Valdez v. Vigil

2007 NMCA 031, 154 P.3d 691, 141 N.M. 316
CourtNew Mexico Court of Appeals
DecidedOctober 25, 2006
Docket25,018
StatusPublished
Cited by1 cases

This text of 2007 NMCA 031 (Valdez v. Vigil) 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
Valdez v. Vigil, 2007 NMCA 031, 154 P.3d 691, 141 N.M. 316 (N.M. Ct. App. 2006).

Opinion

OPINION

ALARID, Judge.

{1} This matter having come before the Court on Petitioner-Appellant’s motion for rehearing, it is hereby ordered that the opinion issued on September 29, 2006, is withdrawn and the following opinion substituted in its place, and Petitioner-Appellant’s motion for rehearing is denied.

{2} This case requires us to decide whether a county clerk may refuse to accept and record a survey plat, duly certified by a licensed professional surveyor as a boundary survey plat, on the ground that the plat has not been reviewed by county authorities for compliance with state and county subdivision law. We hold that a county clerk has statutory authority to independently review survey plats presented for recordation to determine whether a given survey accomplishes a subdivision of land; and that a county clerk may enlist the aid of county zoning and planning officials in conducting this review. We also hold that a county clerk’s authority to conduct a substantive review of the contents of a survey plat is limited to the threshold question of whether a plat accomplishes a subdivision of land.

BACKGROUND

{3} The operative facts are uncomplicated. Petitioner-Appellant Adriano Valdez is a licensed surveyor. Valdez prepared a boundary survey plat for a client whose land is located within the Tierra Amarilla Land Grant in Rio Arriba County. Valdez included the following statement on the plat: “I further certify that this survey is not a land division or subdivision as defined in the New Mexico Subdivision Act and that this instrument is a boundary survey plat of an existing tract or tracts.” On October 27, 2003, Valdez presented the boundary survey plat for filing at the Tierra Amarilla office of Respondent Appellee Rio Arriba County Clerk Fred J. Vigil. Respondent-Appellee Rio Arriba County has an unwritten, but firmly-estab-

318 141 NEW MEXICO REPORTS lished, policy requiring all survey plats, as a condition precedent to acceptance and recordation by the county clerk’s office, to bear a stamp and signature indicating that the plat has been submitted to county planning and zoning officials for review for compliance with state and county land use and subdivision laws. A deputy clerk pointed out that the survey did not have the required stamp indicating that it had been reviewed and approved by county planning and zoning officials. The chief deputy clerk directed Valdez to take the survey plat to the county planning and zoning department for review and approval. Valdez asserted that the plat was a “boundary survey” and that there was no requirement that such a survey be reviewed and approved by county officials prior to recordation by the county clerk. The county clerk’s office refused to accept and record the survey plat, returning it to Valdez. {4} Valdez filed a petition for a writ of mandamus in the Rio Arriba County District Court. The district court upheld the county clerk’s policy of refusing to record survey plats that did not bear a stamp and signature indicating prior review by the county planning and zoning officials. Because the survey had not been submitted to county planning and zoning officials pursuant to the county’s policy — which the district court had upheld — the district court ruled that the county clerk had no duty to accept and record the survey. The district court entered an order denying Valdez’s petition for a writ of mandamus. DISCUSSION [1]{5} The focus of this case is the following statute: A. For those surveys that do not create a division of land but only show existing tracts of record, ... a professional survey- or shall file and the county clerk shall accept and record a plat of survey entitled “boundary survey plat” that shall: (1) contain a printed certification of the professional surveyor stating that “this is a boundary survey plat of an existing tract”, or existing tracts, if appropriate, and that “it is not a land division or subdivision as defined in the New Mexico Subdivision Act (2) identify all tracts by the uniform parcel code designation or other designation established by the county assessor, if applicable; (3) meet the minimum standards for surveying in New Mexico as established by the board; (4) not exceed a size of eighteen inches by twenty-four inches and be at least eight and one-half inches by eleven inches; and (5) consist of two black-line copies, one of which the county clerk’s office may require to be a mylar copy, made by the surveyor from a mylar original, which shall be maintained in the professional survey- or’s files. NMSA 1978, § 61 — 28—28.2(A)(1)—(5) (1999) (emphasis added). We review the district court’s interpretation of a statute under a de novo standard. See Santa Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A., Inc., 2005-NMCA-051, ¶ 11, 137 N.M. 524, 113 P.3d 347 (observing that where the operative facts are undisputed the construction of a statute presents a question of law). {6} We begin with an analysis of the grammatical structure of Section 61-23-28.2(A). The portion of Subsection (A) quoted above consists of a single sentence composed of two clauses: (1) an initial independent clause, and (2) an extended dependent clause beginning with the words “that shall.” The dual subjects of the initial clause are “a professional surveyor” and “the county clerk”; the action is conveyed by the verbs “shall file” and “shall accept and record”; and the object of the independent clause is the phrase “a plat of survey entitled ‘boundary survey plat.’ ” The dependent clause beginning with “that shall” modifies “a plat of survey entitled ‘boundary survey plat.’ ” [2] {7} An inanimate object such as a survey plat obviously cannot create itself or determine its own contents. When the Legislature uses the grammatical structure, “[an inanimate object] that shall” followed by a list of criteria, it impliedly is imposing an obligation on some human actor or actors to comply with the statutory criteria. Although Subsection (A) refers to two actors — surveyors and county clerks — it does not expressly

identify the actor (or actors) who are responsible for insuring that the survey plat conforms to the criteria of paragraphs (l)-(5).

{8} A further complication results from the principle of statutory construction that the auxiliary verb “shall” can “express a duty, obligation, [or] requirement” and a “condition precedent.” NMSA 1978, § 12-2A-4(A) (1997). It is not clear in what sense the Legislature used “shall” in the subordinate clause beginning with “that shall.” Section 61-23-28.2(A). Some of the criteria in Subsection 61-23-28.2(A)(l)-(5) clearly express duties imposed on the surveyor preparing the plat, as for instance, in Subsection (A)(3) the requirement is that a survey “meet the minimum standards for surveying in New Mexico.” Other criteria such as the Subsection (A)(1) certification or the dimensions specified in Subsection (A)(4) can readily be read both as imposing a duty on the surveyor preparing the plat and as creating a condition precedent to a county clerk’s duty to accepting and recording a survey plat.

{9} On balance, we are persuaded that Subsection (A)(l)-(5) is principally addressed to surveyors, on whom they impose duties in preparing and submitting a plat.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 031, 154 P.3d 691, 141 N.M. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valdez-v-vigil-nmctapp-2006.