Burroughs v. Board of County Commissioners

540 P.2d 233, 88 N.M. 303
CourtNew Mexico Supreme Court
DecidedSeptember 8, 1975
DocketNo. 10090
StatusPublished
Cited by11 cases

This text of 540 P.2d 233 (Burroughs v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burroughs v. Board of County Commissioners, 540 P.2d 233, 88 N.M. 303 (N.M. 1975).

Opinion

OPINION

McMANUS, Chief Justice.

This cause began in 1971 when Empire Realty and Trust, Inc., intervenor-appellee, filed application No. CZ 71-28 with the Bernalillo County Zoning Administrator to change the zone classification of a 9.4-acre tract of land from A-2 residential to C-l commercial. The request was for the purpose of operating an overnight campground. After four public hearings, the application was eventually denied on November 8, 1972. This decision was based in part upon the following statement made by the Bernalillo County Planning Department: “Due to topographic conditions of excessive slope and varied relief, penetration into forested areas and juxtaposition with a residential subdivision, commercial zoning for the subject property would not be appropriate, nor would it be in the best interest of the public at large.” Bernalillo County Board of County Commissioners, Minutes, November 8, 1972.

Empire Realty then asked that an exception be made in their case by requesting a special use permit. The application was labeled CSU 73-24, and its purpose was to obtain permission to build an overnight campground on the same 9.4 acres referred to herein. At a public hearing on July 17, 1973, respondent-appellee, Board of County Commissioners of the County of Bernalillo (hereinafter the Commissioners), approved CSU 73-24.

The petitioner-appellant, George E. Burroughs, petitioned the district court, pursuant to § 14-20-7, N.M.S.A. 1953 (Repl.Vol. 3, 1968), for review of the Commissioners’ decision. Empire Realty was allowed to intervene as a party respondent. Ovedio Saiz, intervenor-appellant, was granted leave to intervene as a party petitioner. The court entered judgment for the respondent, thereby approving the special use permit.

The county’s authority to promulgate zoning ordinances must come from enabling legislation from the state legislature. Cf. City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13 (1964); City of Carlsbad v. Caviness, 66 N.M. 230, 346 P.2d 310 (1959). Therefore, any exercise of power under a zoning ordinance must be authorized by statute. The pertinent statutes are §§ 14—20-1 et seq., N.M.S.A.1953 (Repl.Vol. 3, 1968).

Section 14-20-1, supra, provides :

“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 of 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 14— 20-1 through 14-20-12 New Mexico Statutes Annotated, 1953 Compilation; 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 kinds of buildings within each district but regulation in one district may differ from regulation in another district.”

As a result of this statute, the Commissioners adopted a “Comprehensive Zoning Ordinance of Bernalillo County” (hereinafter the Ordinance). This took effect on April 17, 1973. In the Ordinance, pursuant to § 6 thereof, the county was divided into nine [9] zones. The land which is the subject of this suit is zoned A-2 rural agricultural which is provided for in § 9 of the Ordinance.

Section 14-20-6(C), N.M.S.A.1953 (Repl.Vol. 3, 1968), makes allowance for special exceptions to zoning ordinances in the following language:

“When an appeal alleges that there is error in any order, requirement, decision or determination by an administrative official, commission or committee in the enforcement of sections 14-20-1 through 14-20-12 New Mexico Statutes Annotated, 1953 Compilation, or any ordinance, resolution, rule or regulation adopted pursuant to these sections, the zoning authority by a two-thirds [%] vote of all its members may:
(1) authorize, in appropriate cases and subject to appropriate conditions and safeguards special exceptions to the terms of the zoning ordinance or resolution : * *

Pursuant to this statute, § 16 of the Ordinance authorizes the Commissioners to issue special use permits in certain specified situations:

“A. By special Use Permit after receipt of a recommendation from the Bernalillo County Planning Commission, the Board of County Commissioners may authorize the location of uses in any zone in which they are not permitted by other sections of this ordinance; the Board of County Commissioners may likewise authorize the increase in height of buildings beyond the limits set by previous sections of this ordinance. With such permits, the Board of County Commissioners may impose such conditions and limitations as it deems necessary.
* * * * * *
“B. Such Special Use permits may authorize only the following uses: * * * “(13) Planned development area.
* * * * * * “(18) Trailer court, provided it complies with the following requirements:
‡ ;j< % y>

(Emphasis added.)

The question thus raised and to be decided here is whether “Special Use Permits,” authorized by § 16 of the Ordinance is equivalent to and authorized by the “Special Exceptions” provision of § 14-20-6(C), supra. Appellant Burroughs contends that the two terms (“special use” and “special exceptions”) are synonymous and that the conditions of § 14 — 20-6(C), supra, must be met by the party seeking a special use permit under § 16(A) of the Ordinance. On the other hand, the appellees contend that the two terms have different meanings. It is our opinion that the two phrases mean one and the same thing. As stated in 3 R. Anderson, American Law of Zoning, § 15.01 (1968):

“The ‘special exception,’ the ‘special permit,’ and the use permitted subject to administrative approval are qualitatively the same. Each involves the use which is permitted rather than proscribed by the zoning regulations.”

There were references in the briefs to “variances'” but the New Mexico Zoning Regulations refer only to “special exceptions.” These terms must be distinguished.

101 C.J.S. Zoning § 273, at 1038-39 (1958), states:

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Burroughs v. BD. OF CTY. COM'RS, CTY., BERNALILLO
540 P.2d 233 (New Mexico Supreme Court, 1975)

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Bluebook (online)
540 P.2d 233, 88 N.M. 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burroughs-v-board-of-county-commissioners-nm-1975.