ZUNI INDIAN TRIBE, Plaintiff-Appellant, v. MCKINLEY COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant-Appellee, and TAMPICO SPRINGS RANCH 3000, LLC, Intervenor-Appellee.
Docket No. 31,496
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
January 24, 2013
2013-NMCA-041
Robert A. Aragon, District Judge
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Samuel D. Gollis
Albuquerque, NM
Jane Marx, Attorney at Law, P.C.
Jane Marx
Albuquerque, NM
for Appellant
Mason & Issacson, P.A.
James Jay Mason
Gallup, NM
for Appellee
OPINION
VANZI, Judge.
{1} The New Mexico Subdivision Act (the Act),
{2} We hold that a party adversely affected by a county‘s decision on a preliminary plat application can appeal the decision to the district court and that this appeal, if timely filed, is not rendered moot by the county‘s decision to approve the final subdivision plat application during the pendency of the appeal. Accordingly, we reverse the district court‘s ruling to the contrary and remand for the district court to consider the merits.
BACKGROUND
{3} On January 8, 2008, the McKinley County Board of County Commissioners (the County) approved a preliminary plat application submitted by Tampico Springs Ranch 3000, LLC (Tampico) for a proposed 490-home phased subdivision development. On February 7, 2008, the Zuni Tribe (the Tribe) appealed the County‘s approval of the preliminary plat application to the district court. Tampico filed a motion to intervene in the case, which the district court granted.
{4} Shortly thereafter, the Tribe filed a motion to stay enforcement of the County‘s decision approving the preliminary plat application to prevent Tampico from proceeding further in the subdivision development process during the pendency of the Tribe‘s appeal. See Rule 1-074(Q) NMRA (permitting the district court to stay enforcement of the agency decision under review). The district court denied the Tribe‘s motion, and the County then proceeded to approve Tampico‘s final plat application.
{5} Subsequently, Tampico filed a motion to dismiss the Tribe‘s appeal on two grounds, arguing that: (1) the district court lacked jurisdiction because the County‘s decision on the preliminary plat application was not a final, appealable order; and (2) the Tribe‘s appeal from the preliminary plat approval was rendered moot by the County‘s approval of Tampico‘s final plat application during the pendency of the appeal. The district court granted Tampico‘s motion, finding that the Tribe‘s appeal “puts forth a moot question and the action complained of does not constitute a final decision.” We granted the Tribe‘s petition for writ of certiorari to review the district court‘s ruling.
STANDARD OF REVIEW
{6} The parties agree that this case presents pure questions of law, which we review de novo. See Santa Fe Pac. Trust, Inc. v. City of Albuquerque, 2012-NMSC-028, ¶ 10, 285 P.3d 595 (“Finality is a question of law we review de novo.“); Baber v. Desert Sun Motors, 2007-NMCA-098, ¶ 9, 142 N.M. 319, 164 P.3d 1018 (providing that “[w]hether a lower court properly dismissed a case as moot presents a question of law, which we review de novo“). To the extent that this appeal requires this Court to interpret provisions of the Act, we also engage in de novo review. Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69 (providing that “[s]tatutory interpretation is a question of law, which we review de novo“).
A. Finality
{7} The first issue we address on appeal is whether the County‘s approval of a preliminary plat application is a final, appealable order within the meaning of
A party who is or may be adversely affected by a decision of the board of county commissioners may appeal to the district court pursuant to the provisions of
Section 39-3-1.1 .
(Emphasis added.) The Act does not define the term “decision” in
{8} In interpreting
{9} “The primary indicator of legislative intent is the plain language of the statute.” State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863. When a term is not defined in a statute, we must construe it, giving words “their ordinary meaning absent clear and express legislative intention to the contrary.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). Although the term “decision” is not defined in the Act, it is ordinarily defined as “[a] judicial or agency determination after consideration of the facts and the law[.]” See Black‘s Law Dictionary 467 (9th ed. 2009); see also Armijo v. Armijo, 77 N.M. 742, 744, 427 P.2d 258, 259 (1967) (defining “decision” as “a determination arrived at after consideration, an opinion formed, or a course of action decided upon“). As the Tribe points out, the review and approval process for preliminary plats set forth in the Act requires a formal review process by a board of county commissioners or its delegate. See
{10} In this case, the County‘s approval of Tampico‘s preliminary plat application was consistent with the foregoing statutory scheme. The approval was issued by the Board in the form of a written resolution with incorporated final findings and recommendations submitted by the County‘s Smart Growth Commission. This resolution followed written input from state agencies and other interested parties, including the Tribe, as well as a series of public hearings before the Smart Growth Commission regarding Tampico‘s preliminary plat application. Tampico and the Tribe submitted proposed findings and recommendations following the hearings. The final findings and recommendations adopted in the resolution included consideration of several important aspects of the subdivision development and review process, such as water availability, liquid and solid waste disposal, and access. Given the nature of the written resolution and the procedural history that preceded its passage, we agree with the Tribe‘s argument that the resolution constitutes a “decision” under
{11} In addition, the statutory history of
{12} In 1995, the Legislature amended the Act substantially by separating the plat approval process into two distinct steps: the preliminary plat review process and the final plat review process. Specifically, the Legislature removed the broad definition of “plat” in the Act and in its place inserted definitions for preliminary and final plats. See
{13}
Any party who is or may be adversely affected by a decision of the board of county commissioners or its delegate in approving or disapproving a subdivision plat may appeal to the district court.
(Emphasis added.) Consistent with the changes made to other provisions of the Act in 1995, the Legislature amended this provision by replacing the language “a subdivision plat” with “preliminary or final plat.” 1995
{14} The Tribe contends on appeal that the removal of the “preliminary or final plat” language from
{15} We reject Tampico‘s argument that the removal of the “preliminary or final plat” language from
{16} Tampico also appears to argue that the approval or disapproval of a preliminary plat application does not constitute a “final decision” for purposes of
{17} The gist of Tampico‘s argument appears to be that a decision on a preliminary plat application is non-final because it does not dispose of all issues of law to the fullest extent possible. We are likewise not persuaded by this argument. Tampico offers no explanation as to why the County‘s decision to approve Tampico‘s preliminary plat application did not dispose of all issues of law to the fullest extent possible. Although Tampico‘s answer brief noted a number of conditions placed by the County on Tampico in the resolution approving the preliminary plat, Tampico failed to argue that these conditions somehow rendered the resolution non-final for purposes of
{18} Drawing on the plain language of
B. Mootness
{19} We next address the district court‘s determination that the Tribe‘s appeal from the preliminary plat approval “puts forth a moot question.” Although the district court‘s order did not state the underlying rationale for this decision, it appears that the district court was persuaded by Tampico‘s argument below that the Tribe‘s appeal was rendered moot due to the County‘s approval of Tampico‘s final plat application during the pendency of the Tribe‘s appeal. We therefore address whether a timely filed appeal from a decision on a preliminary plat application is rendered moot because a board of county commissioners proceeded to approve the final plat application during the pendency of the preliminary plat appeal.
{20} “As a general rule, this Court does not decide moot cases. When no actual controversy exists for which a ruling by the court will grant relief, an appeal is moot and ordinarily should be dismissed.” Republican Party of N.M. v. N.M. Taxation & Revenue Dep‘t, 2012-NMSC-026, ¶ 10, 283 P.3d 853 (internal quotation marks and citation omitted). The Tribe argues that its appeal was not moot because, even though the final plat was approved, the errors it has alleged regarding the County‘s approval of Tampico‘s preliminary plat application remain a live controversy. The Tribe also contends that actual relief exists in this case and that by proceeding with the subdivision development process during the pendency of the Tribe‘s appeal, Tampico bore the risk that the appeal could result in an unfavorable decision. In response to the Tribe‘s contentions, Tampico claims that the finality issue discussed above should govern the mootness dispute in this case.
{21} We have already determined that the district court erred in determining that the preliminary plat approval was a non-final decision. Given our reversal on the finality issue, if the Tribe‘s claims of error regarding the preliminary plat approval are
C. Cancellation of Lis Pendens Notice
{22} As a final matter, we briefly address one remaining aspect of the district court‘s ruling. We observe that the district court‘s order dismissing the Tribe‘s appeal also included language cancelling the notice of lis pendens on file with the County clerk‘s office in this case.1 This court-ordered cancellation of the lis pendens was premature and in error under existing New Mexico case law. We have previously held that a notice of lis pendens filed in an action continues “until expiration of the time for appeal or until final disposition of the case by the appellate court.” Kokoricha v. Estate of Keiner, 2010-NMCA-053, ¶ 18, 148 N.M. 322, 236 P.3d 41; Salas v. Bolagh, 106 N.M. 613, 615, 747 P.2d 259, 261 (Ct. App. 1987). Therefore, the district court‘s cancellation of the lis pendens was improper.
CONCLUSION
{23} Based on the foregoing, we reverse the district court‘s order of dismissal and remand for the district court to consider the merits of the Tribe‘s appeal.
{24} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
CYNTHIA A. FRY, Judge
Topic Index for Zuni Indian Tribe v. McKinley Cnty. Bd. of Cnty. Comm‘rs, No. 31,496
ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal
APPEAL AND ERROR
Standard of Review
CIVIL PROCEDURE
Estoppel
Final Order
Mootness
GOVERNMENT
Subdivisions
PROPERTY
Lis Pendens
Subdivisions