standards in
relation to the approval of the special-use permit resulted in an approval that was not in
accordance with law.

{16} We are not persuaded by Petitioners’ arguments. Nothing in ACP indicates that its
enhanced approval criteria were intended to apply to temporary special-use permits. We are
not going to expand ACP’s zoning context involving restrictive and durationally
indeterminate zone map changes to circumstances in which a developer seeks to temporarily
lessen a restrictive zoning under a limited-in-time, special-use permit. We leave it to our
Supreme Court to consider whether the additional definitional criteria it required for a zone
map change are suited equally for special-use permits.

The Dissent

{17} Judge Garcia’s dissenting view essentially adopts Petitioners’ logic, which is that (1)
ACP applies to zoning under Resolution 116-86, (2) Resolution 116-86 applies equally to
zoning and special use permits, therefore, (3) ACP applies to special-use permits. The
concern we have with the logic is that ACP’s judicially adopted enhanced criteria are not in
the Resolution; ACP did not apply its enhanced criteria to anything but zoning; and in
construing its own resolution, the board could have applied, but refused to apply, ACP’s
enhanced criteria to special-use permits. Nothing in ACP, as we read it, indicates that the
Resolution must, as a matter of law, be read to incorporate the judicially created enhanced
criteria as necessarily applicable to both zoning and special-use permits. Because the
enhanced criteria came into existence solely through judicial adoption to be applied to
zoning, we think it is more appropriate to leave to our Supreme Court the requirement, as
a matter of law, that the enhanced criteria be applied under the Resolution to special-use
permits.

CONCLUSION

{18} We affirm the decision of the district court. The board’s refusal to apply the ACP
criteria required in considering a governmental entity’s proposed zone map change to
consideration of issuance of a limited, less restrictive, special-use permit was in accordance
with law.

{19}   IT IS SO ORDERED.

                                              ____________________________________
                                              JONATHAN B. SUTIN, Judge

I CONCUR:

                                              7
____________________________________
CELIA FOY CASTILLO, Chief Judge

TIMOTHY L. GARCIA, Judge (dissenting).

GARCIA, Judge, (dissenting).

{20} I respectfully disagree with the majority and would apply the criteria set forth in ACP
and Miller to a special-use permit under Resolution 116-86.

{21} County Resolution 116-86 was adopted to apply an identical application criteria for
zone changes and special-use permits. The County chose to adopt the same policies,
procedures, and criteria to all the potential changes contemplated by applications submitted
under Resolution 116-86. “A municipal legislative body is bound to follow the regulations
it has adopted, in the exercise of its delegated legislative power.” Miller, 89 N.M. at 507, 554
P.2d at 669. The factual findings necessary to satisfy the more advantageous to the
community criteria require “proof in such a case would have to show, at a minimum, that .
. . there is a public need for a change of the kind in question[.]” ACP, 2008-NMSC-025, ¶
30 (internal quotation marks and citation omitted). “[B]ecause such changes must be
justified pursuant to the Miller rule and Resolution [116-86] (or a similar local policy), they
require specific factual findings relating to the affected properties.” ACP, 2008-NMSC-025,
¶ 32; see Miller, 89 N.M. at 506, 554 P.2d at 668.

{22} Although the present case factually differs from the downzoning changes in ACP and
Miller, the uniform criteria identified in Resolution 116-86 is not limited to zoning changes
and must also be applied to special-use permits placed within the same resolution. Special-
use permits, like small scale zone changes are usually restricted to identifiable persons or
groups and would be considered quasi-judicial actions rather than legislative actions. See
ACP, 2008-NMSC-025, ¶ 32. Because such small-scale zoning changes must be justifiable
under the Miller rule and the applicable resolution, applying a different criteria to special-use
permits that have been intentionally placed within the same land-use regulation is illogical.
Rigid application of the Miller rule is not always necessary to protect the beneficial interests
of the community at large. ACP, 2008-NMSC-025, ¶ 30. Through this dissent, I do not
suggest that the County was legally incapable of applying a less restrictive criteria for the
quasi-judicial review of a special-use permit application. It was the County’s decision to
identify only one criteria to be applied to zoning changes and special-use permits under
Resolution 116-86 that is determinative in this case. Where a more restrictive judicial
criteria is required when determining whether a small-scale zoning application is “more
advantageous to the community,” there is no reason the County does not have the right to
impose this same restrictive criteria on other small-scale special-use applications that are
quasi-judicial. By intentionally including special-use permits under the same zoning
resolution adopted by the County, the more restrictive criteria must now be imposed for both
types of applications. Once the same criteria is applied, ACP and Miller require a finding
and determination that the public’s needs and interests are protected by the necessary change

                                               8
being proposed for the property. See ACP, 2008-NMSC-025, ¶ 30; Miller, 89 N.M. at 506,
554 P.2d at 668.

{23} I would reverse and remand this case to the district court with instructions to examine
the record to determine whether the board’s decision was supported by proof and to make
findings establishing that there was a public need for the change contemplated by the
application for a special-use permit. For the reasons stated herein, I dissent.

                                             ____________________________________
                                             TIMOTHY L. GARCIA, Judge

Topic Index for Ricci v. Bernalillo Co. BCC, No. 30,264

AL                    ADMINISTRATIVE LAW AND PROCEDURE
AL-AA                 Administrative Appeal
AL-JR                 Judicial Review
AL-SC                 Scope of Review

AE                    APPEAL AND ERROR
AE-SR                 Standard of Review

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

PR                    PROPERTY
PR-MR                 Mineral Resources




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