DOWNTOWN NEIGHBORHOODS ASS'N V. CITY OF ALBUQUERQUE, 1989-NMCA-091, 109 N.M. 186, 783
P.2d 962 (Ct. App. 1989)
DOWNTOWN NEIGHBORHOODS ASSOCIATION,
Petitioner-Appellee,
vs.
CITY OF ALBUQUERQUE, Respondent-Appellant. THE WHITEHOUSE
PARTNERSHIP, Intervenor-Appellant
COURT OF APPEALS OF NEW MEXICO
1989-NMCA-091, 109 N.M. 186, 783 P.2d 962
Appeal from the District Court of
Bernalillo County, William W. Deaton, District Judge.
KARL H. SOMMER, KURT H. SOMMER, SOMMER,
UDALL & HARDWICK, P.A., Santa Fe, New Mexico, Attorneys for
Petitioner-Appellee.
JAMES H. FOLEY, City Attorney, EDWARD R.
PEARSON, Ass't City Attorney, Albuquerque, New Mexico, Attorneys for
Respondent-Appellant.
PHILIP B. DAVIS, Albuquerque, New Mexico,
CHRIS KEY, Albuquerque, New Mexico, Attorneys for Intervenor-Appellant.
{1} On appellee's motion for
rehearing, the prior opinion is withdrawn, and the following is substituted.
{2} The City of Albuquerque
(City) and The Whitehouse Partnership (Whitehouse) appeal from a district court
decision reversing the grant of a variance by the Albuquerque City Council
(City Council). Pursuant to NMSA 1978, Section
3-21-9 (Repl. 1985), the
Downtown Neighborhoods Association (DNA) petitioned the district court to
review the City Council's decision by writ of certiorari, and the district
court found the City Council's decision was not supported by substantial
evidence. This appeal requires us to consider the City Council's authority
under NMSA 1978, Section
3-21-8 (Repl. 1985), and Albuquerque, N.M. Rev.
Ordinances Section 7-14-42 C.2 (1986), to grant a variance for unnecessary
hardship to the owner of an historic building. We affirm.
FACTS AND PROCEDURAL HISTORY
{3} In 1985, Whitehouse
purchased the J.A. Garcia house, an 80-year-old, two-story home on a main
arterial street near
{*188} downtown
Albuquerque. Experts consider the house, which is listed on both the State
Register of Cultural Properties and the National Register of Historic Places,
one of the best examples of Classical Revival architecture in Albuquerque.
{4} When Whitehouse purchased
the property, the partners believed that they were entitled to use the entire
first floor of the house for law offices. However, the existing zoning in fact
limited incidental non-residential use to 10% of the gross floor space of the
premises. After being cited by the City for non-residential use in excess of
the permitted 10%, Whitehouse sought a variance from the City Zoning Hearing
Examiner (Examiner).
{5} The Examiner determined,
after a hearing, that the variance should be denied because Whitehouse failed
to make an adequate showing of practical difficulty and unnecessary hardship.
He also found that the proposed variance was not consistent with the intent and
purpose of the zoning ordinance, "in that office uses in apartment zones
are intended to be incidental to the apartment use itself."
{6} Whitehouse appealed this
decision to the Environmental Planning Commission (EPC). Subsequently, the
Zoning Enforcement Office issued a letter opinion that "incidental
use" of a house referred to a use incidental to the urban center as a
whole, rather than incidental to the use of the house itself. After a hearing,
the EPC reversed the Examiner's decision and found that the parcel was
exceptional and that compliance with the existing zoning would cause practical
difficulty and unnecessary hardship. The EPC also found that the additional
office use would not be injurious to adjacent properties, and that approval of
the variance would not "set a precedent and in no way precludes the use of
the existing zoning" at a later time.
{7} Pursuant to Section
3-21-8(B), DNA appealed the EPC decision to the City Council on the grounds
that no legal basis existed for granting a variance, that the variance was
contrary to the intent and purpose of the plan, and that the variance would be
detrimental to the neighborhood. Under the statute, the City Council is
required to provide the procedure to be followed in considering appeals.
See
§ 3-21-8(A). By ordinance, the City Council has provided for a preliminary
review either by the full City Council or by a committee of the City Council.
Albuquerque, N.M. Rev. Ordinances § 7-14-45 C. l (1987).
{8} In this case, the Land
Use Planning and Zoning Committee (LUPZ) of the City Council conducted a
hearing, at which additional evidence was taken, and recommended that the
appeal be heard by the full Council. However, after a hearing, at which more
evidence was received, the City Council denied the appeal, thereby affirming
the EPC decision to grant the variance. Those who voted to deny the appeal also
voted to adopt the following findings: (1) the house had historical
significance; (2) the historical significance of the house distinguished it
from other nearby property subject to the same regulations, and thus,
subjecting the house to the same regulations created unnecessary hardship; (3)
the variance differed from the regulation no more than was necessary to
overcome the hardship, and the requested additional incidental use was the
minimum needed to create a reasonable office area; and (4) the variance would
not interfere with the enjoyment of other land in the vicinity and would be
consistent with the spirit of the ordinance.
{9} On writ of certiorari to
the district court, the court by stipulation reviewed a record that included
all of the evidence at every level. The court found that the house was
historically significant but concluded that historical significance did not
make the house "exceptional" as required for a variance under Section
7-14-42 C.2. b. The court also found that the remaining findings were not
supported by substantial evidence. The court concluded that granting the variance
was illegal, arbitrary, and capricious.
{10} On appeal to this court,
appellants contend that there was sufficient evidence to support the City
Council's findings. We first address the scope of judicial review, and then we
discuss the ordinance.
{*189} SCOPE OF
JUDICIAL REVIEW
{11} The decision to enact an
ordinance is legislative in nature, made by an elective body under its police
powers for the protection of the health, safety, and welfare of the public. An
aggrieved property owner may challenge the constitutionality of a zoning
ordinance in court, seek to have it changed by the local legislative body, or
seek a variance from the administrative body to use property in a manner
prohibited by the literal requirements of the zoning ordinance. 6 R. Powell,
The
Law of Real Property para. 872.2 (1988). Variances are considered to be
extraordinary exceptions and are granted sparingly, only under peculiar and
exceptional circumstances.
Id.; 8 E. McQuillin,
The Law of Municipal
Corporations § 25.162 (3d ed. 1983). Their purpose, in the broadest sense,
is to render justice in unique and individual cases. McQuillin,
supra, §
25.172.
{12} Since a variance in
effect creates a new zoning regulation for an individual parcel of land,
id.,
Section 25.160, the legislative body may delegate the authority to grant a
variance only if it gives adequate guidance.
Id., § 25.165. The
authority for an administrative officer or body to grant variances is limited
by the terms of the relevant statute or ordinance.
See McClurkan v. Board of
Zoning Appeals for Metro. Gov't, 565 S.W.2d 495 (Tenn. Ct. App. 1977);
Stice
v. Gribben-Allen Motors, Inc., 216 Kan. 744, 534 P.2d 1267 (1975).
{13} In this case, the City
Council is the elective body that made the initial zoning determination. It has
delegated the authority to grant a variance to the EPC. The central question on
appeal is whether the variance that was granted in this case was authorized.
The district court decided that it was not authorized.
{14} Judicial review of a
zoning authority's decision is limited to questions of law. By statute, the
district court must determine initially whether the decision is illegal, in
whole or in part.
See § 3-21-9(A). An appellate court conducts the same
review as the district court. That determination depends upon whether the
zoning authority acted fraudulently, arbitrarily, or capriciously; whether the
decision is supported by substantial evidence; and whether the zoning authority
acted within the scope of its authority.
Singleterry v. City of Albuquerque,
96 N.M. 468,
632 P.2d 345 (1981);
Coe v. City of Albuquerque, 76 N.M.
771,
418 P.2d 545 (1966);
Rowley v. Murray, 106 N.M. 676,
748 P.2d 973
(Ct. App. 1987).
{15} It is clear from our
statute and the cases that this court, as well as the district court, must
review actions taken by a governing body such as the City Council with
deference and may disturb those decisions only as provided by law. We may not
disturb a decision if we are satisfied that the action was authorized and that
factual issues are supported by substantial evidence.
{16} In this case, we believe
the question of whether the variance was authorized depends upon a construction
of the ordinance. As we construe the ordinance, the validity of the variance
depends upon factual questions that the City Council failed to resolve.
{17} Where the decision
depends upon factual questions that the governing body failed to resolve, the
reviewing court must remand for further proceedings.
Cf. Michelson v.
Michelson, 89 N.M. 282,
551 P.2d 638 (1976) (case should be remanded when
trial court's findings of fact are insufficient to permit reviewing court to
decide case). Although this principle evolved in the context of appellate court
review of district court decisions, we think it is applicable here by analogy.
Neither we nor the district court may make the decision in the first instance.
If we are to give proper deference to the City Council, in a case where it has
failed to resolve ultimate facts, we will remand to permit the Council to reach
a decision that can be reviewed.
{18} The City Council has
broad statutory authority to grant a variance.
See § 3-21-8(C)(1). The
City Council may authorize a variance "(a) which [is] not contrary to the
public interest; (b) where, owing to special conditions, a literal enforcement
of the zoning ordinance will result in unnecessary hardship; and (c) so that
the
{*190} spirit of the zoning
ordinance is observed and substantial justice done." § 3-21-8(C)(1)(a),
(b), (c).
{19} Pursuant to that
authority, the City Council has adopted an ordinance which provides, in
pertinent part:
a. A variance shall be approved if and only if compliance
with the regular zoning provisions would cause practical difficulties and unnecessary
hardship as defined in subsection b., and if the proposed development:
(1) Differs from development which would be permitted under
the general development provisions no more than is necessary to overcome the
practical difficulties and unnecessary hardship;
(2) Will not significantly interfere with the enjoyment of
other land in the vicinity; and
(3) Is consistent with the spirit of this Ordinance,
substantial justice, and the general public interest.
b. For purposes of this section, compliance with the regular
zoning provisions would cause practical difficulties and unnecessary hardship
if:
(1) The parcel is exceptional as compared with other land in
the vicinity subject to the same regulations by reason of the physical
characteristics of the land, which physical characteristics existed at the time
of the adoption of the regulation or were created by natural forces or by
governmental action for which no compensation was paid;
(2) The parcel is exceptional as compared with other land in
the vicinity subject to the same regulations by reason of the conditions or
use of the parcel or other land in the vicinity which condition or use
existed at the time of adoption of the regulations; or
(3) The parcel is irregular, unusually narrow or shallow in
shape, and the conditions existed at the time of the adoption of the regulation
or was [sic] created by natural forces or governmental action for which no
compensation was paid.
§ 7-14-42 C.2 (emphasis added).
{20} In the construction of
ordinances, like the construction of statutes, a court must ascertain and give
effect to the intention of the enacting authority.
Burroughs v. Board of
County Comm'rs, 88 N.M. 303,
540 P.2d 233 (1975);
State ex rel.
Battershell v. City of Albuquerque, 108 N.M. 658, 777 P.2d 386 (Ct. App.
1989). The City Council's findings suggest that those who voted to deny DNA's
appeal believed that if a house has historical significance, then its owner has
shown both the special conditions and the unnecessary hardship required by the
statute. However, that interpretation is inconsistent with the concept of a
variance and the terms of the statute.
{21} The purpose of a
variance is to prevent zoning regulation from operating to deprive a property
owner of all beneficial use of his property.
Clerics of St. Viator, Inc. v.
District of Columbia Bd. of Zoning Adjustment, 320 A.2d 291 (D.C. App.
1974). To impose restrictions that unduly interfere with that right is
confiscatory, and may amount to a taking.
See id. On the other hand,
variances should be granted sparingly, only under exceptional circumstances. To
do otherwise would encourage destruction of planned zoning.
See Clouser v.
David, 309 F.2d 233 (D.C. App. 1962),
cert. denied, 372 U.S. 929, 83
S. Ct. 874, 9 L. Ed. 2d 733 (1963). The ultimate question to be answered is
whether the applicant has shown "unnecessary hardship." In answering
that question, the body considering the variance must resolve several factual
questions.
{22} The first question is
whether the parcel is distinguishable from other property that is subject to
the same zoning restrictions. The answer depends upon whether, as a result of
the differences between this parcel and others, the zoning restrictions create
particular hardship for the owner. The test is whether, because of the
differences, the owner will be deprived of a reasonable return on his or her
property under any use permitted by the existing zoning classification. 6 R.
Powell,
supra at 872.2[1][b]. If this question is answered
affirmatively, then the body considering the variance is entitled to conclude
that there are exceptional or special circumstances justifying
{*191} consideration of a variance. If not,
the applicant must seek a change in the zoning restrictions themselves. If the
body considering the variance determines that the applicant has shown
exceptional or special circumstances, then it still must consider whether the
particular variance requested is appropriate. The answer to this question
depends upon a comparison of the special circumstances shown and the public
interest. The test is whether the hardship identified can be avoided
consistently with the public interest.
Id. If this question is answered
affirmatively, then the zoning authority must conclude that the applicant is
entitled to a variance. If not, it may deny the variance.
{23} As we read the
ordinance, it establishes the same general, two-pronged inquiry. First, the
applicant must show that because of exceptional or special circumstances,
compliance with the existing zoning requirements would cause practical
difficulties and unnecessary hardship. Second, the applicant must show that the
proposed variance: (a) differs from that permitted by the existing zoning
requirements no more than is necessary to overcome the identified practical difficulties
and unnecessary hardship; (b) will not significantly interfere with enjoyment
of other land in the vicinity; and (c) is consistent with the spirit of the
ordinance, substantial justice, and general public interest. Generally
speaking, under the elements of the first criterion, the zoning authority is
determining whether the applicant has shown exceptional circumstances that
justify consideration of a variance. Under the second criterion, the zoning
authority is deter mining whether the particular variance requested is
appropriate.
{24} Under the ordinance,
exceptional or special circumstances are shown by establishing the facts to
which any one of the three subparagraphs to Section 7-14-42 C.2. b refers. Only
subparagraph (2) is applicable here.
{25} Under that subparagraph,
compliance would cause practical difficulties and unnecessary hardship if the
parcel is exceptional as compared to other land in the vicinity subject to the
same zoning requirements "by reason of the conditions or use of the parcel
or other land in the vicinity which condition or use existed at the time of
adoption of the regulations." We are not certain what the City Council
intended by the phrase "conditions or use." Thus, we are not certain
what kinds of special or exceptional circumstances the City Council intended
Section 7-14-42 C.2. b to encompass.
{26} It seems clear that
designation of a house as historically significant does not in and of itself
answer the ultimate question of unnecessary hardship.
See Sorg v. North Hero
Zoning Bd. of Adjustment, 135 Vt. 423, 378 A.2d 98 (1977). Our research has
not disclosed any cases holding an owners desire to preserve the historical
significance of a structure was sufficient to support a variance on the ground
of unnecessary hardship.
Cf. Village Bd. v. Jarrold, 53 N.Y.2d 254, 423
N.E.2d 385, 440 N.Y.S.2d 908 (1981) (use variance not granted to preserve
historic barn absent proof of unnecessary hardship).
{27} "Unnecessary
hardship" has been given special meaning by courts considering a zoning
authority's power to grant a variance. It ordinarily refers to circumstances in
which no reasonable use can otherwise be made of the land.
Stice v.
Gribben-Allen Motors, Inc. See generally Powell,
supra, para.
872.2[1]; McQuillin,
supra, § 25.160;
Kelly v. Zoning Hearing Bd.,
87 Pa. Commn. 534, 487 A.2d 1043 (1985). The exact showing necessary to prove
unnecessary hardship varies from case to case. The City Council must make the
initial determination by considering all of the relevant circumstances.
However, it is clear that a showing that the owner might receive a greater
profit if the variance is granted is not sufficient justification in itself for
a variance.
See Culinary Inst. of Am. v. Board of Zoning Appeals, 143
Conn. 257, 121 A.2d 637 (1956);
Stice v. Gribben -
Allen Motors,
Inc.; McMullen v. Zoning Hearing Bd., 90 Pa. Commw. 119, 494 A.2d 502
(1985).
{28} We recognize that
Section 7-14-42 C.2. b appears to define "unnecessary hardship"
{*192} as any situation in which one of the
conditions listed in b.1,.2, or .3 exists. That seems in fact to be the
interpretation given subsection (b) by the City Council. We do not read
subsection (b) in that manner, because that reading is not consistent with the
City's statutory authority to grant a variance. Under Section 3-21-8(C)(1), the
City cannot define "unnecessary hardship" as any situation in which
one of the conditions listed in b.1,.2, or .3 exists, because such a definition
equates "special conditions" with "unnecessary hardship."
Under Section 3-21-8(C)(1), these terms serve different functions.
{29} Under the statute, the
City may grant a variance where, owing to special conditions, a literal
enforcement of the zoning ordinance will result in "unnecessary
hardship."
See § 3-21-8(C)(1)(b). When the ordinance is read in
light of the statute, it is clear that the situations listed in subsection b
are the "special conditions" referred to in the statute, which must
be present to support a decision to grant a variance. However, the fact that a
parcel is exceptional under Section 7-14-42 C.2. b(2) is not sufficient to
support a variance without a determination that enforcement of the zoning
ordinance will result in unnecessary hardship.
{30} In the present case, the
ordinance provides that special conditions may arise either from physical
characteristics unique to the land, including irregular shape,
see §
7-14-42 C.2. b(1), (3), or from the "conditions or use of the
parcel." § 7-14-42 C.2. b(2). Because the language of the ordinance
encompasses conditions or use, the City Council was entitled to decide that
Whitehouse need not show the physical characteristics of its parcel were
unique. Nevertheless, the City Council was required to determine that the "condition"
or "use" of the house makes it "exceptional" in the sense
that application of the zoning restrictions affects this property more harshly
than other properties under the ordinance and, thus, creates a particular
hardship, depriving the owner of a reasonable return. Although the effect on
this property must be exceptionally harsh in comparison to the effect on other
properties, the parcel need not be the
only property so affected.
See
Rygg v. Kalispell Bd. of Adjustment, 169 Mont. 93, 544 P.2d 1228 (1976). In
Rygg the court recognized that the zoning agency may prefer the use of
variances over rezoning to handle unique property situations in transitional
neighborhoods, even though a few other properties may be similarly affected. It
does not appear from the record that the City Council made this determination.
{31} We conclude the City
Council applied an erroneous interpretation of the ordinance in denying the
appeal. The record indicates that the City Council and the EPC both
misinterpreted the ordinance. Because of the misinterpretation, the zoning
authority's inquiry was incomplete. Thus, the City Council failed to resolve
the ultimate question of whether Whitehouse had shown unnecessary hardship.
{32} The findings by the City
Council fail to resolve the question of whether this parcel is distinguishable
from other parcels subject to the same requirements, whether the differences
create particular hardship for Whitehouse, and whether the requested variance
is necessary to prevent undue hardship. The findings by the EPC are similar.
{33} Under provisions of the
Zoning Code dealing with the right of appeal to the City Council, the City may
decline to hear an appeal further if it is satisfied that no error exists. §
7-14-45 C. l. In this case, the appeal should have been granted. On this basis,
we affirm the district court's decision reversing and remanding the cause to
the City Council.
{34} We hold that the City
Council erred in denying appellee's appeal. On this basis, we affirm the district
court decision reversing and remanding the case to the City Council. No costs
are awarded.
BIVINS, Chief Judge, and CHAVEZ, Judge, Concur.