Fairway Vill. v. Bd. of Commr's of Dona Ana Cnty. ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40374
FAIRWAY VILLAGE NEIGHBORHOOD
COUNCIL, INC.,
Appellant-Respondent,
v.
BOARD OF COMMISSIONERS OF
DOÑA ANA COUNTY,
Appellee-Petitioner,
and
PICACHO HILLS DEVELOPMENT
COMPANY,
Interested Party.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Court Judge
Karen E. Wootton Legal Services, P.C.
Karen E. Wootton
Las Cruces, NM
for Respondent
Macke Law & Policy, LLC
Daniel J. Macke
Albuquerque, NM
for Petitioner
MEMORANDUM OPINION
DUFFY, Judge.
{1} The Board of County Commissioners of Doña Ana County (Board) appeals from
a district court order reversing the Board’s approval of a zoning change. The Board
contends the district court erred by (1) finding that the Board was required to make
independent or separate findings rather than adopting findings and conclusions
prepared by county development staff, and (2) concluding the Board’s decision was not
supported by substantial evidence. For the reasons that follow, we affirm the district
court’s order reversing the Board’s decision.
BACKGROUND
{2} In June 2021, the Doña Ana County Planning and Zoning Commission (the
Commission) denied an application by Picacho Hills Development Company for a
zoning change for a 4.56 acre parcel of land located at 1200 Fairway Village Drive in
Doña Ana County. Picacho Hills sought to upzone the parcel from D3 (high density
residential) to C2 (community commercial) to allow for the development of a recreational
vehicle storage facility on the land. In September 2021, the Board, acting in an appellate
capacity, held a de novo public hearing on the Commission’s decision to deny the zone
change. During the hearing, the Board heard testimony from a Picacho Hills
representative, community development department staff, and community members
opposed to the zoning. The Board voted to reverse the Commission’s decision and
approve the zone change, finding that the proposed development was consistent with
the Doña Ana County Comprehensive Plan and the zone change was appropriate and
reasonably necessary to protect the public interest. The Board also found that there was
a “substantial change in conditions in the surrounding area.” Furthermore, the Board
noted that the zone change was not “spot zoning” and would be beneficial to residents
in the area by increasing the availability of RV storage.
{3} Fairway Village Neighborhood Council, Inc. are nearby homeowners who oppose
the zone change and development of an RV storage facility on the land. Following the
Board’s decision, Fairway Village appealed the Board’s approval of the zone change to
the district court.
{4} The district court, acting in an appellate capacity pursuant to Rule 1-074 NMRA,
reversed the Board’s decision and denied Picacho Hills’s application for a zone change.
In a letter decision, the district court stated that the Board’s order approving the zone
change “merely parrots [the Board’s] staff’s conclusions without any analysis or citation
to the record to support those conclusions” and noted that the Board did not discuss the
standards for zoning changes set forth in Albuquerque Commons Partnership v. City
Council of Albuquerque, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 311, or Miller v. City
of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665, “in such a way as to
show that the [Board] complied with the applicable legal standard necessary to justify a
zoning change.” We granted the Board’s Rule 12-505 NMRA petition for writ of certiorari
review.
DISCUSSION
{5} “When reviewing an agency decision by writ of certiorari, we apply the same
standard of review applicable to the district court under Rule 1-074(R) NMRA . . . while
at the same time determining whether the district court erred in the first appeal.” Ann
Morrow & Assocs. v. N.M. Hum. Servs. Div., 2022-NMCA-060, ¶ 7, 517 P.3d 965(internal quotation marks and citation omitted). This Court will affirm an agency’s
decision unless (1) the agency acted fraudulently, arbitrarily, or capriciously; (2) based
upon the whole record on appeal, the agency’s decision was not supported by
substantial evidence; (3) the agency’s action was outside its scope of authority, or (4)
the agency’s action was not in accordance with law. Rule 1-074(R).
{6} The zoning change at issue must be justified by (1) a change in conditions in the
community that make the amendment reasonably necessary to protect the public
interest, (2) a mistake in the original zoning, or (3) a showing that the zoning change is
more advantageous to the community compared with other available property.
Albuquerque Commons, 2008-NMSC-025, ¶¶ 25, 30; Miller, 1976-NMSC-052, ¶ 14.
The Board’s order indicates that it relied on the first justification, change in community
conditions. The district court determined that the Board’s finding was not supported by
substantial evidence. The district court noted that the Board, “in their formal order
adopting recommendations from its staff, found that . . . there had been a substantial
change in the area since 1999 through the existence of the golf course, clubhouse, and
wastewater plant.” The court noted, however, that the golf course, clubhouse, and
wastewater plant had all been in existence since 1979 and predate the most recent
zoning classification for the area, which occurred in 2017. The court concluded, “There
was no evidence to show any substantial change in the area’s uses or activities since
the most recent zoning adoption.” See Miller, 1976-NMSC-052, ¶ 15 (noting that in
order to show a change in community conditions, there must be a substantial change in
the character of the neighborhood “since the original zoning to such an extent that the
reclassification or change ought to be made”). The Board has not challenged this aspect
of the district court’s decision on appeal to this Court, and has not directed us to any
evidence in the record of post-2017 activity supporting its finding that a change in
conditions justify the zoning change. Consequently, we affirm the district court’s
determination that the Board’s action was not supported by substantial evidence.
{7} The Board argues that even if the change in condition analysis fails, its decision
is affirmable under the third justification, that the change is advantageous to the
community. See Albuquerque Commons, 2008-NMSC-025, ¶ 30. We note that the
Board does not appear to have relied on this justification when reaching its decision.
Nevertheless, on the merits, the “public need” justification also fails because it is
unsupported by substantial evidence in the record. The Court in Albuquerque Commons
noted that “the 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.” Id. (internal quotation marks and citation
omitted). While the Board argues that the proposed RV storage facility would “fill the
need of the surrounding community, as there is limited storage of this type that is not
already at capacity available in this area,” it has not pointed to any evidence in the
record supporting the second prong. The Board’s briefing likewise fails to address how
this need will be best served by changing the classification of this particular piece of
property. Consequently, the Board has not demonstrated that the zoning change was
justified based on the benefit to the community under the criteria required by
Albuquerque Commons.
{8} In sum, after a thorough review of the parties’ briefs and a whole record review of
the proceedings below, we affirm the district court’s order reversing the Board’s decision
and denying Picacho Hills’ application for a zone change. The Board has not
demonstrated that the zoning change was justified under any of the criteria set forth in
Albuquerque Commons and Miller, or that the district court erred in concluding that the
Board’s actions are arbitrary, capricious, and not supported by substantial evidence.
CONCLUSION
{9} We affirm the district court’s order reversing the Board’s decision.
{10} IT IS SO ORDERED.
MEGAN P. DUFFY, Judge
WE CONCUR:
JACQUELINE R. MEDINA, Judge
GERALD E. BACA, Judge