CGP--Court of Appeals Order Upholds County Suspension, May 2004

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

[Below are a few excerpts from the Order]

Filing Date: May 25, 2004
Docket Nos. 23,630 & 23,634

CERRILLOS GRAVEL PRODUCTS, INC.,
BRAD AITKEN,
Plaintiffs-Appellees,

vs.

BOARD OF COUNTY COMMISSIONERS
OF SANTA FE COUNTY,

Defendant-Appellant,

And

RURAL CONSERVATION ALLIANCE,

Intervenor-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Margaret Kegel, District Judge

-------

Joseph Mangess
Comeau, Maldegen, Templeman &
Indall, LLP
Santa Fe, NM

for Plaintiffs-Appellees

Monica Ontiveros
County of Santa Fe
Santa Fe, NM

Mark A. Basham
Basham & Basham, P.C.
Santa Fe, NM

for Defendant-Appellee

Mary E. Humphrey
El Prado, NM

for Intervenor-Appellant

-------

OPINION

ALARID, Judge.

{1}     In this case, we consider whether the Santa Fe County Board of County Commissioners (Board or the County) had the authority to suspend or revoke a mining permit it issued to Cerrillos Gravel Products, Inc. (Cerrillos Gravel). The district court ruled that the County had no authority to suspend or revoke a permit, and that any action to do so had to be filed in district court. The County appealed. We hold that, under the circumstances here, the County had the authority to suspend the mining permit, and reverse and remand to the district court.

BACKGROUND

{2}      The record reflects that the mining company and the County have been at odds for many years. In any event, they agree that negotiations led to a 1996 settlement under which Cerrillos Gravel received a mining permit, on July 10, 1997, with twenty-four conditions. Cerrillos Gravel complied with some conditions, but, according to the County, failed to comply with others. In January 2000, the County issued a stop work order and notified Cerrillos Gravel that its permit had been revoked. The matter was set for hearing before the Board. Before the Board could meet, the parties once again engaged in negotiations designed to allow Cerrillos Gravel to continue its operations in a way that was acceptable to the County. These negotiations resulted in a memorandum of understanding. However, when the memorandum of understanding was presented to the Board, it changed some of the provisions. Cerrillos Gravel appeared without its attorney, but a representative of the company said he thought the company would accept the changes. Cerrillos Gravel ultimately did not accept the changes, and the Board suspended the permit until certain conditions were met.

{3}      Cerrillos Gravel filed an appeal in district court pursuant to Rule 1-074 NMRA 2004. During that appeal, Cerrillos Gravel persuaded the district court that the Board's suspension of its permit was invalid because the Board did not have authority to do so. The County and the Intervenor filed petitions for certiorari, which we granted.

DISCUSSION

          A. Standard of Review

{4}      Because this appeal involves statutory construction, our review is de novo. [clip]

          B. County Zoning Authority
               1. Statutes

[clip]

{9}      . . . Cerrillos Gravel relies heavily on ... two statutes to support its position that district court is the only permissible venue, arguing that these statutes are more specific.

{10}      When multiple statutes cover the same subject matter we attempt to harmonize them if possible. ... The two statutes on which Cerrillos Gravel relies both provide that violations of ordinances "may be enforced by prosecution" in "court." ... We believe the Legislature's use of the word "may" is carefully chosen to express the intention that a quasi-criminal prosecution, with attendant criminal fines and imprisonment, is one option available to a county, in addition to other remedies. ....

{11}      But we disagree that Sections 4-37-3 and 3-21-13 provide the only remedy. It would be unreasonable to conclude that a county, faced with illegal land use, including violations that might endanger the health and safety of the public, would be limited solely to seeking criminal prosecution in court with a limitation of a nominal fine ($300), or ninety days imprisonment, or both. Such a limitation would allow the illegal use to continue, even at risk to the health and safety of the public. We have not recognized such a strict limitation on the remedy, and have recognized that, in addition to criminal prosecution, a county has the option to pursue an injunction, or file an abatement action, in district court. ....

          2. Ordinances

{13}      ...[T]he Land Development Code (the Code), Santa Fe County, N.M., Ordinance 1996-10 (1996), specifically allows for revocation of a mining permit. Section 1. 11 (A) of the Code provides that failure to comply with the Code shall subject an mining operation to penalties, and expressly states that "[p]enalties may also 'include suspension or revocation of the ... mining land use permit." It further provides that "[t]he penalties in this paragraph will be imposed only after a hearing before the board." ...

{15}      ...[W]e are not persuaded that the absence of language including "revocation of any permit" in the enabling statutes requires us to hold that such authority is not authorized. Our law does not require that an ordinance precisely track the enabling statute, to be authorized. ... The Legislature often enacts laws with a broad sweep, and cannot be fairly expected to expressly address every eventuality.

{20}      Although the Code requires existing mining uses to comply with fewer requirements than those applicable to a new mine, an existing mining use is still subject to Code requirements. See the Code § 1. 10. Even assuming that Cerrillos Gravel's operation is an "existing mining use," we reject its argument that the Code's penalty provision would not apply to it. Even if it were excused from some "requirements" applicable to new mines, "penalties" are not "'requirements." Under Cerrillos Gravel's view, the Code imposes requirements on "existing mining uses," but the penalty provision would not apply if the operator did not comply with those requirements. We see nothing in the Code that would prohibit the application of penalties to an operator, including an operator of an "existing mining use," who failed to comply with the applicable requirements. Rather, the Code's plain language provides that "[f]ailure to comply" with the Code shall subject the mining operator to penalties, and the penalty section contains no language suggesting that it applies only to new mines. See the Code, § 1. 11 (A). We conclude that Cerrillos Gravel's interpretation of the Code is unsupported by the language in the ordinance and is unreasonable. See Burroughs, 88 N.M. at 306, 540 P.2d at 236 (stating that we follow the plain language of an ordinance, and will not read language into it if it makes sense as written).

{21}      For all of these reasons, we conclude that Santa Fe County's ordinance
specifically providing for revocation or suspension of a mining permit, and suspension of the permit, are consonant with the Legislature's grant of power to pass ordinances defining how land use ordinances may be enforced, see § 3-21-6, and within the Legislature's grant of authority to institute "any appropriate action or proceedings" to confront violations of land use ordinances. §3-21-IO(B). Consequently, the County had the authority to enforce its ordinance administratively and suspend Cerrillos Gravel's mining permit.

{22}      Once a permit is suspended or revoked, it may be the case that the zoning authority must invoke the power of the district court, by seeking an injunction or by filing an abatement action, against an entity that continues to conduct activities under a suspended or revoked permit. A quasi-criminal proceeding under Section 3-21-13 is another available option. But, we disagree with Cerrillos Gravel's argument that the County had no authority to administratively suspend the Mining permit it granted.

          C. Vested Rights

{23}      Cerrillos Gravel argues that, having obtained a permit, and having expended substantial sums of money developing its mine, it has a "vested right" to continue mining., that cannot be subsequently withheld, extinguished, or modified. ... If the "vested right" doctrine were as broad as Cerrillos Gravel contends, any entity with a permit from the government could expend money, and then operate in any fashion it chose, and be immunized from governmental attempts to revoke permission or force compliance with permit conditions and the law, including laws designed to protect public health, welfare, and safety. That view cannot be sustained. We reject the argument that Cerrillos Gravel has a "vested night" to continue to operate without complying with legitimate conditions imposed by the County.

          D. Other Issues

{24}      Finally, Cerrillos Gravel offers us several other reasons why we should affirm. It argues that suspension of the permit was not accompanied by due process, and was not supported by the evidence. We do not address these issues because they were not reached by the district court. Once the district court ruled that the County had no authority to revoke the permit, the court did not reach any of the other issues raised in the case. Because the district court considered the case as an appellate court, under Rule 1-074, we believe it is appropriate to remand this case for the district court to consider the other issues in the first instance. ...

{25}      For these reasons, we reverse the decision of the district court, and remand for further proceedings.

{26}      IT IS SO ORDERED.

A. JOSEPH ALARID, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge

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