{ "id": 2767977, "name": "C. E. HOPPER, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS et al., Defendants-Appellees", "name_abbreviation": "Hopper v. Board of County Commissioners", "decision_date": "1973-01-05", "docket_number": "No. 999", "first_page": "604", "last_page": "609", "citations": [ { "type": "official", "cite": "84 N.M. 604" }, { "type": "parallel", "cite": "506 P.2d 348" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "53 N.M. 150", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580721 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/53/0150-01" ] }, { "cite": "64 N.M. 253", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344848 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0253-01" ] }, { "cite": "168 Neb. 23", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4782691 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/neb/168/0023-01" ] }, { "cite": "16 P. 395", "category": "reporters:state_regional", "reporter": "P.", "year": 1888, "opinion_index": 0 }, { "cite": "74 Cal. 578", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 4380635 ], "year": 1888, "opinion_index": 0, "case_paths": [ "/cal/74/0578-01" ] }, { "cite": "144 A.2d 818", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "opinion_index": 0 }, { "cite": "21 Conn.Sup. 78", "category": "reporters:state", "reporter": "Conn. Super. Ct.", "year": 1958, "opinion_index": 0 }, { "cite": "86 Ariz. 379", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 644024 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/ariz/86/0379-01" ] }, { "cite": "79 N.M. 748", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746532 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/79/0748-01" ] }, { "cite": "79 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738241 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0697-01" ] }, { "cite": "79 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736389 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0410-01" ] }, { "cite": "79 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738630 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0241-01" ] }, { "cite": "79 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2736841 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0092-01" ] }, { "cite": "76 N.M. 757", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504888 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0757-01" ] }, { "cite": "76 N.M. 771", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504942 ], "weight": 2, "year": 1966, "opinion_index": 1, "case_paths": [ "/nm/76/0771-01" ] } ], "analysis": { "cardinality": 694, "char_count": 16455, "ocr_confidence": 0.696, "pagerank": { "raw": 2.6692064114185367e-07, "percentile": 0.8256365525557667 }, "sha256": "4be62283d8c8d9b33d22a98cfa0d3a3837e60ecb72de50d7b59e2cfec62b375e", "simhash": "1:96fb9a04a1ec9964", "word_count": 2643 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, J., concurs.", "SUTIN, J., dissented and filed opinion." ], "parties": [ "C. E. HOPPER, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS et al., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis appeal concerns the validity of Bernalillo County\u2019s zoning ordinance.\nPlaintiff owns property subject to the ordinance. lie unsuccessfully sought a zoning change before the zoning commission and the county commission. He then brought district court proceedings, see \u00a7 14-20-7, N.M.S.A.1953 (Repl.Vol. 3). From an adverse decision in district court, plaintiff appeals. The question of validity is resolved by deciding: (1) the statute which applies to Bernalillo County and (2) the effect of the county failing to follow statutory directions.\nApplicable statute.\nSections 14-20-1 through 14-20-12, N. M.S.A.1953 (Repl.Vol. 3) pertain to zoning authority of counties and municipalities. Section 14-20-12, supra, deals specifically with county zoning ordinances. The trial court found that, in adopting a zoning ordinance in 1968, Bernalillo County failed to follow \u00a7 14-20-12, supra, in several particulars. Because of this noncompliance, plaintiff contends the ordinance is invalid.\nBernalillo County asserts it is not subject to the provisions of \u00a7 14-20-12, supra. It contends its authority to adopt zoning ordinances is \u00a7 15-36-26, N.M.S.A.1953 (Repl.Vol. 3) and that the statutory procedure to be followed by Bernalillo County in adopting a zoning ordinance is that of \u00a7 15-36-34, N.M.S.A.1953 (Repl.Vol. 3). It claims it substantially complied with \u00a7 15\u2014 36-34, supra.\nA review of legislative history aids in understanding Bernalillo County\u2019s position. Municipalities were given authority to adopt zoning regulations by Laws 1927, ch. 27, \u00a7 1, and the procedure for such adoption was stated in Laws 1927, ch. 27, \u00a7 4. These enactments were compiled as \u00a7\u00a7 14\u2014 28-9 and 14-28-12, N.M.S.A.1953 (Orig. Vol. 3). In 1959, these sections were amended to include counties. Laws 1959, ch. 271, \u00a7\u00a7 1 and 4.\nLaws 1961, ch. 21, \u00a7 1 enacted \u00a7 15-36-26, supra. This section states: \u201cClass A counties are granted the same powers to enact ordinances that arc granted to municipalities. . . . \u201d We accept defendant\u2019s contention that it is a class A county. The procedural requirements of \u00a7 15 \u2014 36\u2014 34, supra, were also enacted in 1961. See Laws 1961, ch. 21, \u00a7 9. Bernalillo County asserts the result of the legislative action in 1961 \u201c . . . was to separate Bernalillo County from the general body of counties, in terms of ordinance-making powers, and give Bernalillo County broader authority to promulgate and pass ordinances.\nWe agree that \u00a7 15-36-26, supra, is a general grant of ordinance adopting authority. If \u00a7 15-36-26, supra, is Bernalillo County\u2019s enabling authority, then the procedural requirements of \u00a7 15-36-34, supra, apply. We assume (but do not decide) that if there had been no specific legislative authority to counties to adopt zoning ordinances, Bernalillo County could have adopted a zoning ordinance under \u00a7\u00a7 15-36-26 and 15-36-34, supra. But that is not the situation here. In 1961 there existed specific legislation authorizing counties to adopt zoning regulations. That specific authority, previously referred to, was Laws 1959, ch. 271, \u00a7 1, and the procedure was that of Laws 1959, ch. 271, \u00a7 4.\nSection 15-36-26, supra, has not been changed since 1961. The authority of counties to adopt zoning regulations (Laws 1959, ch. 271, \u00a7 1) has been the subject of subsequent legislation. Laws 1963, ch. 211, \u00a7 1 authorized counties to adopt ordinances to enforce their zoning regulations \u201cthe same as a municipality.\u201d Laws 1963, ch. 211, \u00a7 2 imposed specific requirements on counties in adopting such ordinances.\nThe various specific statutory provisions concerning county zoning were replaced by the enactment of the Municipal Code in 1965. See Laws 1965, ch. 300. This 1965 law declared counties to be zoning districts. Section 14-20-1, supra. It authorized counties to adopt ordinances to carry out their zoning authority \u201cthe same as a municipality.\u201d Section 14-20-11, supra. It imposed specific requirements on counties in adopting such ordinances. Section 14-20-12, supra.\nWe do not consider the fact that the provisions of \u00a7\u00a7 14-20-1, 14-20-11 and 14 \u2014 20-12, supra, are the last legislative provisions on the subject of county zoning ordinances. What we do consider is which of the legislative enactments is specific, rather than general, in its authority.\nSection .15-36-26, supra, gives Bernalillo County the same power to adopt ordinances as is granted to municipalities. This grant is general, not being limited by subject matter. However, \u00a7 14 \u2014 20-11, supra, is concerned specifically with zoning ordinances; it gives authority to counties to adopt zoning ordinances \u201cthe same as a municipality.\u201d Thus, there is a specific legislative provision concerning county authority to adopt zoning ordinances.\nAs to the procedures involved, \u00a7 15 \u2014 36\u2014 34, supra, states the procedure to be followed in adopting ordinances pursuant to the general authority of \u00a7 15-36-26, supra. However, \u00a7 14-20-12, supra, sets forth specific procedural requirements applicable to counties in adopting zoning ordinances.\nHere, we have conflicting general and specific statutory provisions which can be applied to Bernalillo County\u2019s adoption of a zoning ordinance. Where such a conflict exists, the specific statute is given effect because it is considered an exception or qualification of the general statute. State v. Thomson, 79 N.M. 748, 449 P.2d 656 (1969) and cases therein cited. Accordingly, the applicable statute is \u00a7 14-20-12, supra.\nFailure to follow statutory \u25a0 directions. Section 14-20-12, supra, states:\n\u201cAdoption of county zoning ordinances. \u2014 A. Ordinances authorized under section 14-20-11 New Mexico Statutes Annotated, 1953 Compilation, may be proposed by any member of the board of county commissioners but shall not be submitted to the board for final passage until after publication.\n\u201cB. A majority of the board members may order publication of a proposed ordinance in a newspaper of general circulation in the county at least once a week for two [2] consecutive weeks prior to the date of the meeting of the board at which the ordinance is to be submitted for final passage. The date of the meeting shall be included in the published notice. The style and form of the ordinance shall be determined by the board.\n\u201cC. A proposed ordinance shall be passed only by a majority vote of all the members of the board of county commissioners, and an existing ordinance shall be repealed by the same vote.\n\u201cD. The original copy of the ordinance together with the proof of publication and supporting maps shall- be filed in a book kept for that purpose and authenticated by the signature of the county clerk. The county clerk shall keep the book together with supporting maps in his office. The text of the ordinance shall be published in a newspaper of general circulation in the county once each week for two [2] consecutive weeks, the last date of publication being not less than fifteen [15] nor more than thirty [30] days prior to the effective date of the ordinance. No ordinance shall take effect until at least fifteen\ndays after the last date of publication. It is a sufficient defense to any prosecution for violation of an ordinance to show that no publication was made.\n\u201cE. Whenever the book of ordinances is introduced as evidence, the Rules of Civil Procedure shall govern.\u201d\nSections 14-20-12(A) and (B), supra, provide for publication of a proposed ordinance. The trial court found there had been no publication, but ruled this publication provision was \u201cdirectory only.\u201d\nAfter adoption of the ordinance, \u00a7 14-20-12 (D), supra, provides for publication of the \u201ctext of the ordinance.\u201d The trial court found that the entire text of the ordinance was not published; that there was publication of only the first two sections. If the ordinance introduced into evidence is the ordinance adopted in 1968, there are 22 sections in the ordinance.\nProvisions respecting the publication of ordinances are mandatory and failure to publish substantially in the manner prescribed by the Legislature has the result that the ordinance was never validly adopted. 5 McQuillin, Municipal Corporations \u00a7 16.78 (3rd Ed. 1969 Rev.Vol.); 1 Anderson, American Law of Zoning \u00a7 4.13 (1968); Hart v. Bayless Investment & Trading Company, 86 Ariz. 379, 346 P.2d 1101 (1959); Gendron v. Borough of Naugatuck, 21 Conn.Sup. 78, 144 A.2d 818 (1958); People v. Russell, 74 Cal. 578, 16 P. 395 (1888). See also Board of County Com\u2019rs of Sarpy County v. McNally, 168 Neb. 23, 95 N.W.2d 153 (1959) and cases therein cited.\nIn this case, Bernalillo County failed to adopt a valid zoning ordinance because it did not publish a proposed ordinance as required by \u00a7\u00a7 14-20-12 (A) and (B), supra, and did not publish the text of the ordinance as required by \u00a7 14-20-12(D), supra.\nBernalillo County asserts its noncompliance with legislative directions should have no effect because of another finding of the trial court. The finding is: \u201cNotwithstanding the lack of strict compliance with section 14-20-12 N.M.S.A.1953 Comp., it was not shown that plaintiff was prejudiced thereby. . . .\u201d The answer is that where mandatory publication requirements are involved, \u201cprejudice\u201d is relevant only on the question of \u201csubstantial compliance.\u201d 1 Anderson, American Law of Zoning \u00a7 4.07 (1968).\nHere, there is no issue of substantial compliance with the requirements of \u00a7 14 \u2014 20-12, supra. The trial court did not so find, nor could it have properly done so when there was no publication as provided by \u00a7\u00a7 14-20-12(A) and (B), supra. Bernalillo County does not contend that it substantially complied with \u00a7 14-20-12, supra; its claim of substantial compliance is directed to \u00a7 15-36-34, supra. Section 15-36-34, supra, docs not provide for publication prior to adoption of the ordinance and does not require publication of the text of the ordinance after being adopted. Compliance with \u00a7 15-36-34, supra, would not be substantial compliance with the publication requirements of \u00a7 14 \u2014 20-12, supra. Thus, the \u201csubstantial compliance\u201d decisions are not applicable. See City of Alamogordo v. McGee, 64 N.M. 253, 327 P.2d 321 (1958); Hughes v. City of Carlsbad, 53 N.M. 150, 203 P.2d 995 (1949).\nThere being no substantial compliance with the mandatory publication requirements, prejudice to plaintiff is not a relevant consideration in determining the validity of the ordinance.\nBecause of Bernalillo County\u2019s failure to substantially comply with the publication requirements of \u00a7 14-20-12, supra, its zoning ordinance has never been validly adopted. With this result, we need not consider additional findings concerning the filing and lack of authentication of the zoning maps. See \u00a7 14-20-12(D), supra.\nThe judgment is reversed; the cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nHENDLEY, J., concurs.\nSUTIN, J., dissented and filed opinion.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nFirst, this court does not have appellate jurisdiction of an appeal from a judgment of the district court which determines the validity of a zoning ordinance. Section 16-7-8, N.M.S.A.1953 (Repl. Vol. 4). However, if this court determines it has jurisdiction in a case filed in this court and proceeds to decide the matter, that determination of jurisdiction is final. Section 16-7-10, N.M.S.A.1953 (Repl. Vol. 4).\nThe transcript of the record states, \u201cIn the Supreme Court of the State of New Mexico.\u201d It was inadvertently filed in the office of the Clerk of the Court of Appeals.\nIn my opinion, this case should be transferred to the Supreme Court. The Court of Appeals, constantly, has over 100 cases pending on appeal, and we should not voluntarily assume an additional burden.\nThe Comprehensive Zoning Ordinance adopted in 1968 is 52 pages in length. The cost of publication of the entire ordinance before and after its passage would be burdensome. Its value to the public in this form would be questionable.\nSection 14-20-12(B), N.M.S.A.1953 (Repl. Vol. 3) should be amended to allow the board of county commissioners to publish a summary, not the full text, of the ordinance prior to the date of the meeting of the board with the date of the meeting stated in the notice. The members of the public interested in the Comprehensive Zoning Ordinance would have sufficient time to procure and study it. They would have the privilege of attendance at the meeting held for final passage.\nSection 14-20-12(D), N.M.S.A.1953 (Repl. Vol. 3) should be amended to allow publication of a summary of the ordinance before it takes effect.\nSecond, the publication question was not an issue in this case.\nThe record shows that plaintiff made application for a change of zoning of two lots from residence to commercial. He wanted the change to expand his commercial activities in order to erect buildings to he rented to small retailers and service agencies. The lots were then used for residence, a warehouse and shop. This commercial use was allowed by the zoning ordinance to continue for an additional 60 years after November, 1968. Four members of the public objected to the application for change.\nOn August 9, 1971, the application was denied by the Planning Department.\nAn appeal was taken to the Board of County Commissioners. On September 9, 1971, the application was again denied.\nOn October 5, 1971, plaintiff, pursuant to \u00a7 14-20-7, N.M.S.A.1953 (Repl. Vol. 3), appealed to the district court of Bernalillo County. His petition alleged, in part, that the zoning ordinance was invalid because no supporting maps were filed with the ordinance as required by \u00a7 14 \u2014 20-12 (D), supra, and he sought damages based upon negligence.\nPlaintiff\u2019s petition did not request the trial court to allow a writ of certiorari as required by statute, and none was issued.\nDefendants filed a \u201cReply\u201d to plaintiffs petition. In their answer, defendants did not make a return of the original papers acted on nor certified or sworn copies thereof, nor such further pertinent or material facts necessary to show the grounds of the decision as provided by statute.\nA trial was held, testimony taken, findings of fact and conclusions of law made by the trial court, and judgment entered that plaintiff\u2019s petition be dismissed with prejudice.\nThe Supreme Court has already held, (1) that a writ of certiorari must be issued and complied with; (2) the trial court does not have jurisdiction to consider new evidence; (3) the trial court is bound by the record of the prior administrative proceedings ; (4) the questions to be answered by the trial court are questions of law and are restricted to whether the defendants acted fraudulently, arbitrarily or capriciously; (5) whether the defendants\u2019 order was supported by substantial evidence ; and (6) whether the action of the defendants was within the scope of its authority. The district court may not substitute its judgment for that of the board. Coe v. City of Albuquerque, 76 N.M. 771, 418 P.2d 545 (1966); Peace Foundation, Inc. v. City of Albuquerque, 76 N.M. 757, 418 P.2d 535 (1966); Coe v. City of Albuquerque, 79 N.M. 92, 440 P.2d 130 (1968); Peace Foundation, Inc. v. City of Albuquerque, 79 N.M. 241, 442 P.2d 199 (1968). Section 14-28-16, N.M.S.A.1953 (Orig. Vol. 3), since repealed, is the same as \u00a7 14-20-7, supra.\nNo question was raised by plaintiff whether defendants\u2019 action was arbitrary. No such finding or conclusion by the trial court was made. The record contains no evidence of arbitrariness. Even though plaintiff\u2019s petition stated it was an appeal from the decision made by the defendants, the trial court used it as a civil claim for damages as well as the invalidity of the ordinance.\nThe rule is well established that where the trial court correctly dismissed the plaintiff\u2019s petition but for the wrong reasons, the judgment should be affirmed. Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 (Ct.App.1968). In fact, the decision of the trial court will be upheld if it is right for any reason. Scott v. Murphy Corporation, 79 N.M. 697, 448 P.2d 803 (1968).\nThe decision of the trial court should be affirmed.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Cameron R. Graham, Albuquerque, for plaintiff-appellant.", "James L. Brandenburg, Dist. Atty., Vance Mauney, Special Asst. Dist. Atty., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "506 P.2d 348\nC. E. HOPPER, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS et al., Defendants-Appellees.\nNo. 999.\nCourt of Appeals of New Mexico.\nJan. 5, 1973.\nCertiorari Denied Feb. 6, 1973.\nCameron R. Graham, Albuquerque, for plaintiff-appellant.\nJames L. Brandenburg, Dist. Atty., Vance Mauney, Special Asst. Dist. Atty., Albuquerque, for defendants-appellees." }, "file_name": "0604-01", "first_page_order": 760, "last_page_order": 765 }