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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 IN THE MATTER OF THE PETITION
 3 FOR A HEARING ON THE MERITS
 4 REGARDING AIR QUALITY PERMIT NO. 1677-M2

 5 ANDY CARRASCO, PAT TOLEDO,
 6 and DEMPSEY POWER,

 7          Petitioners-Appellants,

 8 v.                                                                    NO. 33,269

 9 THE CITY OF ALBUQUERQUE and
10 SMITH’S FOOD & DRUG CENTERS, INC.,

11          Respondents-Appellees.

12 APPEAL FROM THE ALBUQUERQUE/BERNALILLO COUNTY AIR
13 QUALITY CONTROL BOARD
14 Felicia L. Orth, Hearing Officer

15   Domenici Law Firm
16   Pete Domenici, Jr.
17   Lorraine Hollingsworth
18   Albuquerque, NM

19 for Appellants

20   City of Albuquerque
21   David Tourek, City Attorney
22   Carol M. Parker, Assistant City Attorney
23   Donna J. Griffin, Assistant City Attorney
24   Albuquerque, NM
 1 ABC-AQCB
 2 Felicia L. Orth
 3 Albuquerque, NM

 4 for Appellee City of Albuquerque

 5   Sutin, Thayer & Browne, P.C.
 6   Frank C. Salazar
 7   Timothy J. Atler
 8   Albuquerque, NM

 9 for Appellee Smith’s Food & Drug Centers, Inc.

10                             MEMORANDUM OPINION

11 FRY, Judge.

12   {1}   This case is an administrative appeal from the Albuquerque-Bernalillo County

13 Air Quality Control Board’s (the Board) dismissal of Petitioners’ petition for a hearing

14 based on lack of standing. Petitioners were challenging Smith’s Food and Drug

15 Centers, Inc.’s permit modification request that would allow it to increase the amount

16 of fuel it dispensed at a filling station located near the intersection of Central and

17 Tramway in Albuquerque, N.M. Petitioners argue that the Board erred in dismissing

18 their petition because, in regard to Petitioners Toledo and Carrasco, they were

19 adversely affected by the City of Albuquerque Environmental Health Department’s

20 (EHD) refusal to hold a public hearing, and, in regard to Petitioner Power, his failure

21 to participate in the permitting action was due to inadequate notice. We conclude that

22 the Board properly determined that Petitioner Power did not have standing to appeal


                                              2
 1 the issuance of the permit because he failed to show that his failure to participate in

 2 the permitting action was due to legally insufficient notice. However, we conclude

 3 that the Board erred in determining that Petitioners Toledo and Carrasco did not have

 4 standing to appeal the EHD’s refusal to hold a public hearing. Accordingly, we

 5 reverse in regard to Petitioners Toledo and Carrasco and affirm in regard to Petitioner

 6 Power.

 7 BACKGROUND

 8   {2}   Smith’s submitted an application to the EHD to modify an existing air quality

 9 permit to allow it to increase the amount of fuel it dispensed at the filling station at

10 issue. The EHD published notice of the permit modification request in the legal

11 section of the Albuquerque Journal and also sent notice to local neighborhood

12 associations in the area surrounding the filling station. The notice provided that the

13 public had the opportunity to comment on the requested modification until April 24,

14 2013.

15   {3}   Petitioners Toledo and Carrasco became aware of Smith’s permit modification

16 request and submitted written objections to the modification. They also requested that

17 a public hearing be held on the permit modification. In addition to Petitioners Toledo

18 and Carrasco’s comments, the EHD received a few questions from the local

19 neighborhood associations. The EHD answered these questions, and no more action



                                              3
 1 was taken by these groups. Following the end of the comment period, the EHD

 2 determined that there was not significant public interest in Smith’s permit

 3 modification request and denied Petitioners Toledo and Carrasco’s request for a public

 4 hearing. The EHD granted Smith’s permit modification request.

 5   {4}   The EHD notified Petitioners Toledo and Carrasco that because they

 6 participated in the permitting action, they were entitled to petition for a hearing before

 7 the Board to review the EHD’s decision to grant the permit modification. Petitioners

 8 filed a petition—including Petitioner Power, who did not participate in the initial

 9 permitting action, as a petitioner—and alleged that the permit modification was issued

10 “without providing adequate notice and without allowing the public the opportunity

11 to be heard at a public hearing prior to [its] issuance.” Petitioners Toledo and

12 Carrasco further alleged that they were “adversely affected by the permitting action

13 because they are members of the Albuquerque community who have an important

14 interest in ensuring that the modifications to Smith’s permit do not adversely affect

15 the quality of life in Albuquerque.” Petitioner Power alleged that he was prevented

16 from participating in the permitting action due to inadequate notice. Petitioners

17 requested that the Board set aside the permit modification due to the EHD’s failure to

18 provide adequate notice and hold a public hearing.




                                               4
 1   {5}   The Board set a hearing on the merits of Petitioners’ petition. Petitioners filed

 2 notice with the Board limiting the issues to be heard to whether the EHD provided

 3 adequate notice and whether it erred in refusing to hold a public hearing. Prior to the

 4 hearing, Smith’s filed a motion to dismiss, arguing that the Petitioners lacked standing

 5 to challenge EHD’s grant of the permit modification. The Board held a hearing on

 6 Smith’s motion to dismiss nearly two weeks before the hearing scheduled for the

 7 merits of the petition. The Board ultimately determined that Petitioners lacked

 8 standing because Petitioner Power did not participate in the permitting action and

 9 Petitioners Toledo and Carrasco did not show that they were adversely affected by the

10 EHD’s actions. Petitioners now appeal.

11 DISCUSSION

12 Standard of Review

13   {6}   This Court will set aside the Board’s action if the action is found to be “(1)

14 arbitrary, capricious, or an abuse of discretion; (2) not supported by substantial

15 evidence . . .; or (3) otherwise not in accordance with law.” NMSA 1978, § 74-2-9(C)

16 (1992). In this case, Petitioners argue that the Board incorrectly applied the law of

17 standing to dismiss their administrative appeal. We review whether a party has

18 standing de novo. Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149,

19 ¶ 17, 145 N.M. 156, 195 P.3d 1.



                                               5
 1   {7}   “Standing is a judicially created doctrine designed to insure that only those with

 2 a genuine and legitimate interest can participate in a proceeding.” Id. ¶ 18 (internal

 3 quotation marks and citation omitted). Generally, to establish standing, litigants must

 4 “allege three elements: (1) they are directly injured as a result of the action they seek

 5 to challenge; (2) there is a causal relationship between the injury and the challenged

 6 conduct; and (3) the injury is likely to be redressed by a favorable decision.” ACLU

 7 of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 1, 144 N.M. 471, 188 P.3d 1222.

 8   {8}   We accept the material allegations of the petition as true and construe the

 9 petition in favor of the complaining party. Prot. & Advocacy Sys., 2008-NMCA-149,

10 ¶ 17. However, we are not limited to the allegations of the petition and may review

11 any supplementation to the petition by the petitioner with affidavits or particularized

12 allegations of fact in order to determine whether standing exists. Id. If, after a review

13 of all materials of record, standing is not established, the petition must be dismissed.

14 Id.

15 Standing Under the Air Quality Control Act

16   {9}   NMSA 1978, Section 74-2-7(H) (2003), provides that “[a] person who

17 participated in a permitting action before the department or the local agency and who

18 is adversely affected by such permitting action may file a petition for hearing before

19 the environmental improvement board or the local board.” The statute therefore



                                               6
 1 contains two prerequisites for seeking review by the Board. First, the person must

 2 have participated in the permitting action. Id. Second, the person must have been

 3 adversely affected by the action. Id. We review Petitioners’ arguments according to

 4 these two requirements. We begin with Petitioner Power’s argument that inadequate

 5 notice prevented him from participating in the permitting action. We then consider

 6 Petitioners Toledo and Carrasco’s argument that they were adversely affected by the

 7 action.

 8 Petitioner Power

 9   {10}   Petitioner Power argues that he was prevented from participating in the

10 permitting action because he did not receive notice of the permitting action. Petitioner

11 Power does not argue that the EHD’s notice of the permitting action was legally

12 insufficient under the then-applicable regulation pertaining to the provision of public

13 notice. See 20.11.41.14(A)(3) NMAC (10/1/02) (requiring that notice be published

14 “in a local newspaper of general circulation” and include “the name and address of the

15 applicant, location of the source, a brief description of the proposed construction or

16 modification, a summary of the estimated emissions and shall identify the manner in

17 which comments or evidence on the application may be submitted to the

18 Department”). In fact, Petitioners conceded below in their answers to requests for

19 admissions that EHD’s notice complied with the regulation. Instead, Petitioner Power



                                              7
 1 argues that preventing people who did not receive notice from participating in an

 2 appeal forecloses any opportunity to challenge the method in which notice was

 3 provided.

 4   {11}   We are unpersuaded by Petitioner Power’s argument. Participation in the

 5 permitting action is a statutory prerequisite to appealing to the Board. Section 74-2-

 6 7(H). The EHD is not tasked with ensuring that every person who might be affected

 7 by the permitting action actually receive notice. And allowing every person who does

 8 not actually receive notice to appeal to the Board would obviate the statutory

 9 requirement that the petitioner participated in the permitting action. Furthermore, it

10 was undisputed here that EHD complied with its regulation in providing notice to the

11 public. Accordingly, because Petitioner Power did not participate in the permitting

12 action, the Board correctly determined that he did not have standing to challenge the

13 permit modification.

14 Petitioners Toledo and Carrasco

15   {12}   Petitioners Toledo and Carrasco, who actually participated in the permitting

16 action, argue that they were adversely affected by the permitting action due to the

17 EHD’s failure to provide adequate public notice and hold a hearing prior to the

18 issuance of the permit modification. We have already decided that there is no viable

19 dispute regarding public notice. In regard to the EHD’s refusal to hold a public



                                              8
 1 hearing, Petitioners argue that the EHD’s action prevented them from presenting

 2 comments and evidence on the proposed permit modification.

 3   {13}   In order to establish that one is adversely affected, the person must show that

 4 the injury complained of is within the zone of interests sought to be protected by the

 5 statute at issue. N.M. Cattle Growers’ Ass’n v. N.M. Water Quality Control Comm’n,

 6 2013-NMCA-046, ¶ 10, 299 P.3d 436, cert. quashed 2013-NMCERT-010, 313 P.3d

 7 251. Thus, Petitioners’ argument implicates the first element of standing: whether

 8 Petitioners have alleged an injury in fact. For this element, it has always been a

 9 requirement that the litigant allege a direct injury, even if the extent of that injury is

10 slight. ACLU, 2008-NMSC-045, ¶ 11. The injury must be actual or imminent. Id.

11 (“Rather, the litigant need only show that he is imminently threatened with injury, or

12 . . . that he is faced with a real risk of future injury, as a result of the challenged action

13 or statute.” (internal quotation marks and citations omitted)).                 A “general,

14 undifferentiated threat of a hypothetical harm” will not suffice. Id. ¶ 18. A plaintiff

15 has standing to protect himself or herself against “injury as a result of unlawful

16 governmental action.” De Vargas Sav. & Loan Ass’n of Santa Fe v. Campbell, 1975-

17 NMSC-026, ¶ 13, 87 N.M. 469, 535 P.2d 1320.

18   {14}   As stated above, Petitioners argue that their injury was the denial by the EHD

19 of their request for a hearing. Respondents, on the other hand, argue that Petitioners



                                                 9
 1 cannot establish standing because they cannot show that an increase in throughput (the

 2 amount of fuel dispensed) would directly and concretely injure them. Respondents

 3 further argue that Petitioners’ alleged injury is insufficient to establish standing

 4 because the EHD properly exercised its discretion in denying their request for a

 5 hearing. See 20.11.41.14(B) NMAC (10/1/02) (stating that the EHD “shall hold a

 6 public hearing if the director determines that there is significant public interest”).

 7 Stated another way, Respondents argue that because the decision to grant a hearing

 8 is discretionary, the denial of a request for such a hearing cannot, as a matter of law,

 9 establish an invasion of a legally protected interest.

10   {15}   We disagree with Respondents. Given that Petitioners are only requesting the

11 Board to review whether the EHD’s refusal to hold a hearing was proper, the issue of

12 standing in regard to these Petitioners presents a relatively succinct procedural issue:

13 whether Petitioners were adversely affected by the denial of their request for a

14 hearing. The determination of this issue does not require this Court to review whether

15 Petitioners would be adversely affected by any alleged environmental impacts of the

16 permit modification or whether the EHD properly exercised its discretion, the latter

17 being the exact issue Petitioners appealed to the Board.

18   {16}   We therefore conclude that Petitioners had standing to request the Board to

19 review whether the EHD properly refused Petitioners’ request to holding a public



                                              10
 1 hearing. It would be anomalous to conclude that members of the public whose request

 2 for a hearing was denied by the EHD were not “adversely affected” by that decision.

 3 The Petitioners are members of the public that live within the EHD’s jurisdiction.

 4 They were not barred from requesting such a hearing, and the regulations in effect at

 5 the time did not limit those who could request a public hearing to only members of the

 6 public who could establish that they would experience an adverse impact from the

 7 permit modification. 20.11.41.14 NMAC (10/1/02). Instead, such a hearing, if

 8 granted, could conceivably give a member of the public the opportunity to present

 9 comment or evidence on what would otherwise seem to be an attenuated harm from

10 a proposed permit. Thus, because Petitioners are members of the public living within

11 the EHD’s jurisdiction and requested a hearing, they had standing to appeal this

12 narrow procedural issue that arose due to the EHD’s denial of their request for a

13 hearing. Concluding otherwise would give unfettered discretion to the EHD in the

14 determination of when significant public interest exist to hold a public hearing

15 because, as Respondents conceded at oral argument, it would foreclose the

16 opportunity for review of the EHD’s determination by the Board based on factors

17 unrelated to this specific issue.

18   {17}   To clarify, we conclude only that Petitioners Toledo and Carrasco made a

19 sufficient showing that they have standing to allow them to argue their case before the



                                             11
 1 Board on its merits. We have thus only considered whether these Petitioners were

 2 adversely affected by the EHD’s actions, not whether the EHD properly denied their

 3 request for a public hearing. Petitioners Toledo and Carrasco limited the issues before

 4 the Board to public notice and the refusal to hold a public hearing. We conclude

 5 above that there is no viable dispute regarding public notice. Therefore, on remand,

 6 the Board should determine whether Petitioners Toledo and Carrasco’s request for a

 7 public hearing, together with the emailed questions received by the EHD from the

 8 local neighborhood associations, constituted “significant public interest” to necessitate

 9 a public hearing.

10 CONCLUSION

11   {18}   For the foregoing reasons, we remand to the Board to hold a hearing on the

12 merits of whether the EHD improperly refused to hold a public hearing.

13   {19}   IT IS SO ORDERED.


14
15                                          CYNTHIA A. FRY, Judge

16 WE CONCUR:

17
18 JAMES J. WECHSLER, Judge

19
20 TIMOTHY L. GARICA, Judge



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