Posted by: Patricia Salkin | February 24, 2008

New Mexico Supreme Court Says Text Amendment Was Quasi-Judicial Requiring Due Process

On Monday, the New Mexico Supreme Court issued a lengthy decision in the long waited Albuquerque Commons Partnership v. City of Albuquerque case.

The facts are long, going back more than ten years.  In short, the developer (ACP) wanted to build a big box retail center in the uptown sector area. There was a disconnect between the city’s plan for the area which called for higher density, mixed use, transit-friendly development——and the city’s development regulation for the area which allowed low-density big box retail.” To remedy this disconnect, the city adopted a moratorium and revised its development regulations concomitant with ACP’s application for a big box retail center. The city followed a legislative process when it approved the text amendment to the zoning regulations, not a quasi-judicial process which affords the applicant the right to cross-examine witnesses, etc.
Ultimately, the city denied ACP’s application and ACP sued.  ACP argued that the city violated the applicant’s right to due process and the trial court agreed, awarding ACP more than $8 million in damages.
The NM Court of Appeals reversed, concluding the text amendment was not a quasi-judicial action, but a legislative action and there was no due process violation. The Supreme Court concluded that because this text amendment affected only a small area and only a few property owners, it was a quasi-judicial action which required the city to provide due process.
New Mexico follows the “change or mistake” rule in rezonings. Maryland may be the only other state that follows this archaic rule. Years ago, the City of Albuquerque adopted Reso. 270-1980 which embodies the “change or mistake” rule. A rezoning requires demonstration of an error when the original zoning map was created, or a changed neighborhood or community conditions. The City added a third criteria when it adopted Reso. 270-1980 — a rezoning may be justified if a different use category is more advantageous to the community, as articulated in the Comprehensive Plan or other City master plan, even though there has been no change or mistake.
In the ACP decision, the NM Supreme Court said “a municipality may be able to justify an amendment that downzones a particular property by demonstrating that the change is more advantageous to the community, as articulated in the Comprehensive Plan or other City master plan.”
This language suggests that if a community adopts the consistency doctrine and specifies that a rezoning will adhere to the consistency doctrine, the court will affirm.
The opinion can be accessed at:
The American Planning Association filed an amicus brief that can be accessed at:  

Special thanks to Lora Lucero, Esq. of New Mexico for this summary.

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