2020 New Mexico Statutes
Chapter 3 - Municipalities
Article 21 - Zoning Regulations
Section 3-21-1 - Zoning; authority of county or municipality.
A. For the purpose of promoting health, safety, morals or the general welfare, a county or municipality is a zoning authority and may regulate and restrict within its jurisdiction the:
(1) height, number of stories and size of buildings and other structures;
(2) percentage of a lot that may be occupied;
(3) size of yards, courts and other open space;
(4) density of population; and
(5) location and use of buildings, structures and land for trade, industry, residence or other purposes.
B. The county or municipal zoning authority may:
(1) divide the territory under its jurisdiction into districts of such number, shape, area and form as is necessary to carry out the purposes of Sections 3-21-1 through 3-21-14 NMSA 1978; and
(2) regulate or restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land in each district. All such regulations shall be uniform for each class or kind of buildings within each district, but regulation in one district may differ from regulation in another district.
C. All state-licensed or state-operated community residences for persons with a mental or developmental disability and serving ten or fewer persons may be considered a residential use of property for purposes of zoning and may be permitted use in all districts in which residential uses are permitted generally, including particularly residential zones for single-family dwellings.
D. A board of county commissioners of the county in which the greatest amount of the territory of the petitioning village, community, neighborhood or district lies may declare by ordinance that a village, community, neighborhood or district is a "traditional historic community" upon petition by twenty-five percent or more of the qualified electors of the territory within the village, community, neighborhood or district requesting the designation. The number of qualified electors shall be based on county records as of the date of the last general election.
E. Any village, community, neighborhood or district that is declared a traditional historic community shall be excluded from the extraterritorial zone and extraterritorial zoning authority of any municipality whose extraterritorial zoning authority extends to include all or a portion of the traditional historic community and shall be subject to the zoning jurisdiction of the county in which the greatest portion of the traditional historic community lies.
F. Zoning authorities, including zoning authorities of home rule municipalities, shall accommodate multigenerational housing by creating a mechanism to allow up to two kitchens within a single-family zoning district, such as conditional use permits.
G. For the purpose of this section, "multigenerational" means any number of persons related by blood, common ancestry, marriage, guardianship or adoption.
History: 1953 Comp., § 14-20-1, enacted by Laws 1965, ch. 300; 1977, ch. 279, § 20; 1995, ch. 170, § 4; 1995, ch. 211, § 3; 2007, ch. 46, § 3; 2007, ch. 270, § 1; 2019, ch. 212, § 183.
ANNOTATIONSCross references. — For building construction and restrictions, see 3-18-6 NMSA 1978.
For Special Zoning District Act, see 3-21-15 NMSA 1978 et seq.
For Historic District Act, see 3-22-1 NMSA 1978 et seq.
For Municipal Airport Zoning Law, see 3-39-16 NMSA 1978 et seq.
For powers and duties of joint airport zoning board, see 64-2-1, 64-2-2 NMSA 1978.
For Scenic Highway Zoning Act, see 67-13-1 NMSA 1978 et seq.
The 2019 amendment, effective April 3, 2019, in Subsection D, deleted "registered" preceding each occurrence of "qualified electors".
2007 Multiple Amendments. — Laws 2007, ch. 270, § 1, effective June 15, 2007, added Subsections F and G, which provided for multigenerational housing.
Laws 2007, ch. 46, § 3, effective June 15, 2007, in Subsection C, deleted "the mentally ill or developmentally disabled" and added "persons with a mental or developmental disability and"; and in Subsection D, after "which the greatest", deleted "portion" and added "amount".
The 1995 amendment, effective April 6, 1995, substituted "Sections 3-21-1 through 3-21-14 NMSA 1978" for "Sections 14-20-1 through 14-20-12 NMSA 1953" in Paragraph (b)(1), and added Subsections D and E.
I. GENERAL CONSIDERATION.
Occasional showing of adult film did not violate zoning ordinance applicable to adult amusement establishments. — Where a municipal zoning ordinance defined an adult amusement establishment as a theater that provided motion pictures characterized by an emphasis on specified anatomical areas or sexual activities; the ordinance did not specify how many pornographic films a theater must show to qualify as an adult amusement establishment; defendant was an art-house theater that usually featured non-pornographic independent films and only occasionally showed adult films; on one weekend defendant hosted an erotic film festival called "Pornotopia" that featured a film characterized by an emphasis on specified anatomical areas or sexual activities; and defendant was not an adult theater either in function or appearance, defendant was not an adult amusement establishment as defined in the zoning ordinance. State v. Pangaea Cinema. L.L.C., 2013-NMSC-044, rev'g 2012-NMCA-075, 284 P.3d 1090.
A movie theater was an adult amusement establishment for showing one adult movie. — Where defendant, who operated an art-house movie theater, was prosecuted under the municipality's zoning ordinance covering adult amusement establishments for showing one pornographic film during a weekend festival of X-rated fare; and the ordinance defined an adult amusement establishment as an establishment, such as a theater, that provides entertainment featuring films of specified anatomical areas or the conduct of specified sexual activities, defendant was an adult amusement establishment as defined in the ordinance and was subject to the terms of the ordinance when defendant showed only one adult movie. City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, 284 P.3d 1090, cert. granted, 2012-NMCERT-007.
Zoning ordinance regulating adult amusement establishments was not unconstitutionally vague. — Where defendant, who operated an art-house movie theater, was prosecuted under the municipality's zoning ordinance covering adult amusement establishments for showing one pornographic film during a weekend festival of X-rated fare; the ordinance defined an adult amusement establishment as an establishment, such as a theater, that provides entertainment featuring films of specified anatomical areas or the conduct of specified sexual activities; a reasonable theater owner would have been on notice that the film screened by defendant was an adult film as defined by the ordinance and would have been on notice that its conduct was prohibited the ordinance; and there was no evidence that the municipality selectively enforced by the ordinance or singled out defendant or that the municipality improperly trained its officers in identifying adult films and citing violators; and the ordinance was not susceptible to arbitrary or discriminatory enforcement because it did not have a threshold standard for movie theaters exhibiting adult movies, the ordinance was not unconstitutionally vague as applied. City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, 284 P.3d 1090, cert. granted, 2012-NMCERT-007.
Zoning ordinance regulating adult amusement establishments did not abridge freedom of speech. — Where defendant, who operated an art-house movie theater, was prosecuted under the municipality's zoning ordinance covering adult amusement establishments for showing one pornographic film during a weekend festival of X-rated fare; the ordinance allowed adult films to be shown only in specified zones and prohibited the public screening of such films in other areas, including the area where the theater was located; about five percent of the municipality's area was zoned to allow the exhibition of adult films; the municipality enacted the ordinance not to regulate the content of films, but to combat the negative secondary effects produced by showing adult films; and defendant could show adult movies in areas of the municipality that were zoned for the exhibition of adult films, the ordinance was a constitutionally valid regulation of the time, place, and manner of the exhibition of adult films as applied to defendant and did not abridge defendant's freedom of speech. City of Albuquerque v. Pangaea Cinema, LLC, 2012-NMCA-075, 284 P.3d 1090, cert. granted, 2012-NMCERT-007.
"Mining" defined. — Where a county zoning ordinance prohibited mining of any type, but did not define "mining", and where a landowner mined sand and gravel from federal BLM land, the stockpiling of the mined sand and gravel on the landowner's adjacent land did not constitute "mining" as it is commonly defined. San Pedro Neighborhood Ass'n. v. Board of Cnty. Comm'rs of Santa Fe Cnty., 2009-NMCA-045, 146 N.M. 106, 206 P.3d 1011.
"Commercial use" defined. — Where a county zoning ordinance prohibited commercial uses, but did not define "commercial use", and where a landowner mined sand and gravel from federal BLM land, the stockpiling of the mined sand and gravel on the landowner's adjacent land pending removal for sale constituted a "commercial" use under its ordinary meaning. San Pedro Neighborhood Ass'n. v. Board of Cnty. Comm'rs of Santa Fe Cnty., 2009-NMCA-045, 146 N.M. 106, 206 P.3d 1011.
Commercial impracticability. — Where a county zoning ordinance prohibited the stockpiling of the mined sand and gravel on a landowner's land which the landowner mined from adjacent BLM land under a lease from the BLM and where the evidence showed that the landowner experienced difficulty in limiting the mining and stockpiling of sand and gravel to the BLM land, the evidence was not sufficient to show that the application of the zoning ordinance to the landowner's land conflicted with federal law by rendering the mining operation on federal land commercially impracticable. San Pedro Neighborhood Ass'n. v. Board of Cnty. Comm'rs of Santa Fe Cnty., 2009-NMCA-045, 146 N.M. 106, 206 P.3d 1011.
Preexisting lawful uses. — The grandfather clause of a zoning ordinance which provided that wireless telecommunications facilities that existed on or before the effective date of the new ordinance "shall be allowed to continue as they presently exist, as legally permitted non-conforming uses" applied only to existing communications towers that were lawful under preexisting ordinances and did not immunize unlawful facilities. City of Rio Rancho v. Logan, 2008-NMCA-011, 143 N.M. 281, 175 P.3d 949.
Legislative action. — If a zoning decision has general application and was drawn to apply in the same way concurrently and in the future to all similarly situated properties, it is legislative. The fact that the vacant property remaining to be developed in a district belongs to a limited number of parties does not mean that the zoning action is necessarily quasi-judicial in nature. The fact that a particular party's proposed development or a particular parcel is in the mind of the zoning authority when it takes action does not change the nature of the zoning authority's decision from legislative to quasi-judicial. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
The uniformity requirement does not prohibit different classifications within a district so long as they are reasonable and based on the public policy to be served. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
When a zoning resolution is in substance an ordinance or a permanent regulation, the name given to the resolution is immaterial, and if it is passed with all the formality of an ordinance, the resolution thereby becomes a legislative act. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
Comprehensive scheme to regulate land. — The Zoning Act affords counties a comprehensive scheme to regulate land use as a way to protect public health, safety and welfare. Cerrillos Gravel Products, Inc. v. Santa Fe Bd. of Cnty. Comm'rs, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.
Definition of zoning. — Zoning is defined as governmental regulation of the uses of land and buildings according to districts or zones. When used to promote the public interest, it is justified and has been upheld as a legitimate exercise of the police power. New Mexico has specifically approved its use to protect and promote the safety, health, morals and general welfare. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.
County's authority to promulgate zoning ordinances must come from enabling legislation from the state legislature, and therefore, any exercise of power under a zoning ordinance must be authorized by statute. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.
As municipality has no zoning authority beyond that provided by this article. Mechem v. City of Santa Fe, 1981-NMSC-104, 96 N.M. 668, 634 P.2d 690; City of Santa Fe v. Armijo, 1981-NMSC-102, 96 N.M. 663, 634 P.2d 685.
Jurisdiction to determine interest in property. — Extraterritorial zoning association did not have the authority to question whether a zoning petitioner's interest in the subject property was sufficient to support its proposed activities. Western PCS II Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230 (D.N.M. 1997).
Zoning ordinance is attached with a presumption of validity. — The burden is on a sign owner to overcome this presumption by proving that an ordinance is not reasonably related to its stated purpose. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Aesthetics justifies exercise of police power. — Aesthetic considerations alone justify the exercise of the police power. Ordinances must still, however, be construed for their reasonableness in relation to aesthetic purposes. Moreover, if the ordinance in question impinges on a fundamental right, then the ordinance must "directly advance" the interests of aesthetics. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Zoning restriction must relate to use of property. — Zoning concerns the regulation of the uses of land and buildings; a restriction upon ownership which amounts to a mere license or privilege to an individual, and which is not related to the use of property is ultra vires and invalid. Mechem v. City of Santa Fe, 1981-NMSC-104, 96 N.M. 668, 634 P.2d 690.
Counties have statutory authority to enact general police power and zoning ordinances; however, enactment procedures and regulatory powers differ between the two. Board of Cnty. Comm'rs v. City of Las Vegas, 1980-NMSC-137, 95 N.M. 387, 622 P.2d 695.
"Amortization" is constitutional means to terminate nonconforming use. — If an amortization period is reasonable, it is a constitutional means for municipalities to terminate nonconforming uses and, as such, is a constitutional alternative to just compensation. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
"Amortization" does not connote a requirement of compensation, but merely suggests that a sign owner or user is put on notice that he has a certain period of time in which to make necessary adjustments to bring his nonconforming structure into conformity with a sign ordinance. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Effect of private restrictions. — Zoning ordinances if less stringent do not diminish the legal effect of more restrictive private building restrictions. Ridge Park Home Owners v. Pena, 1975-NMSC-063, 88 N.M. 563, 544 P.2d 278.
Purpose of a municipal historical zoning ordinance was within the term "general welfare," as used in municipal zoning enabling legislation. City of Santa Fe v. Gamble-Skogmo, Inc., 1964-NMSC-016, 73 N.M. 410, 389 P.2d 13.
II. SPOT ZONING.
Spot zoning. — The term "spot zoning" refers to the rezoning of a small parcel of land to permit a use that fails to comply with a comprehensive plan or is inconsistent with the surrounding area, grants a discriminatory benefit to the parcel owner, and/or harms neighboring properties or the community welfare. Spot zoning is determined on an ad hoc basis, depending on the facts and circumstances of each case. Watson v. Town Council of Town of Bernalillo, 1991-NMCA-009, 111 N.M. 374, 805 P.2d 641.
Scope of inquiry. — When examining a charge of spot zoning, courts look not only at the zoning of the immediately adjoining properties, but also to the surrounding area. Bennett v. City Council for City of Las Cruces, 1999-NMCA-015, 126 N.M. 619, 973 P.2d 871 (Ct. App. 1998).
No spot zoning. — Where the zoning of a 4.2 acre tract was changed from residential to commercial, while the immediately adjacent properties were zoned single-family and high-density residential; the surrounding area consisted of mixed commercial and residential uses; the rezoning was consistent with the municipality comprehensive plan; and the commercial use of the property would create jobs for the benefit of the community; the rezoning of the tract did not constitute impermissible spot zoning. Bennett v. City Council for City of Las Cruces, 1999-NMCA-015, 126 N.M. 619, 973 P.2d 871.
Quasi-judicial action. — When a zoning action is specifically designed to affect a relatively small number of properties and does not apply to similarly situated properties in the surrounding area or city-wide, that action is quasi-judicial, not legislative. Albuquerque Commons v. Albuquerque City Council, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411, rev'g, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67.
The criteria for approval of zone map changes does not apply to special use permits. — The criteria established in Albuquerque Commons Partnership v. City Council of Albuquerque, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411, for the approval of a zoning map change, which requires proof that there is a public need for a change of the kind in question and that need will be best served by changing the classification of the particular piece of property in question as compared with other available property, does not apply to the issuance of temporary special-use permits. Ricci v. Bernalillo Cnty. Bd. of Cnty. Commissioners, 2011-NMCA-114, 150 N.M. 777, 266 P.3d 646.
Where the developer of a subdivision within a residential area discovered a deposit of sand and gravel in the process of grading the property; the developer applied for a special use permit to remove the sand and gravel; the county commission applied the "more advantageous to the community" standard; and the county commission granted the special-use permit for two years, the county commission's refusal to apply the criteria established in Albuquerque Commons Partnership v. City Council of Albuquerque, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411, for a proposed zone map change, which requires proof that there is a public need for a change of the kind in question and that need will be best served by changing the classification of the particular piece of property in question as compared with other available property, was in accordance with law. Ricci v. Bernalillo Cnty. Bd. of Cnty. Commissioners, 2011-NMCA-114, 150 N.M. 777, 266 P.3d 646.
III. CHANGE OF ZONING.
No discretion to change zoning without considering substantive criteria for zoning changes. — Where state case law and a municipal resolution required the municipality to establish the substantive criteria of change, mistake or a more advantageous use category before changing the zoning classification of property, the municipality had no discretion to proceed to downzone the landowner's property without providing evidence to justify the change in accordance with the substantive criteria. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Zoning text amendments and zoning map amendments. — New Mexico law recognizes that a zoning text amendment is different from a zone reclassification by map amendment. Zoning text amendments specify the allowed or permitted uses within a particular existing zoning district classification. Zoning map amendments involve the zoning district reclassification of a particular tract of land by alteration of the official zoning map. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
The change or mistake rule does not apply to rezoning by text amendment. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
IV. DOWN ZONING.
Downzoning defined. — The characteristic common to all downzoning actions is that they focus on specific properties or small groups of properties within an otherwise similarly situated class, restricting or allowing uses in ways that do not apply to the surrounding area or similar areas within a municipality. Albuquerque Commons v. Albuquerque City Council, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411, rev'g, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67.
Common characteristic of downzoning. — Where the city council adopted a text amendment to a sector plan as a legislative action to create a new sub-zone within the sector plan area, which consisted of three parcels comprising six percent of the sector plan area and to impose additional, significantly more restrictive regulations that were applicable only to the new sub-zone, the amendment was a downzoing of property in the new sub-zone and a quasi-judicial action that denied the property owners in the sub-zone due process of law. Albuquerque Commons v. Albuquerque City Council, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411, rev'g, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67.
No down-zoning. — Where zoning text amendments were consistent with city's master plan, quantified and made more specific the city's policy vision to assure development of an urban center as stated in its comprehensive plan and in the prior zoning provisions and delineated how that vision would specifically come to pass in future development, and the changes applied to all property owners within the district, the zoning text amendments did not constitute a down-zoning and were legislative in nature. Albuquerque Commons P'ship v. Albuquerque City Council, 2006-NMCA-143, 140 N.M. 751, 149 P.3d 67, rev'd, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 411.
V. STATE AND FEDERAL IMMUNITY.
Immunity of state. — The state is immune from any municipal zoning regulations. City of Albuquerque v. Jackson Bros. Inc., 1991-NMCA-140, 113 N.M. 149, 823 P.2d 949.
Test to determine whether one political subdivision of the state is immune from the zoning laws of a co-equal political subdivision of the state. — In zoning and land use disputes between co-equal political subdivisions of the state, the statutory guidance test applies to determine whether a land use proposed by one political subdivision of the state may be prohibited by the zoning regulation of another. Under the statutory guidance test, courts review the statutory powers assigned to each entity to ascertain whether the legislature intended that one entity's local zoning ordinances apply to the other entity's activities. Village of Logan v. Eastern N.M. Water Util. Auth., 2015-NMCA-103.
In zoning and land use dispute between a municipality and a water utility authority, both of which are political subdivisions of the state established by legislative processes, the legislative purpose behind the creation of the water utility authority would be frustrated by requiring it to adhere to municipal zoning ordinances, and therefore the statutory guidance test applies to immunize the water utility authority from the municipality's zoning ordinances. Village of Logan v. Eastern N.M. Water Util. Auth., 2015-NMCA-103.
State governmental body is not subject to local zoning regulations or restrictions. City of Santa Fe v. Armijo, 1981-NMSC-102, 96 N.M. 663, 634 P.2d 685.
County may not regulate a private entity on state land operating with the state's approval. County of Santa Fe v. Milagro Wireless, LLC, 2001-NMCA-070, 130 N.M. 771, 32 P.3d 214.
VI. DUE PROCESS AND TAKING ISSUES.
State-created substantive property right. — Where a municipality downzoned the landowner's property by map amendment; state case law required the municipality to establish a mistake in the original zoning or subsequent changed conditions in the neighborhood before the zoning could be legally changed; and a municipal resolution required the municipality to demonstrate that a mistake had occurred in the original zoning, that changed neighborhood or community conditions justify the change, or that a different use category is more advantageous to the community before a zoning classification could be changed by map amendment, the property owner had a state-created property right to continued zoning classification of the landowner's property unless the municipality justified the zoning change in accordance with the criteria of state case law and the municipal resolution. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Property deprivation or due process violation. — Where state case law and a municipal resolution required the municipality to establish the substantive criteria of change, mistake or a more advantageous use category before changing the zoning classification of property, the failure of the municipality to actually establish one of the substantive criteria does not lead to a property deprivation or due process violation, the deprivation or violation only arises in the event the landowner is denied notice or a meaningful opportunity to be heard before the landowner's property is downzoned. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Due process. — The failure of a municipality to hold a particular type of hearing, such as a legislative or a quasi-judicial hearing, when it contemplates downzoning a landowner's property is not by itself a failure of due process. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Where the city council determined that the adoption of a sector plan, which downzoned the landowner's property, was a legislative matter to be decided at a legislative hearing; the landowner participated in seven hearings before the city council; the municipality did not limit ex parte contact on the part of the council members; one city councilor, who had been contacted by a non-counselor outside of the hearing and who had been encouraged not to propose amendments to the sector plan that would allow the landowner to retain the existing zoning of the landowner's property, withdrew all of the counselor's proposed amendments, the landowner was not provided with an impartial tribunal and the process violated the landowner's constitutionally protected property right and procedural due process. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Due process and takings claims are not coextensive. — Where a municipality downzoned the landowner's property; the landowner sued the municipality to recover damages for violation of the landowner's due process rights and for the taking of the landowner's property by condemnation, the landowner was under no obligation to seek takings damages before recovering for the due process violation, because the claims are not coextensive. The due process claim is based on the right to continuation of a certain zoning classification until the municipality establishes specific circumstances to justify a change of zoning and the loss resulting from the due process violation is a loss of opportunity to meaningfully participate in a hearing related to the change of zoning. The takings claim is based on the taking of property without a legitimate public interest and the loss resulting from the taking is loss of the economically viable use of the property. Albuquerque Commons P'ship v. Albuquerque City Council, 2009-NMCA-065, 146 N.M. 568, 212 P.3d 1122, cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360 and cert. denied, 1305 S.Ct. 1501, 176 L.Ed. 2d 110 (2010).
Due process. — The extraterritorial zoning administration lacks the authority to adjudicate questions of property rights, rather than mere use, and thus its decision in this case violates due process requirements. Western PCS II Corp. v. Extraterritorial Zoning Auth., 957 F. Supp. 1230 (D.N.M. 1997).
Zoning is not compensable taking. — As a valid exercise of the police power, zoning is not a compensable taking, even when it results in substantial reduction in the value of property. Only if the governmental regulation deprives the owner of all beneficial use of his property will the action be unconstitutional. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.
In regard to inverse condemnation, an administrative body has no authority to adjudicate all of the essential facts of the claim or to award damages. Takhar v. Town of Taos, 2004-NMCA-072, 135 N.M. 741, 93 P.3d 762, cert. denied, 2004-NMCERT-006, 135 N.M. 789, 93 P.3d 1292.
VII. SIGNS.
Municipal regulation of outdoor advertising for aesthetic and safety purposes constitutes a valid exercise of the police power, as that power is derived from authority granted by the state. Battaglini v. Town of Red River, 1983-NMSC-067, 100 N.M. 287, 669 P.2d 1082.
Criteria to determine whether sign ordinance violates free speech. — Where a sign ordinance does not prohibit speech altogether, the precise issue is whether the sign ordinance is a legitimate time, place and manner restriction on speech. The criteria to be analyzed are threefold: (1) does the restriction serve a significant government interest? (2) is the restriction justifiable without reference to the content of the regulated speech? and, (3) does the restriction leave open ample alternative channels of communication? Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Sign ordinance not violative of free exercise of religious beliefs. — Where a sign ordinance does not limit what a religious organization may maintain on its signs, the ordinance does not abridge the free exercise of religious beliefs in violation of N.M. Const., art. II, § 11. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Sign ordinance held reasonably related to proper governmental goals. — A sign ordinance regulating the size, height and number of signs is reasonably related to the proper governmental goals of aesthetics and traffic safety. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Where the only restriction on political signs is that campaign signs be a certain size, be erected earlier than 60 days prior to a primary or general election and that the campaign signs be removed within 10 days after the election to which the sign pertains, clearly such a limited restriction on these types of political signs furthers a significant government interest in aesthetics. Temple Baptist Church, Inc. v. City of Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565.
Authority of county to zone school property. — Lands owned by a public school district and used for school purposes, directly and indirectly, and land used for commercial purposes are subject to county zoning and development ordinances. 2005 Op. Att'y Gen. No. 05-03.
Land use ordinances validity depend on ownership of property. — Although counties are designated zoning authorities for the purposes of promoting health, safety, morals and the general welfare, the validity of county land use ordinances attempting to restrict traditional federal and state regulatory authority varies. To the extent the ordinances affect federal lands, they are preempted by the Supremacy Clause of the United States Constitution; to the extent the ordinances affect state lands, they are nullified by the state's immunity from local zoning ordinances; and finally, to the extent the ordinances affect private lands, they are preempted by federal law, state law, or both. 1994 Op. Att'y Gen. No. 94-01.
Annexation of zoning district by municipality. — When all or a portion of a special zoning district is annexed by an incorporated municipality, the special zoning district loses all of its zoning jurisdiction over the annexed territory to the municipality. 1983 Op. Att'y Gen. No. 83-06.
Law reviews. — For comment, "Land Use Planning - New Mexico's Green Belt Law," see 8 Nat. Resources J. 190 (1968).
For note, "County Regulation of Land Use and Development," see 9 Nat. Resources J. 266 (1969).
For article, "Existing Legislation and Proposed Model Flood Plain Ordinance for New Mexico Municipalities," see 9 Nat. Resources J. 629 (1969).
For note, "Subdivision Planning Through Water Regulation in New Mexico," see 12 Nat. Resources J. 286 (1972).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 83 Am. Jur. 2d Zoning and Planning §§ 4, 10 to 16.
Light and air space, validity of building regulation requiring areas or open spaces for, 9 A.L.R. 1040, 59 A.L.R. 518.
Relative area of parcel that may be covered by building, validity of regulations as to, 27 A.L.R. 443.
Delegation by municipality of its powers as to building regulations, 43 A.L.R. 834, 46 A.L.R. 88.
Restrictions on use of real property, or remedies in respect of them as affected by zoning law, 48 A.L.R. 1437, 54 A.L.R. 843.
Creation by statute or ordinance of restricted residence districts within municipality from which business buildings or multiple residences are excluded, 54 A.L.R. 1030, 86 A.L.R. 659, 117 A.L.R. 1117.
Power to forbid or restrict repair of wooden building within fire limits, 56 A.L.R. 878.
Auxiliary buildings, constitutionality of statutes or validity of municipal regulations as to location within lot lines, 57 A.L.R. 958.
Flats or apartments as within term "dwelling" or "dwelling-house" in zoning statute or ordinance, 61 A.L.R. 565.
Validity and construction of zoning or building ordinance prohibiting or regulating subsequent alteration, addition, extension or substitution of existing buildings, 64 A.L.R. 920.
Gasoline filling stations, zoning regulations as to, 96 A.L.R. 1337, 75 A.L.R.2d 168.
Estoppel, right of municipality or other public authority to enforce zoning or fire limit regulations as affected by its previous conduct in permitting or encouraging violation thereof, 119 A.L.R. 1509.
Enterprise or activity, what is permissible in business zone, 128 A.L.R. 1214.
Indefiniteness, validity of building regulations as against objection of, 140 A.L.R. 1210.
Minimum dimensions or floor area of buildings, validity of zoning regulations which prescribe, 149 A.L.R. 1440.
Validity of zoning law as affected by limitation of area zoning (partial or piecemeal zoning), 165 A.L.R. 823.
Construction and application of provision authorizing variations in application of and special exceptions to zoning regulations, 168 A.L.R. 13.
Variations or exceptions, multiple dwellings as subject of, 168 A.L.R. 64.
Zoning requirements prescribing conditions of business or manufacturing designed to avoid nuisance or annoyance, 173 A.L.R. 271.
Garage as part of house with which it is physically connected, within zoning regulations, 7 A.L.R.2d 593.
Constitutionality of zoning based on size of commercial or industrial enterprises or units, 7 A.L.R.2d 1007.
Height, validity of building regulations, 8 A.L.R.2d 963.
Exclusion from municipality of industrial activities inconsistent with residential character, 9 A.L.R.2d 683.
Zoning regulations in respect of intoxicating liquors, 9 A.L.R.2d 877, 65 A.L.R.4th 555.
Change in ownership of nonconforming business or use as affecting right to continuance thereof, 9 A.L.R.2d 1039.
Validity of zoning ordinance or similar public regulation requiring consent of neighboring property owners to permit or sanction specified uses or construction of buildings, 21 A.L.R.2d 551.
Tourist or trailer camps, motor courts and motels, maintenance and regulation by public authorities, 22 A.L.R.2d 774.
Regulation and licensing of privately owned parking places, 29 A.L.R.2d 856.
Injuries or death, violation of zoning ordinance or regulation as affecting or creating liability for, 31 A.L.R.2d 1469.
Residential use in industrial district, validity of zoning regulations prohibiting, 38 A.L.R.2d 1141.
Boundaries, validity of zoning regulations with respect to uncertainty and indefiniteness of district boundary lines, 39 A.L.R.2d 766.
Nurseries and greenhouses: permissible activities under zoning laws permitting, 40 A.L.R.2d 1459.
Territory annexed to a municipality, what zoning regulations are applicable to, 41 A.L.R.2d 1463.
Cemetery, validity of public prohibition or regulation of location of, 50 A.L.R.2d 905.
Spot zoning, 51 A.L.R.2d 263.
"Club" or "clubhouse" within provisions of zoning regulations, what is, 52 A.L.R.2d 1098.
Zoning statute, ordinance or regulation, attack on validity on ground of improper delegation of authority to board or officer, 58 A.L.R.2d 1083.
Applicability of zoning regulations to governmental projects or activities, 61 A.L.R.2d 970.
Access to industrial, commercial or business premises over premises differently zoned, 63 A.L.R.2d 1446.
Lodging house or boardinghouse within provision of zoning ordinance or regulation, what is, 64 A.L.R.2d 1167.
"Home occupation" or the like within accessory use provision of zoning regulation, what constitutes, 73 A.L.R.2d 439.
Power to directly regulate or prohibit abutter's access to street or highway, 73 A.L.R.2d 652.
Zoning regulations as affecting churches, 74 A.L.R.2d 377, 62 A.L.R.3d 197.
Garage or parking space, validity and construction of zoning regulation requiring, 74 A.L.R.2d 418.
Shopping centers, zoning regulations as to, 76 A.L.R.2d 1172.
Restaurants, diners, "drive-ins," or the like, zoning regulations as forbidding or restricting, 82 A.L.R.2d 989.
"Racing" or "race track" within zoning regulation forbidding such activity, what constitutes, 83 A.L.R.2d 877.
Dancing schools, zoning regulations as applied to, 85 A.L.R.2d 1150.
License, regulation, and taxation of self-service laundries, 87 A.L.R.2d 1007.
Front setback, validity of provision in zoning ordinance or regulation, 93 A.L.R.2d 1223.
Open side or rear yards, validity of zoning regulations requiring, 94 A.L.R.2d 398.
Yards: construction of zoning regulations requiring side or rear yards, 94 A.L.R.2d 419.
Trailer or similar structure, use for residence purposes as within zoning provision, 96 A.L.R.2d 232, 17 A.L.R.4th 106.
Notice requirements prerequisite to adoption of zoning ordinance, validity of, 96 A.L.R.2d 449.
Width or frontage for residence lots, 96 A.L.R.2d 1367.
Maximum percentage of residential lot area which may be occupied by buildings, 96 A.L.R.2d 1396.
Research and laboratory facilities, application of zoning requirements to, 98 A.L.R.2d 225.
Apartments, validity, construction and effect of zoning regulations as regards "garden-type apartments" and "row housing," 99 A.L.R.2d 873.
Intoxicating liquors, construction of provisions precluding sale within specified distance from another establishment selling such liquors, 7 A.L.R.3d 809.
Civil defense: construction and application of zoning regulations in connection with bomb or fallout shelters, 7 A.L.R.3d 1443.
Validity of zoning measure prohibiting or regulating removal or exploitation of oil, minerals, soil, sand, gravel, stone or other natural products within municipal limits, 10 A.L.R.3d 1226.
Vending machines, application of zoning regulations to automatic, 11 A.L.R.3d 1004.
Garages: meaning of term "garage" as used in zoning regulation, 11 A.L.R.3d 1187.
Aesthetic objectives or considerations as affecting validity of zoning ordinance, 21 A.L.R.3d 1222.
Motels or motor courts, application of zoning regulations to, 23 A.L.R.3d 1210.
"Professional office," construction and effect of zoning provision permitting accessory use for, 24 A.L.R.3d 1128.
College fraternities or sororities, application of zoning regulations to, 25 A.L.R.3d 921.
Hospitals, sanitariums and nursing homes, validity and construction of zoning regulations expressly referring to, 27 A.L.R.3d 1022.
Hotels: meaning of term "hotel" as used in zoning ordinances, 28 A.L.R.3d 1240.
"Interim" zoning ordinance, validity and effect of, 30 A.L.R.3d 1196.
Golf courses, swimming pools, tennis courts, and the like, application of zoning regulations to, 32 A.L.R.3d 424.
Architectural style or design of structure, validity and construction of zoning ordinance regulating, 41 A.L.R.3d 1397.
Mobile home or trailer parks, validity and application of zoning regulations relating to, 42 A.L.R.3d 598.
Planned-unit, cluster or greenbelt zoning, 43 A.L.R.3d 888.
Exclusionary zoning, 48 A.L.R.3d 1210.
Buffer provision in zoning ordinance as applicable to abutting land in adjoining municipality, 48 A.L.R.3d 1303.
Junkyard or scrap metal processing plant, validity, construction and application of zoning ordinance relating to operation of, 50 A.L.R.3d 837.
Residential use, validity of ordinance zoning the entire municipality for, 54 A.L.R.3d 1282.
Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity, 56 A.L.R.3d 14.
Zoning: right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity, 56 A.L.R.3d 138.
Signs: validity of regulations restricting height of free standing advertising signs, 56 A.L.R.3d 1207.
Zoning: right to resume nonconforming use of premises after voluntary or unexplained break in the continuity of nonconforming use, 57 A.L.R.3d 279.
Waste disposal facilities of state or local governmental entities, applicability of zoning regulations to, 59 A.L.R.3d 1244.
Religious societies: what constitutes "church," "religious use," or the like, within zoning ordinance, 62 A.L.R.3d 197.
Low income housing: validity and construction of zoning ordinance requiring developer to devote specified part of development to low and moderate income housing, 62 A.L.R.3d 880.
What constitutes "school," "educational use," or the like within zoning ordinance, 64 A.L.R.3d 1087.
Zoning regulations as applied to colleges, universities, or similar institutions for higher education, 64 A.L.R.3d 1138.
"Family," what constitutes, within meaning of zoning regulation, 71 A.L.R.3d 693.
Initiative and referendum provisions, zoning ordinances as within operation of, 72 A.L.R.3d 1030.
Zoning regulations as applied to private and parochial schools below the college level, 74 A.L.R.3d 14.
Zoning regulations as applied to public elementary and high schools, 74 A.L.R.3d 136.
Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.
Construction and application of zoning regulations in connection with funeral homes, 92 A.L.R.3d 328.
Validity of municipality's ban on construction until public facilities comply with specific standards, 92 A.L.R.3d 1073.
Validity of statutory classifications based on population - zoning, building, and land use statutes, 98 A.L.R.3d 679.
Zoning or licensing regulation prohibiting or restricting location of billiard rooms and bowling alleys, 100 A.L.R.3d 252.
Housing facilities for former patients of mental hospital as violating zoning restrictions, 100 A.L.R.3d 876.
Zoning regulations prohibiting or limiting fences, hedges, or walls, 1 A.L.R.4th 373.
Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.
Enforcement of zoning regulation as affected by other violations, 4 A.L.R.4th 462.
Zoning: validity and construction of provisions of zoning statute or ordinance regarding protest by neighboring property owners, 7 A.L.R.4th 732.
Construction of new building or structure on premises devoted to nonconforming use as violation of zoning ordinance, 10 A.L.R.4th 1122.
What constitutes accessory or incidental use of religious or educational property within zoning ordinance, 11 A.L.R.4th 1084.
Validity of ordinance restricting number of unrelated persons who can live together in residential zone, 12 A.L.R.4th 238.
Validity of zoning or building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 A.L.R.4th 106.
Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.
Validity of local beachfront zoning regulations designed to exclude recreational uses by persons other than beachfront residents, 18 A.L.R.4th 568.
Validity of statute, ordinance, or regulation requiring compliance with housing standards before rent increase or possession by new tenant, 20 A.L.R.4th 1246.
Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.
Applicability and application of zoning regulations to single residences employed for group living of mentally retarded persons, 32 A.L.R.4th 1018.
Zoning: occupation of less than all dwelling units as discontinuance or abandonment of multifamily dwelling nonconforming use, 40 A.L.R.4th 1012.
Zoning: what constitutes "incidental" or "accessory" use of property zoned, and primarily used, for residential purposes, 54 A.L.R.4th 1034.
Change in area or location of nonconforming use as violation of zoning ordinance, 56 A.L.R.4th 769.
Zoning: what constitutes "incidental" or "accessory" use of property zoned and primarily used for business or commercial purposes, 60 A.L.R.4th 907.
Addition of another activity to existing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 724.
Change in volume, intensity, or means of performing nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 806.
Change in type of activity of nonconforming use as violation of zoning ordinance, 61 A.L.R.4th 902.
Alteration, extension, reconstruction, or repair of nonconforming structure or structure devoted to nonconforming use as violation of zoning ordinance, 63 A.L.R.4th 275.
Zoning regulation of intoxicating liquor as pre-empted by state law, 65 A.L.R.4th 555.
Construction and effect of statute requiring that zoning application be treated as approved if not acted on within specified period of time, 66 A.L.R.4th 1012.
Zoning: residential off-street parking requirements, 71 A.L.R.4th 529.
Laches as defense in suit by governmental entity to enjoin zoning violation, 73 A.L.R.4th 870.
Validity and construction of zoning laws setting minimum requirements for floorspace or cubic footage inside residence, 87 A.L.R.4th 294.
Validity of zoning laws setting minimum lot size requirements, 1 A.L.R.5th 622.
Construction and application of zoning laws setting minimum lot size requirements, 2 A.L.R.5th 553.
Validity of provisions for amortization of nonconforming uses, 8 A.L.R.5th 391.
Construction and application of terms "agricultural," "farm," "farming," or the like, in zoning regulations, 38 A.L.R.5th 357.
Activities in preparation for building as establishing valid nonconforming use or vested right to engage in construction for intended use, 38 A.L.R.5th 737.
Applicability of zoning regulations to governmental projects or activities, 53 A.L.R.5th 1.
Application of zoning regulations to golf courses, swimming pools, tennis courts, or the like, 63 A.L.R.5th 607.
Determination whether zoning or rezoning of particular parcel constitutes illegal spot zoning, 73 A.L.R.5th 223.
What is "mobile home", "house trailer", "trailer house", or "trailer" within meaning of restrictive covenant, 83 A.L.R.5th 651.
101A C.J.S. Zoning and Land Planning §§ 10, 29.
Validity, construction, and application of zoning ordinances regulating displays of noncommercial flags or banners, 103 A.L.R.5th 445.
