A. The zoning authority within its jurisdiction shall provide by ordinance for the manner in which zoning regulations, restrictions and the boundaries of districts are:
(1) determined, established and enforced; and
(2) amended, supplemented or repealed.
B. No zoning regulation, restriction or boundary shall become effective, amended, supplemented or repealed until after a public hearing at which all parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of the public hearing shall be published, at least fifteen days prior to the date of the hearing, within its respective jurisdiction. Whenever a change in zoning is proposed for an area of one block or less, notice of the public hearing shall be mailed by certified mail, return receipt requested, to the owners, as shown by the records of the county treasurer, of lots of land within the area proposed to be changed by a zoning regulation and within one hundred feet, excluding public right-of-way, of the area proposed to be changed by zoning regulation. Whenever a change in zoning is proposed for an area of more than one block, notice of the public hearing shall be mailed by first class mail to the owners, as shown by the records of the county treasurer, of lots or [of] land within the area proposed to be changed by a zoning regulation and within one hundred feet, excluding public right-of-way, of the area proposed to be changed by zoning regulation. If the notice by first class mail to the owner is returned undelivered, the zoning authority shall attempt to discover the owner's most recent address and shall remit the notice by certified mail, return receipt requested, to that address.
C. If the owners of twenty percent or more of the area of the lots and [of] land included in the area proposed to be changed by a zoning regulation or within one hundred feet, excluding public right-of-way, of the area proposed to be changed by a zoning regulation, protest in writing the proposed change in the zoning regulation, the proposed change in zoning shall not become effective unless the change is approved by a majority vote of all the members of the governing body of the municipality or by a two-thirds vote of all the members of the board of county commissioners.
History: 1953 Comp., § 14-20-4, enacted by Laws 1965, ch. 300; 1979, ch. 319, § 1; 1981, ch. 91, § 1.
ANNOTATIONSCross references. — For definition of "publish" or "publication," see 3-1-2 NMSA 1978.
Bracketed material. — The bracketed material in Subsections B and C was inserted by the compiler and is not part of the law.
1979 amendment unconstitutional. — Laws 1979, ch. 319, § 1, which purported to amend this section, is unconstitutional because it violated N.M. Const., art. IV, § 16, which requires that the subject of any act be embraced in the title of the act. City of Albuquerque v. State, 102 N.M. 38, 690 P.2d 1032 (1984).
I. GENERAL CONSIDERATION.
Zoning ordinances strictly construed. — Since zoning ordinances are in derogation of the common law, they are to be strictly construed. Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340.
Municipal legislative body is bound to follow the zoning regulations it has adopted, in the exercise of its delegated legislative power. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.
Intent of enabling statute. — Allowing the legislature to paint with a broad brush, and to leave the details to local governmental entities, is reflected in an enabling statute, which grants counties the authority to pass ordinances defining how their land use ordinances may be enforced. Cerrillos Gravel Products, Inc. v. Board of Cnty. Comm'rs of Santa Fe, 2004-NMCA-096, 136 N.M. 247, 96 P.3d 1167, cert. granted, 2004-NMCERT-008, 136 N.M. 493, 100 P.3d 198.
State law does not require that ordinance precisely track enabling statute to be authorized. Cerrillos Gravel Products, Inc. v. Board of Cnty. Comm'rs, 2004-NMCA-096, 136 N.M. 247, 96 P.3d 1167, cert. granted, 2004-NMCERT-008, 136 N.M. 493, 100 P.3d 198.
Creation of buffer zone nullifies demand for vote in Subsection C. — Petitioner, who owned 20% or more of the land within 100 feet of tract proposed to be rezoned, could no longer demand a three-fourths vote of all members of the governing body of the city, as required by Subsection C of this section, where applicant for a zoning change created a buffer zone of 100 feet between that portion of his property sought to be rezoned and the lands of adjacent property owners, including petitioner. St. Bede's Episcopal Church v. City of Santa Fe, 1973-NMSC-046, 85 N.M. 109, 509 P.2d 876.
Ordinance held not uncertain. — A city code provision prohibiting the operation of an adult theatre "within 500 feet of a residential zone" is not so uncertain that the court is unable, by use of accepted rules of construction, to determine the intent of the city council. Texas Nat'l Theatres, Inc. v. City of Albuquerque, 1982-NMSC-004, 97 N.M. 282, 639 P.2d 569.
Zoning of private land that was previously federally held. — A county may not adopt a comprehensive zoning ordinance that specifically excludes federally owned land, then later apply the ordinance to private land that was federally owned at the time the ordinance was passed; to zone such land, the county must comply with the notice requirements of this section. Bonito Land & Livestock v. Valencia Cnty. Bd. of Comm'rs, 1998-NMCA-127, 125 N.M. 638, 964 P.2d 199.
Municipal agreement to rezone illegal. — A contract in which a municipality promised to zone property in a specified manner in exchange for a party's conveyancing of property that it needed for a highway right of way was illegal because such a promise preempted the power of the zoning authority to zone the property according to prescribed legislative procedures. Dacy v. Village of Ruidoso, 1992-NMSC-066, 114 N.M. 699, 845 P.2d 793.
II. SCOPE OF AUTHORITY.
Suspension or revocation of permit. — Santa Fe County's ordinance providing for suspension or revocation of mining permit is consistent with the statutory authority granted by the legislature to pass ordinances defining how land use ordinances will be enforced. Cerrillos Gravel Products, Inc. v. Santa Fe Bd. of Cnty. Comm'rs, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.
Express authority to enact ordinances for enforcement. — Section 3-12-6 NMSA 1978 grants counties the authority to enact ordinances to provide for enforcement of zoning regulations and restrictions. Cerrillos Gravel Products, Inc. v. Santa Fe Bd. of Cnty. Comm'rs, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.
Absence of language including "revocation of any permit" in enabling statute does not require a court to hold that such authority is not authorized. Cerrillos Gravel Products, Inc. v. Board of Cnty. Comm'rs of Santa Fe, 2004-NMCA-096, 136 N.M. 247, 96 P.3d 1167, aff'd, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.
Authority of air quality control board to issue special use permits. — There can be no doubt of a county air quality control board's authority to entertain applications for special use permits, and to issue or withhold them after consideration. McCabe v. Hawk, 1982-NMCA-039, 97 N.M. 622, 642 P.2d 608.
Santa Fe County's ordinance, specifically providing for revocation or suspension of mining permit, is consonant with the legislature's grant of power to pass ordinances defining how land use ordinances may be enforced, and within the legislature's grant of authority to institute "any appropriate action or proceedings" to confront violations of land use ordinances. Cerrillos Gravel Products, Inc. v. Board of Cnty. Comm'rs of Santa Fe, 2004-NMCA-096, 136 N.M. 247, 96 P.3d 1167, aff'd, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.
III. HEARING.
Failure to comply denies procedural due process. — By failing to comply with its own published procedures, specifically by failing to give reasons for the proposed change, the environmental planning commission deprived petitioner of notice and the opportunity to prepare an adequate defense to the proposed down zoning, and this was a denial of procedural due process. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.
Conduct of hearing. — It is within a city council's authority to restrict testimony fairly on both sides in a zoning dispute, provided that each party has an opportunity to be heard in accordance with this section and any local rules. Bennett v. City Council, 1999-NMCA-015, 126 N.M. 619, 973 P.2d 871.
Presumption regarding hearing and notice. — In view of the presumption of validity attending the ordinance, and the due performance of duty by public officials, absent any proof to the contrary, it will be presumed the prepassage requirements as to public hearings and notice thereof were had and given. City of Alamogordo v. McGee, 1958-NMSC-078, 64 N.M. 253, 327 P.2d 321.
Postponement of hearing. — Where proper notice was originally provided, an announcement at the hearing of the postponement of consideration of an issue to a later date substantially complied with notice requirements because actual notice of the original hearing and, at that meeting, of the postponed-to hearing was given to affected property owners. Bennett v. City Council, 1999-NMCA-015, 126 N.M. 619, 973 P.2d 871.
New notice and hearing not required where rezoning affected lesser amount of land than originally requested. — Where proper notice was given of the requested change in zoning of a tract and of the public hearing thereon, and the rezoning change ultimately effected varied from that request only to the extent that a lesser amount of land was rezoned than was originally requested, this did not amount to a change in fundamental character as would require new notice and another hearing. St. Bede's Episcopal Church v. City of Santa Fe, 1973-NMSC-046, 85 N.M. 109, 509 P.2d 876.
IV. NOTICE.
Lack of statutory notice is generally held to be jurisdictional defect which renders the action taken by the zoning authority void. Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340.
Substantial compliance with statutory notice provisions required. — Although some courts have held that even a minor defect in notice, e.g., 19-day notice instead of 20-day, will invalidate an action taken by the zoning authority, New Mexico does not take such a strict view. Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340.
Purpose of section. — In New Mexico, substantial compliance with the statutory notice provisions would satisfy the purpose of this section, but where substantial compliance with mandatory publication requirements is not met, the action of the zoning authority is invalid. Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340.
Determination of adequate notice. — In order to meet the statutory requirement of adequate notice, it must be determined whether notice, as published, fairly apprised the average citizen reading it with the general purpose of what was contemplated. If the notice is insufficient, ambiguous, misleading or unintelligible to the average citizen, it is inadequate to fulfill the statutory purpose of informing interested persons of the hearing so that they may attend and state their views. Bogan v. Sandoval Cnty. Planning & Zoning Comm'n, 1994-NMCA-157, 119 N.M. 334, 890 P.2d 395, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995); Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340.
Actual notice constituted substantial compliance. — Where property owner within 100 feet of property to be rezoned did not receive notice of public hearing by mail, as required by this section, but had actual notice of the hearing, property owner was properly notified and this constituted substantial compliance with the statute. Hawthorne v. City of Santa Fe, 1975-NMSC-033, 88 N.M. 123, 537 P.2d 1385.
Applicability of notice provisions. — The appropriate notice for a new, comprehensive zoning ordinance that distributes its impact over an entire community is notice by publication, as set forth in 3-21-14 NMSA 1978, rather than the individualized notice set forth in this section for zoning changes directly affecting relatively small numbers of people. Miles v. Board of Cnty. Comm'rs, 1998-NMCA-118, 125 N.M. 608, 964 P.2d 169, cert. denied, 126 N.M. 107, 967 P.2d 447.
Law reviews. — For article, "Existing Legislation and Proposed Model Flood Plain Ordinance for New Mexico Municipalities," see 9 Nat. Resources J. 629 (1969).
For comment, "Statutory Notice in Zoning Actions: Nesbit v. City of Albuquerque," see 10 N.M.L. Rev. 177 (1979-80).
For annual survey of New Mexico law relating to property, see 13 N.M.L. Rev. 435 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity and construction of statutory notice requirements prerequisite to adoption or amendment of zoning ordinance or regulation, 96 A.L.R.2d 449.
Disqualification for bias or interest of administrative officer sitting in zoning proceeding, 10 A.L.R.3d 694.
Enforcement of zoning regulation as affected by other violations, 4 A.L.R.4th 462.
Zoning: validity and construction of provisions of zoning statute or ordinance regarding protest by neighboring property owners, 7 A.L.R.4th 732.