2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 21 - Zoning Regulations
Section 3-21-9 - Zoning; appeal.
A person aggrieved by a decision of the zoning authority or any officer, department, board or bureau of the zoning authority may appeal the decision pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
History: 1953 Comp., § 14-20-7, enacted by Laws 1965, ch. 300; 1998, ch. 55, § 7; 1999, ch. 265, § 7.
ANNOTATIONSCross references. — For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.
The 1998 amendment, effective September 1, 1998, rewrote this section to the extent that a detailed comparison is impracticable.
The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1".
Appealable decision. — A county land use authority's decision granting an application for a special use permit, subject to certain specified conditions, and the district court's affirmance of the decision were final orders for purposes of appeal. West Gun Club Neighborhood Ass'n v. Extraterritorial Land Use Authority, 2001-NMCA-013, 130 N.M. 195, 22 P.3d 220, cert. denied, 130 N.M. 558, 28 P.3d 1099 (2001).
Zoning commission's denial of rezoning petition constituted a "decision" for purposes of appeal to the city commission; consequently, the district court had jurisdiction to review by certiorari the denial of rezoning petition by city commission sitting for the purpose of hearing and deciding appeals. Corondoni v. City of Albuquerque, 1963-NMSC-146, 72 N.M. 422, 384 P.2d 691.
Challenge of decision of neighboring city. — A town had standing as a "person aggrieved" to challenge the zoning decision of a neighboring city. Town of Mesilla v. City of Las Cruces, 1995-NMCA-058, 120 N.M. 69, 898 P.2d 121.
Citizens group not organized when decision rendered not "person aggrieved". — A citizens group which was not duly organized at the time a decision granting a special use permit was rendered was not a "person aggrieved" by the decision. Citizens for Los Alamos, Inc. v. Incorporated Cnty. of Los Alamos, 1986-NMSC-063, 104 N.M. 571, 725 P.2d 250.
Applicant for variance indispensable party. — Under this section and Rule 1-065 D(2) NMRA, where the party bringing the appeal seeks to overturn a decision authorizing a zoning variance, the applicant for the variance is an indispensable or necessary party. State ex rel. Sweet v. Village of Jemez Springs, Inc., 1992-NMCA-085, 114 N.M. 297, 837 P.2d 1380.
Indispensable party added after expiration of filing deadline. — Where an indispensable or necessary party is subject to service of process and is otherwise capable of being joined as a party to a proceeding under this section challenging the issuance of a zoning variance, the district court has jurisdiction to add such party to the proceeding after the time to file the petition has expired. State ex rel. Sweet v. Village of Jemez Springs, Inc., 1992-NMCA-085, 114 N.M. 297, 837 P.2d 1380.
"Present" defined. — The term "present," as used in Subsection A only requires filing with the clerk of the court. Butcher v. City of Albuquerque, 1980-NMSC-127, 95 N.M. 242, 620 P.2d 1267 (decided under prior law).
Petition need not be personally presented to district judge within the 30-day period to comply with this section. Butcher v. City of Albuquerque, 1980-NMSC-127, 95 N.M. 242, 620 P.2d 1267.
Once petition filed, district court must either dismiss or issue certiorari. — Once a petition is filed with the district court, it becomes incumbent upon that court to either dismiss the matter or to issue a writ of certiorari. Mitchell v. City of Santa Fe, 1983-NMSC-031, 99 N.M. 505, 660 P.2d 595.
Judicial review may be obtained by both petitions for review and certiorari. — This section does not restrict an appellant to seeking a writ of certiorari as the only appropriate procedure for obtaining judicial review, but gives the district court jurisdiction to hear both petitions for review and writs of certiorari. Mitchell v. City of Santa Fe, 1983-NMSC-031, 99 N.M. 505, 660 P.2d 595 (decided under prior law).
Availability of injunctive relief. — Injunctive relief is not available to appeal a zoning decision when there is an adequate remedy at law, such as the method provided for appealing a zoning decision under Subsection A of this section and 3-21-8B NMSA 1978. State ex rel. Baxter v. Egolf, 1988-NMCA-047, 107 N.M. 315, 757 P.2d 371 (decided under prior law).
Standard for judicial review. — After the enactment of 39-3-1.1 NMSA 1978, the standard of review for the court of appeals upon the review of a district court decision of an appeal from an administrative agency is based upon the criteria for a writ of certiorari as outlined in Rule 12-505 NMRA, and no longer may the court of appeals review the district court decision under the administrative standard. C.F.T. Dev., LLC v. Board of Cnty. Comm'rs, 2001-NMCA-069, 130 N.M. 775, 32 P.3d 784.
The questions to be answered by a district court in reviewing the decisions of a zoning authority are questions of law, restricted to whether the administrative body acted fraudulently, arbitrarily or capriciously, whether the order was supported by substantial evidence and, generally, whether the action of the administrative body was within the scope of its authority; the district court may not substitute its judgment for that of the administrative body. Singleterry v. City of Albuquerque, 1981-NMSC-037, 96 N.M. 468, 632 P.2d 345.
Judicial review of a zoning authority's decision is limited to questions of law. By statute, the district court must determine initially whether the decision is illegal, in whole or in part, and an appellate court conducts the same review as the district court. That determination depends upon whether the zoning authority acts fraudulently, arbitrarily, or capriciously; whether the decision is supported by substantial evidence; and whether the zoning authority acted within the scope of its authority. Downtown Neighborhoods Ass'n v. City of Albuquerque, 1989-NMCA-091, 109 N.M. 186, 783 P.2d 962.
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. Because the zoning actions are quasi-judicial, the administrative standard of review is applied. The decision is affirmed if it is supported by the applicable law and by substantial evidence in the record as a whole. West Old Town Neighborhood Ass'n v. City of Albuquerque, 1996-NMCA-107, 122 N.M. 495, 927 P.2d 529, overruled on other grounds by C.F.T. Dev., LLC v. Board of Cnty. Comm'rs, 2001-NMCA-069, 130 N.M.775, 32 P.3d 784 (decided under prior law).
Constitutionality of section. — To the extent that this section purports to allow the district court to zone land, it is void as an unconstitutional delegation of power to the judiciary, contravening N.M. Const., art. III, § 1. Coe v. City of Albuquerque, 1966-NMSC-196, 76 N.M. 771, 418 P.2d 545 (decided under prior law).
Court order for rezoning unconstitutional. — The district court is not permitted to overturn a rejection of a petition for a zoning change and then order the city to rezone; such an order violates constitutional separation of powers, since zoning is a legislative activity. Hart v. City of Albuquerque, 1999-NMCA-043, 126 N.M. 366, 975 P.2d 366.
Collateral attack held permissible. — Since this section does not present the exclusive method for attacking invalid ordinances, the supreme court held that a collateral attack upon an ordinance which was void in the sense that the legislative body had no constitutional or statutory power to pass it or because the ordinance was never legally enacted was permissible. Dale J. Bellamah Corp. v. City of Santa Fe, 1975-NMSC-045, 88 N.M. 288, 540 P.2d 218; Mechem v. City of Santa Fe, 1981-NMSC-104, 96 N.M. 668, 634 P.2d 690.
Presumption of correctness of original zoning. — Absent a showing that the original zoning was mistakenly listed as a different zone than that intended due to clerical error, oversight or misapprehension of the facts, the original zoning is deemed to be correct. Davis v. City of Albuquerque, 1982-NMSC-070, 98 N.M. 319, 648 P.2d 777.
Zoning authority's decision upheld. — Zoning authority's decision was within the scope of its authority, supported by substantial evidence, and reasonable. Hyde v. Taos Municipal-County Zoning Auth., 1991-NMCA-114, 113 N.M. 29, 822 P.2d 126.
Thirty-days' requirement of Subsection A will be strictly interpreted. Bolin v. City of Portales, 1976-NMSC-020, 89 N.M. 192, 548 P.2d 1210 (decided under prior law).
Tolling of time to appeal. — Where the developer sought review in federal court of the municipality's denial of the developer's preliminary plat within twenty-eight days after the municipality issued its final decision; while the developer's federal action was pending, the municipality filed an action in state district court to quiet title to the land; and after the federal court dismissed the federal action, the developer timely filed a counterclaim against the municipality in the state district court action to review the municipality's action denying the preliminary plat, the federal action tolled the limitations period to appeal and the developer's appeal for review in state district court was timely. City of Rio Rancho v. Amrep Sw., Inc., 2011-NMSC-037, 260 P.3d 414, aff'g in part and rev'g in part, 2010-NMCA-075, 148 N.M. 542, 238 P.3d 911.
Thirty-day time limit to appeal not extended by civil rules. — Rule 1-015C, governing the relation back of amended pleadings, cannot be construed to extend the 30-day time limit of this section for appeal from a decision of the zoning authority. Citizens for Los Alamos, Inc. v. Incorporated Cnty. of Los Alamos, 1986-NMSC-063, 104 N.M. 571, 725 P.2d 250 (decided under prior law).
Triggering date for 30-day period. — The date from which a city council's decision triggers the 30-day period under this section is the date of the council's final decision, the date the zoning ordinance or plan is passed. Ramirez v. City of Santa Fe, 1993-NMCA-049, 115 N.M. 417, 852 P.2d 690 (decided under prior law).
Petition filed too late. — An ordinance of the board of county commissioners changing the zoning of a certain tract from A-1 to M-1 became final on the date it was passed, adopted, approved and signed by the board, as reflected in the unchallenged return to petitioner's petition for a writ of certiorari, and not on the date some six weeks later when the board approved the minutes of the former meeting; the minutes were only a record of the actions taken. Therefore, petitioners who filed their petition for a writ of certiorari under this section on June 4 filed too late where according to the copy of the ordinance filed with the return to the writ the board of county commissioner's zoning decision was made on April 16, despite the fact that the board did not approve until May 21 the minutes of the meeting of April 16. Serna v. Board of Cnty. Comm'rs, 1975-NMSC-049, 88 N.M. 282, 540 P.2d 212 (decided under prior law).
Review is limited to the record presented. Peace Found., Inc. v. City of Albuquerque, 1966-NMSC-195, 76 N.M. 757, 418 P.2d 535.
Since portions of the record were not available to be certified to the court, the court accordingly took proof in connection with such omissions as per the procedure for review as set forth in this section. Krutzner Corp. v. City of Las Vegas, 1970-NMSC-052, 81 N.M. 359, 467 P.2d 25 (decided under prior law).
Rules for construing zoning ordinances. — In construing municipal or county zoning ordinances, the same rules of construction are used as when construing statutes of the legislature. One of these rules of construction is to interpret the statute or ordinance to mean what the legislature intended it to mean, and to accomplish the ends sought to be accomplished by it. Another rule of construction is that the entire act or ordinance is to be read as a whole and each part construed in connection with every other part so as to produce a harmonious whole. Still another rule is that the court will not read into a statute or ordinance language which is not there, particularly if it makes sense as written. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.
Showing required to rezone to more restrictive zoning. — In comprehensive rezonings, where the zoning of extensive geographic areas is changed by zoning authorities after full public consideration, anyone seeking to rezone property to a more restrictive zoning must show that either there was a mistake in the original zoning or that a substantial change has occurred in the character of the neighborhood since the original zoning to such an extent that the reclassification or change ought to be made. Davis v. City of Albuquerque, 1982-NMSC-070, 98 N.M. 319, 648 P.2d 777.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Standing of lot owner to challenge validity or regularity of zoning changes dealing with neighboring property, 37 A.L.R.2d 1143.
Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.
Motive of members of municipal authority approving or adopting zoning regulation, inquiry, upon review, into, 71 A.L.R.2d 568.
New application: zoning board's grant of new application for zoning change, variance or special exception after denial of previous application covering same property or part thereof, 52 A.L.R.3d 494.
Standing of civic or property owners' association to challenge zoning board decision (as aggrieved party), 8 A.L.R.4th 1087.
Standing of zoning board of appeals or similar board to appeal reversal of its decision, 13 A.L.R.4th 1130.
