Webb v. Fox

737 P.2d 82, 105 N.M. 723
CourtNew Mexico Court of Appeals
DecidedMarch 24, 1987
DocketNo. 8692
StatusPublished
Cited by3 cases

This text of 737 P.2d 82 (Webb v. Fox) 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
Webb v. Fox, 737 P.2d 82, 105 N.M. 723 (N.M. Ct. App. 1987).

Opinion

OPINION

FRUMAN, Judge.

Plaintiffs appeal from the trial court’s dismissal of their petition for certiorari from the decision of the Dona Ana County Board of County Commissioners to grant a special use permit to F & W Enterprises. The board is the only party-defendant in this appeal. The issues raised by plaintiffs are: (1) whether F & W Enterprises is an “aggrieved person” under NMSA 1978, Section 3-21-8(B) (Repl.1985); (2) whether the decision of the board was beyond the scope of its authority and arbitrary and capricious; and (3) whether an ex parte communication between a board member and F & W Enterprises, as well as a property view by that member, violated plaintiffs’ right to a fair and impartial hearing before the board. Because we reverse on the basis of the first issue, the remaining issues need not be decided.

BACKGROUND

Plaintiffs are owners of residential property. Near their property is an approximately eleven-acre tract of land owned by C.L. Crowder Investment Company. F & W Enterprises intended to purchase this eleven-acre tract in its entirety and develop it in three phases. For the first phase, storage lockers and recreational vehicle parking spaces were to be built on three of the eleven acres.

Pursuant to a zoning ordinance, F & W Enterprises applied to the Dona Ana County Planning Commission on December 28, 1983, for a special use permit to implement phase one. Following notice and a hearing, the planning commission denied the application on January 24, 1984. F & W Enterprises then appealed that denial to the Dona Ana County Board of Zoning Appeals. The board held its first hearing on March 7, 1984. After hearing statements and receiving exhibits from plaintiffs, F & W Enterprises and others, the board tabled the appeal to review the material presented and to permit an on-site view by those board members who desired to do so.

The board reconvened on March 21, 1984, received additional testimony and exhibits and considered an alternative site within the tract for phase one. It then reversed the decision of the planning commission and granted a special use permit to F & W Enterprises for phase one at the alternative site, even though it entered a finding of fact that the tract was owned by C.L. Crowder Investment Company.

In their amended petition for certiorari to the district court, plaintiffs alleged that C.L. Crowder Investment Company was selling the eleven-acre tract to F & W Enterprises but that the sale had not been consummated as of the January 1984 planning commission hearing. In its answer, F & W Enterprises admitted these allegations and added that it purchased the eleven-acre tract for C.L. Crowder Investment Company on March 22, 1984. This date of purchase is one day after the date of the board of appeals’ final decision to grant the special use permit.

Plaintiffs did not allege in their petition that Section 3-21-8(B) permits only an “aggrieved person” to appeal a decision of the planning commission, nor did they allege that F & W Enterprises was not an “aggrieved person.” However, plaintiffs did argue the issue to the district court, but the district court’s judgment did not contain a ruling on this issue.

DISCUSSION

Plaintiffs contend that the board of appeals lacked jurisdiction to entertain the appeal of F & W Enterprises since F & W Enterprises was not an “aggrieved person” who had standing to appeal under Section 3-21-8(B). This statute and the zoning ordinance do not provide a definition of an “aggrieved person.”

In the event an applicant for a special use permit is not the owner of record of the property at issue, the zoning ordinance requires that the owner attest in writing to the proposed use statement made by the applicant. Such an attestation is not present in this case. The ordinance also permits an appeal from the planning commission’s decision to the board of appeals “by any person aggrieved * * * or affected” and also “by the applicant or by any other interested party.”

The board makes several arguments to convince us that F & W Enterprises is an “aggrieved person.” First, the board contends that the issue was not preserved for consideration on appeal because it was not raised by plaintiffs before the board and was not specified in their petition for certiorari. We answer this contention by first noting that jurisdictional issues may be raised at any time during the pendency of a proceeding. See Sims v. Mechem, 72 N.M. 186, 382 P.2d 183 (1963); State v. Doe, 91 N.M. 356, 573 P.2d 1211 (Ct.App.1977). Secondly, since Section 3-21-8(B) provides for appeal by an “aggrieved person,” the question of whether F & W Enterprises has such standing is a jurisdictional question. Cf. St. Sauver v. New Mexico Peterbilt, Inc., 101 N.M. 84, 678 P.2d 712 (Ct.App.1984). Thus, this issue is properly before us.

The meaning of an “aggrieved person” as it applies to an applicant for a zoning permit in the context of Section 3-21-8(B) has not been judicially defined. Cf. Citizens for Los Alamos, Inc. v. Incorporated County of Los Alamos, 104 N.M. 571, 725 P.2d 250 (1986) (protesting corporation that was not duly organized at time of zoning decision was not an “aggrieved person” under NMSA 1978, Section 3-21-9 (Repl. 1985), and thus lacked standing to appeal to district court pursuant to that section).

Upon condensing their arguments, we find general agreement between the parties that a zoning applicant who possesses a recognizable right or interest in the property is an aggrieved person with standing to appeal. For example, prospective purchasers under executed contracts to purchase have such standing. See, e.g., Shulman v. Zoning Bd. of Appeals, 154 Conn. 426, 226 A.2d 380 (1967); Fail v. LaPorte County Bd. of Zoning Appeals, 171 Ind.App. 192, 355 N.E.2d 455 (1976); Humble Oil & Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974). Standing also exists where the purchase contract is conditioned upon the grant of the zoning request. See, e.g., Arant v. Board of Adjustment, 271 Ala. 600, 126 So.2d 100 (1960); Babitzke v. Village of Harvester, 32 Ill.App.2d 289, 177 N.E.2d 644 (1961); Silverco, Inc. v. Zoning Bd. of Adjustment & Dep’t of Licenses & Inspection, 379 Pa. 497, 109 A.2d 147 (1954). See also Annot., 89 A.L.R.2d 663 (1963).

These views are consistent with our holding in St. Sauver v. New Mexico Peterbilt, Inc., that “[t]o be aggrieved, a party must have a personal or pecuniary interest or property right adversely affected by the judgment.” 101 N.M. at 85-86, 678 P.2d at 713-714.

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Bluebook (online)
737 P.2d 82, 105 N.M. 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-fox-nmctapp-1987.