Cox v. MUNICIPAL BOUNDARY COM'N

954 P.2d 1186, 124 N.M. 709
CourtNew Mexico Court of Appeals
DecidedJanuary 13, 1998
Docket17823
StatusPublished
Cited by4 cases

This text of 954 P.2d 1186 (Cox v. MUNICIPAL BOUNDARY COM'N) 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
Cox v. MUNICIPAL BOUNDARY COM'N, 954 P.2d 1186, 124 N.M. 709 (N.M. Ct. App. 1998).

Opinion

954 P.2d 1186 (1998)
124 N.M. 709
1998-NMCA-025

Mark D. and Catherine H. COX, et al., Petitioners-Appellees,
v.
MUNICIPAL BOUNDARY COMMISSION and The City of Sunland Park, Respondents-Appellants.

No. 17823.

Court of Appeals of New Mexico.

January 13, 1998.

*1187 Sarah M. Singleton, Grace Philips, Montgomery & Andrews, P.A., Santa Fe, for appellees.

Tom Udall, Attorney General, Monica M. Ontiveros, Assistant Attorney General, Santa Fe, for appellant Municipal Boundary Commission.

Paul D. Mannick, Frank R. Coppler, Coppler & Mannick, P.C., Santa Fe, for appellant City of Sunland Park.

OPINION

BOSSON, Judge.

¶ 1. This is the latest in a long series of disputes between the City of Sunland Park, which wishes to annex certain land in the Santa Teresa area of southern Dona Ana County, and various residents of the area who object. See Cox v. Municipal Boundary Comm'n, 120 N.M. 703, 905 P.2d 741 (Ct. App.1995) (Cox I). Today we decide: (1) whether the Municipal Boundary Commission (the Commission) may appeal from the order of the district court remanding this action for a new hearing after new notice; (2) whether the Commission published sufficient notice of its hearing on January 25 and 26, 1992 at which it considered Sunland Park's petition for annexation; and (3) whether the Commission had the necessary quorum to hear Sunland Park's petition when its only attorney commissioner recused himself. Answering each question in the affirmative, we decide, most importantly, that the statutory notice applicable to Commission proceedings is NMSA 1978, Section 3-7-14(B) (1965), and not NMSA 1978, Section 3-1-2(J) (1987) of the Municipal Code. As a result, we reverse the district court and affirm the annexation proceedings of the Commission.

STANDARD OF REVIEW

¶ 2. The New Mexico Legislature has delegated to the Commission, an administrative agency, the authority to make annexation decisions. See NMSA 1978, §§ 3-7-11 to -16 (1965, as amended through 1995); Mutz v. Municipal Boundary Comm'n, 101 N.M. 694, 697, 688 P.2d 12, 15 (1984); Cox I, 120 N.M. at 705, 905 P.2d at 743. The district court reviews Commission decisions by writ of certiorari. See § 3-7-15(E). Under that limited standard of review, the district court determines whether Commission actions are reasonable and supported by substantial evidence and not fraudulent, arbitrary, or capricious. Cox I, 120 N.M. at 705, 905 P.2d at 743. We apply the same standard in reviewing Commission actions. Id. We are not bound by the district court's resolution of questions of law which we review de novo. Id.

BACKGROUND

¶ 3. Whether the Santa Teresa area should be annexed to Sunland Park, or organized in some other way, has been a subject of public debate since at least 1986, when Sunland Park wrote property owners in southern Dona Ana County urging them to seek annexation. See City of Sunland Park v. Santa Teresa Concerned Citizens Ass'n, 110 N.M. 95, 792 P.2d 1138 (1990). Instead of responding to Sunland Park's invitation, some property owners formed the Santa Teresa Concerned Citizens Association and petitioned the Dona Ana County Commission for incorporation as a separate municipality, pursuant to NMSA 1978, Sections 3-2-1 to -9 (1965). See City of Sunland Park, 110 N.M. at 95, 792 P.2d at 1138. The County Commission approved the petition, but the Supreme Court ultimately reversed on the ground that the Concerned Citizens Association "did not carry its burden of conclusively proving that it could provide services sooner than could the city [Sunland Park]." Id. at 100, 792 P.2d at 1143.

¶ 4. Sunland Park then petitioned the Commission to order annexation under Sections 3-7-11 to -16. The Commission scheduled a hearing for January 25 and 26, 1992, and published notice pursuant to Section 3-7-14(B), once each week for four consecutive weeks in the Las Cruces Sun-News, a local newspaper of general circulation, with the last publication more than twenty days before the hearing. There is no dispute that *1188 the Commission fully complied with Section 3-7-14(B).

¶ 5. At some time after notice of the hearing was first published, but before the hearing took place, a petition circulated among Santa Teresa property owners and business owners opposing annexation. Some, but not all, of the Petitioners-Appellees herein (Petitioners) signed the petition. At the hearing some of the Petitioners, as well as other like-minded persons and attorneys for some Petitioners, opposed annexation with lay and expert witnesses, by direct and cross-examination, and with argument. Some of the Petitioners signed the sign-in sheet at the hearing. Other Petitioners did not appear at the hearing either personally or through counsel and did not sign the petition circulated before the hearing. At the hearing no one challenged the adequacy of the notice published by the Commission pursuant to Section 3-7-14(B).

¶ 6. After the hearing, the Commission decided that most of the land proposed for annexation met the criteria contained in Section 3-7-15(A), in that it was contiguous to existing Sunland Park boundaries and Sunland Park could provide municipal services to the new territory within a reasonable time. The Commission ordered that the territory be annexed, with the exception of certain specified lots which are not at issue in this appeal.

¶ 7. Petitioners then applied for a writ of certiorari to the district court for Santa Fe County, which ruled that the Commission had erred in not considering an expanded concept of contiguity including community of interest and homogeneity. On interlocutory appeal, this Court reversed the district court and remanded for further consideration of other issues raised by Petitioners. See Cox I, 120 N.M. at 705, 708, 905 P.2d at 743, 746.

¶ 8. On remand to the district court, Petitioners revived an issue that had been mentioned in their original petition for writ of certiorari to the district court but which had not been briefed before the court nor raised in the Commission below: whether the Commission provided adequate public notice of the January 25 and 26, 1992 hearing. Petitioners claimed that the Commission lacked subject matter jurisdiction because it had published notice in the Las Cruces Sun-News, pursuant to Section 3-7-14(B), but not in a newspaper of general circulation with an office in Sunland Park or, in the alternative, that it had not posted notice at six public places within Sunland Park, all as set forth in a general definitional section of the Municipal Code, Section 3-1-2(J). The district court agreed with Petitioners and ordered a new hearing with new notice under Section 3-1-2(J). The Commission and Sunland Park appeal from this order.

¶ 9. There is one additional issue. By statute, one of the members of the Commission must be an attorney. See § 3-7-12(A). Before the January 1992 hearing, some of the Petitioners asked that the attorney commissioner recuse himself because he had previously represented the Santa Teresa Concerned Citizens Association in proceedings before the County Commission. The attorney commissioner honored the request and recused from Commission proceedings.

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954 P.2d 1186, 124 N.M. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-municipal-boundary-comn-nmctapp-1998.