Holiday Management Company v. City of Santa Fe

488 P.2d 730, 83 N.M. 95
CourtNew Mexico Supreme Court
DecidedAugust 30, 1971
Docket9095
StatusPublished
Cited by1 cases

This text of 488 P.2d 730 (Holiday Management Company v. City of Santa Fe) 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
Holiday Management Company v. City of Santa Fe, 488 P.2d 730, 83 N.M. 95 (N.M. 1971).

Opinion

OPINION

STEPHENSON, Justice.

Defendant-appellant (“City”) has appealed from the issuance of an injunction which prohibited it from enforcing its zoning ordinances as they applied to a nonconforming Holiday Inn sign.

Neither plaintiff-appellee (“the partnership”) nor its predecessor in interest owned the sign. Rather, both were lessees of the sign which was owned by Holiday Inns of America, Inc. (“the corporation”) which was not a party.

The parties stipulated that the real estate where the partnership’s motel is located was formerly owned by D & L Motels, a partnership, which constructed the motel building in 1961; that the sign in question was erected about December, 1961, complying with all then-existing ordinances; that D & L entered into a License (hereinafter called “franchise”) Agreement with Holiday Inns Corporation on May 24, 1961, and a “Lease for Holiday Inn Sign” (“the first sign lease”) with the corporation on June 20, 1961; that the first ordinance affecting the sign was No. 1963-19, adopted November 4, 1963, followed by the less restrictive ordinance, No. 1964-20, passed on August 26, 1964; that early in 1968 D & L Motels conveyed the motel real estate to the partnership and that the corporation about the same time issued a franchise and a sign lease (“the second sign lease”) to the partnership; that under its respective sign agreements with D & L Motels and with the partnership, the corporation retained title to the sign; that on July 30, 1969, the City enacted ordinance No. 1969-18 amending the 1964 sign ordinance; that the partnership’s motel is located in a C-2 (General Commercial) zoning district; and that the only claimed violation is that the face area of the sign in question exceeds that permitted by ordinances Nos. 1964-20 and 1969-18.

Under both sign leases, the sign was and remained the personal property of the corporation and was precluded from becoming a fixture or appurtenance to the real estate.

There is no question but that the sign violates all of the applicable ordinances, and we are thus not concerned that one of them, less restrictive in its effect, was adopted after the partnership’s entry upon the scene. The sole issue is whether the City is free to enforce the material ordinances.

The primary position of the partnership is summarized in its answer brief as follows :

“The rights of the Plaintiff, we contend, were determined prior to the enactment of any zoning ordinances by the City of Santa Fe which would require the removal of the sign. To now cause the Plaintiff to move the sign would be to deprive it of a pre-existing right and deprive it of its property without paying just compensation therefor, it would impair the obligation of the pre-existing contract providing the maintenance of the sign and it will deprive Plaintiff of its property without due process of law, all because the ordinance passed by the City of Santa Fe would operate retrospectively and change the legal consequences of the prior acts of the Plaintiff herein.”

It is obvious that if the partnership cannot project its rights in the sign or sign lease back in time so that the rights antedate the enactment of the material ordinance, its position must fail. This is an endeavor attended with some difficulty.

The partnership asserts that it has title to the land upon which the sign is em-placed; that it acquired its rights in the sign as “part and parcel” of the same transaction by which it acquired the motel, and that the sign and the motel building are “one entity.” These factual assertions, in most instances, find support in the trial court’s findings. But they lack legal significance in that they do not bring into play any legal principle which causes the partnership’s rights in the sign or sign lease to antedate the sign ordinance. At least no such operative legal principle is suggested to us.

The partnership places its principal reliance upon an assertion that the second sign lease was a “re-issue” of the first. The record shows that the partnership’s predecessor and the corporation entered into a “Lease For Holiday Inn Sign” in 1961. The first sign lease provides that in event the business or a material part thereof should be voluntarily or involuntarily transferred, all rights and interests of the predecessor (D & L Motels) in the sign should terminate. The corporation and the partnership entered into a “Maintenance Lease For Holiday Inn Great Sign” on April 4, 1968. Typed upon this second sign lease are the words “Reissued to new owners 1/29/68.” Nothing in the transcript explains this notation. The parties stipulated that the first sign lease was reissued to the partnership and the trial court so found. No document or writing purports to transfer the first sign lease or any interest therein or in the sign to the partnership. To the contrary, the second sign lease is a completely separate document. It does not purport to cause the partnership to succeed to the rights of its predecessor in the sign or in the first sign lease, and in fact is executed on a different form. The City points out numerous differences in the documents, some of which are minor, but others of which are of some significance.

Thus, in view of what we have said of other contentions of the partnership, its theory that its rights in the sign or sign lease antedate the ordinance depends upon the meaning to be attributed to the word “reissue.”

“Reissue” is not a word of precise legal meaning. Words and Phrases, Permanent Edition, indicates that .‘it has not been judir dally defined except as a word of technical meaning in the field of patents. It is not listed in Black’s Law Dictionary, Revised Fourth Edition. Webster’s Third New International Dictionary defines the noun and verb forms, so far as here pertinent, as follows:

“reissue — n. A second or repeated issue (as of a publication) with change only in price or form. * * * ”
“re-issue — vb: To come forth again; * * * vt: to issue again; esp: to cause to appear or become available after a period of absence or unavailability.”

In our view, the word “reissue” itself refutes the concept of uninterrupted continuity essential to the partnership’s theory. This is borne out by the dictionary definition. If the first sign lease had continued, uninterrupted, there would have been no occasion for a second or repeated issue. It would not have come forth again or appeared or become available after an absence. These considerations, coupled with the lack of any transfer of rights in the sign or first sign lease to the partnership, the termination provisions of the first sign lease in event of transfer, and the differences between the two sign leases, impel us to hold that the partnership’s rights did not vest prior to the passage of the ordinance, and make consideration of the various authorities cited by it unnecessary.

The basis for the trial court’s making the injunction permanent was a determination that the sign ordinance was unconstitutional. In the second point of the parties’ briefs, the City claims that the court erred in this regard and the partnership with equal vigor asserts that it did not.

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Bluebook (online)
488 P.2d 730, 83 N.M. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holiday-management-company-v-city-of-santa-fe-nm-1971.