Alba v. Peoples Energy Resources Corp.

2004 NMCA 084, 94 P.3d 822, 136 N.M. 79
CourtNew Mexico Court of Appeals
DecidedMay 13, 2004
Docket23,963
StatusPublished
Cited by11 cases

This text of 2004 NMCA 084 (Alba v. Peoples Energy Resources Corp.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alba v. Peoples Energy Resources Corp., 2004 NMCA 084, 94 P.3d 822, 136 N.M. 79 (N.M. Ct. App. 2004).

Opinion

OPINION

VIGIL, J.

{1} The Planning and Zoning Commission of Valencia County (Zoning Commission) approved a site development plan for a natural gas fired electric generating facility (Facility) submitted by Peoples Energy Resources Corporation (Peoples). Lawrence Alba (Alba) unsuccessfully appealed the Zoning Commission decision to the Valencia County Board of Commissioners (County Commission), which also approved the plan. Alba then appealed to the district court, which reversed the decision of the County Commission. See NMSA 1978, § 3-21-9 (1999) (providing person aggrieved by decision of zoning authority with statutory right of appeal); NMSA 1978, § 39-3-1.1(0(1999) (providing for appeal to district court from final decision of administrative agency); Rule 1-074 NMRA 2004 (stating procedure to appeal final administrative decision to district court where there is a statutory right to do so).

{2} We granted Peoples’ petition for a writ of certiorari to review the decision of the district court. See § 39-3-l.l(E) (providing that party to appeal of final administrative decision in district court may seek review of district court decision by filing for writ of certiorari in Court of Appeals which may exercise its discretion whether to grant review); Rule 12-505 NMRA 2004 (stating procedure to seek certiorari in Court of Appeals from decision of district court in administrative appeals). We reverse the district court and reinstate the County Commission’s decision approving the site development plan for the Facility.

BACKGROUND

{3} The Facility Peoples seeks to develop is a natural gas fired electric generating plant which will typically operate during times of peak electrical demand and emergencies. Peoples wishes to locate the Facility in the Rio Grande Industrial Park near Belen, New Mexico. Peoples chose that particular location because of the history behind a previously rejected application to develop an electric generating station made by Cobisa Rio Puerco Limited Partnership (Cobisa). Cobisa had proposed to build its facility on vacant land that was zoned as “Outland District,” and sought to amend the official zoning map to change the designation of its proposed site to “Heavy Industrial District, 1-3” (1-3). Cobisa’s application was rejected by the County Commission because it had not been demonstrated that the proposed use of the land was the most appropriate use, “given the fact that Valencia County has approximately 2300 acres of vacant industrial lands already deemed appropriate for industrial uses.”

{4} Peoples therefore searched for a site on property already zoned 1-3, and settled on a parcel of land located in the Rio Grande Industrial Park. Other businesses located in the Rio Grande Industrial Park included Mesa Environmental (a company that recycles used oil), Avonite (a company that uses acrylic or polyester resins and mineral fillers to manufacture such products as counter-tops), Solo Cup, Chem Lime, Hydro Cut, and United Desiccants.

{5} After tentatively selecting the site, Peoples wrote to Steven Chavez, the Valencia County Planner, in July 2001, seeking confirmation that the Rio Grande Industrial site was appropriately zoned for the proposed Facility. Steven Chavez was also the “main architect” of Valencia County’s Comprehensive Zoning Ordinance, §§ 100-1307.3 (Nov. 8, 1999). Steven Chavez responded that the entire Rio Grande Industrial Park is zoned 1-3, and an electric generation plant is a permissive use in an 1-3 zone. Steven Chavez wrote that, “[a] facility which processes natural gas for the production of electricity qualifies under [Section 703.02.E] of the 1-3 zone district as a permitted use.” After receiving this response, Peoples purchased an option to acquire the site, and began the application process.

{6} In April 2002, Peoples held a preapplication conference, as required, with Valencia County Zoning Supervisor Ruben Chavez. The ordinance describes different types of procedures to be used for review of applications. § 1201.01. Under procedure type A, the County Zoning Administrator determines the adequacy and completeness of the plan described in the application. § 1201.01.A. Under procedure type B, notice of the application must be given to surrounding landowners, and a public hearing may be held before the Zoning Commission, if requested. § 1201.01.B. Ruben Chavez recommended that “a higher level of review than a type A process would most likely be followed” for Peoples’ application. He felt that, due to the size of the facility, a higher level of review should be followed. Ruben Chavez also reviewed the foregoing response written by Steven Chavez and concurred with his determination that a power plant is allowed in an 1-3 zone.

{7} Peoples submitted its final application in August 2002, and a public hearing was conducted by the Zoning Commission. The Zoning Commission heard testimony regarding the Facility and received testimony and comments from numerous citizens, including Alba. The Zoning Commission declared that the Rio Grande Industrial Park is zoned 1-3. Alba expressed frustration that the zoning of the property in the Rio Grande Industrial Park had been changed to 1-3 in 1999, and stated that he never received notice of the change. However, Ruben Chavez explained that in 1999, the entire county was re-zoned and notification was properly made by publication in a newspaper of general circulation. County Attorney Garde explained that the County’s position was that the property in question was zoned 1-3. At the conclusion of the hearing, the Zoning Commission approved People’s site development application.

{8} Alba appealed the decision of the Zoning Commission to the County Commission. Alba argued, among other things, that an electric power plant is not a permissive or conditional use in an 1-3 zone. The County Commission held a public hearing on the appeal on September 17, 2002, and designated it a de novo hearing. The County Commission heard argument from the parties as well as the public. After further discussion, the County Commission denied Alba’s appeal.

{9} Alba appealed the County Commission’s decision to the district court. Alba again argued that an electric power plant is not a permitted use in an 1-3 district, and that there was not substantial evidence to support a determination that the property in question is zoned 1-3. He also argued that the County Commission was arbitrary and capricious when it refused to obtain and consider what he represented to be “a certified copy” of a map showing the zoning of the property was not 1-3. Following oral argument, the district court filed its order reversing the decision of the Valencia County Commission. The order states:

[T]he decision of the Valencia County Commission that the proposed Valencia Energy Facility is a “permitted use” in the 1-3 zone is reversed, the Court finding that such facility falls outside the meaning of permitted use, applying the ordinary and common sense meaning of the County’s zoning ordinance; and that further, the County Commission erred in not following the proper procedures in determining that the underlying zoning on the subject property is 1-3 and should give the Appellant and any other member of the public an opportunity to present any evidence concerning whether or not this industrial park is zoned 1-2 or 1-3.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 084, 94 P.3d 822, 136 N.M. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alba-v-peoples-energy-resources-corp-nmctapp-2004.