May 24, 2021- Eli Sanchez v. Board of County Commissioners of Taos County, No. A-1-CA-37995

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: MAY 24, 2021	3
No. A-1-CA-37995	4
ELI SANCHEZ, PATRICIA C. TRUJILLO,	5
ARROYO HONDO COMMUNITY	6
ASSOCIATION, and ACEQUIA MADRE	7
DEL LLANO,	8
Petitioners-Appellants,	9
v.	10
BOARD OF COUNTY COMMISSIONERS	11
OF TAOS COUNTY,	12
Respondent-Appellee,	13
and	14
EDMUND HEALY,	15
Intervenor/Respondent-Appellee.	16
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY	17
Sarah C. Backus, District Judge	18
Atler Law Firm, P.C.	19
Timothy J. Atler	20
Jazmine J. Ruiz	21
Albuquerque, NM	22
Court of Appeals of New Mexico
Filed 5/24/2021 5:44 PM

Graeser & McQueen, Attorneys at Law	1
Christopher L. Graeser	2
Santa Fe, NM	3
for Appellants	4
Robles, Rael & Anaya, P.C.	5
Randy M. Autio	6
Charles Rennick	7
Albuquerque, NM	8
for Appellee Board of County Commissioners of Taos County	9
Sommer, Udall, Hardwick & Jones, PA	10
Jack N. Hardwick	11
Santa Fe, NM	12
for Appellee Edmund Healy	13
Enrique Romero	14
Santa Fe, NM	15
for Amicus Curiae New Mexico Acequia Association, Inc.	16

OPINION	1
HENDERSON, Judge.	2
{1} 	Eli 	Sanchez 	(Sanchez), 	Patricia 	C. 	Trujillo 	(Trujillo), 	Arroyo 	Hondo	3
Community Association, and Acequia Madre del Llano (collectively, Petitioners1)	4
petitioned for a writ of certiorari to review the district court’s decision affirming	5
permits granted by the Board of County Commissioners of Taos County (the	6
County). The County affirmed the decision of the Taos Planning Commission	7
(Planning Commission) to grant a permit to construct a heliport on property owned	8
by Intervenor Edmund Healy (Healy), adjoining agricultural fields farmed by	9
Sanchez and Trujillo. Petitioners claim that a series of unpermitted and permitted	10
construction ranging over a five-year period and culminating in the permit allowing	11
construction of the heliport interfered with their access to and use of a lateral that	12
runs across the Healy property to their fields.	13
{2} 	The County refused to apply the provisions of the Taos, N.M., Ordinance	14
2015-02, Land Use Regulations (LUR) (2015), requiring the permission of the	15
acequia commission for any construction activity which disturbs an acequia “in any	16
way[,]” claiming that this regulation applies only to construction that disturbs an	17
acequia madre, and not a lateral. See Taos, N.M., LUR art 4, § 4.8.1(N).	18
1 The Acequia Madre del Llano was not a named petitioner in this case until
the Notice of Appeal was filed before the district court on August 9, 2017.

2
{3} 	In addition, the County refused to consider Petitioners’ challenge to the	1
installation of a culvert in 2012 and the building of a retaining wall in 2015,	2
preliminary steps in the heliport construction that disturbed the lateral. Petitioners	3
argued that their appeal is timely based on the unusual circumstances of piecemeal	4
construction and the County’s failure to provide notice and request approval of the	5
acequia commission. The County found, and the district court agreed, that the appeal	6
of any permit prior to the final permit for the heliport was untimely.	7
{4} 	In this appeal, we address (1) whether a lateral is also considered an acequia	8
under the Taos, N.M., LUR art. 4, § 4.5.3(C); and (2) whether there were unusual	9
circumstances which excused the untimely appeal by Petitioners. Having read the	10
briefs, heard oral argument, and being fully informed on the issues and applicable	11
law as raised by the parties, we reverse the district court and hold that laterals are	12
acequias; and remand a portion of this case to the County to hold a new hearing	13
regarding all the permits issued during the course of this construction, consistent	14
with this opinion.	15
BACKGROUND	16
{5} 	We first lay out the geographical description at the center of this litigation and	17
set forth the general factual and procedural background preceding this appeal,	18
reserving further discussion of facts or litigative events where pertinent to our	19
analysis.	20

3
{6} 	This case involves three named acequias and a lateral2 in the small northern	1
New Mexico town of Hondo Seco. The acequias and laterals include (1) the Acequia	2
Madre del Llano (Acequia Madre); (2) the Acequia de la Cordillera; (3) the Acequia	3
de la Plaza; and (4) a lateral—which is at the center of this appeal. The tracts of	4
property involved are that of Healy, and three adjacent properties of parcientes3
5
Sanchez, Padilla, and Trujillo (Padilla is not a party to this case), to the west of	6
Healy’s tract. The unnamed lateral runs between the boundary of the Healy tract and	7
the three parcientes’ tracts, delivering water to the fields of the three parcientes. The	8
Acequia Madre is not located on the property of the parties, but it is the main acequia,	9
or irrigation ditch, which feeds water into the other acequias and laterals, including	10
the lateral at issue in this case.	11
{7} 	As noted above, this case involves a series of permitted and unpermitted	12
construction projects that took place from approximately 2011 through 2016, which	13
Petitioners allege disturbed the lateral acequia that carries water to the Sanchez and	14
Trujillo fields. Healy, as a developer, sought a series of permits from the Taos	15
2 We use the term “lateral” to refer to smaller ditches that serve one or more
owners. These smaller ditches are commonly located between property owners. The
term “lateral” is used interchangeably with the terms “acequia, lindero” and
“acequia, venita” as defined in the LUR. See Taos, N.M., LUR art. 2, § 2.1.2
(Definitions).
3 Acequia, Parciente (also 	spelled 	Parciante) refers 	to 	“[a] member or
shareholder 	of 	an 	[a]cequia, 	responsible 	for 	a 	share 	of 	ditch 	maintenance
proportionate to his or her irrigated acreage.” Id. Sanchez, Padilla, and Trujillo are
in fact parcientes of the Acequia Madre.

4
County Planning Director (Planning Director) to construct a bridge, a retaining wall,	1
a parking lot, and ultimately a heliport, on his property. His construction began in	2
2011 or early 2012 with construction to encase the impacted lateral in a culvert.4
3
This construction was done without a permit. The facts below are organized in	4
chronological order, beginning with the construction of the culvert, followed by each	5
of Healy’s applications for a permit. The procedural history follows.	6
I. 	Factual Background	7
A. 	The Unpermitted Construction Placing the Lateral Into Culverts	8
{8} 	Petitioners assert that around 2012, without applying for, or receiving a county	9
permit, Healy proceeded to construct a culvert encasing the lateral across his	10
property. This lateral was one that was shared by the parcientes. In contrast, the	11
County maintains that the culverts had already been installed in 2011, prior to any	12
of these proceedings or applications for permits. Healy admits that at some point in	13
2012, he placed the laterals in steel culverts and built a junction box and installed	14
gates so that all three parcientes could distribute water among their properties. Healy	15
notes that he received permission to place the lateral into culverts from the brother	16
of one of the Petitioners.	17
B. 	The 2012 Permit	18
4 A culvert is defined as, “a transverse drain or waterway (as under a road,
railroad, or canal)[.]” Tompkins v. Carlsbad Irrigation Dist., 1981-NMCA-072,
¶ 23, 96 N.M. 368, 630 P.2d 767 (internal quotation marks and citation omitted).

5
{9} 	In 2012, Healy submitted an application to the Taos County Planning	1
Department (Planning Department) seeking a Special Use Permit (SUP-002-2012	2
permit), to construct a driveway and bridge crossing to his property. 5 Though the	3
permit application was for a driveway and bridge, a terraced retaining wall was also	4
shown in the plans.6 Petitioners contend that, despite the retaining wall being shown	5
in the plans, it was not officially a part of the proposal. The plans did not show	6
acequias or laterals that flowed across the property. Petitioners assert that while they	7
received notice for the SUP-002-2012 permit, the notice focused exclusively on the	8
construction of the road and bridge. Petitioners state that the notice did not fairly	9
apprise them that Healy also sought to build a retaining wall that would interfere	10
with their lateral. The Planning Commission approved the permit application.	11
C. 	The 2015 Permit	12
{10} 	In 2015, Healy submitted an application for a building permit (CO-203-15),	13
to construct a retaining wall. According to the Planning Director, this application—	14
5 A Special Use Permit is distinct from other types of permits issued by the
Planning Department. The other includes, as relevant here, an Administrative
Permit. Each type has its own permit requirements. See Taos, N.M., LUR art. 4,
§ 4.1.1 (Permit Requirements). Both types of permits require the same type of
notification and approvals, namely from “other entities such as pueblos, . . .
neighborhood associations and acequia associations, as applicable.” Id. § 4.5.2(E).
6 Petitioners state that “[a] copy of the notice for the [SUP-002-]2012 [p]ermit
is not in the record due to the County’s refusal to allow “any testimony or exhibits
pertaining to permits or construction phases prior to [the 2016 Permit], particularly
the retaining walls.”

6
or the “building permit”—was not required to undergo the same process of review	1
as a special use permit or administrative permit. The Planning Director maintained	2
that the construction of the retaining wall was exempt from such review under Taos,	3
N.M., LUR art. 3, § 3.3.1 (Exemptions from Land Use Permit Requirements).	4
{11} 	A memorandum from the Planning Director to the Planning Commission	5
acknowledged that the layout of the proposed retaining wall differed from the	6
retaining wall included in the SUP-002-2012 permit plans. The location of the	7
proposed retaining wall was changed to cross over the lateral, making access to the	8
lateral difficult or impossible and blocking the traditional access to the headgate used	9
by parcientes. The memorandum emphasized that the Planning Director reviewed	10
the change and “determined that the reconfiguration did not create a health, safety,	11
or welfare issue.” No mention is made of the effect of the construction on the lateral.	12
No request for approval was made to the acequia commission. The Planning Director	13
recommended that the Planning Commission grant the building permit (CO-203-15)	14
to Healy to construct the retaining wall. The building permit was approved by the	15
Planning Commission. The Planning Director also clarified in his memorandum that	16
he “did [not] release the building permit for the retaining walls because they were	17
referenced in the [SUP-002-2012 permit],” but because he interpreted the retaining	18
walls as the type of limited excavation that needed only a building permit and did	19
not need additional zoning. While there is an 8.5 x 11 inch paper notice that states it	20

7
should be posted “in a conspicuous place,” there is nothing in the record indicating	1
that the notice was actually posted.	2
{12} 	The record does not clearly indicate when the retaining wall was constructed;	3
however, Petitioners maintain that the retaining wall was actually constructed prior	4
to the approval of the 2015 application by the Planning Director. The date of	5
construction is not part of the record. Petitioners maintained that they went to the	6
Planning Director to express their dissatisfaction with the construction of the	7
retaining wall, but that they were turned away.	8
D. 	The 2016 Permit	9
{13} 	Finally, in 2016 Healy submitted a third application for an Administrative	10
Permit (Admin.-003-2016 permit), to construct a helipad, parking lot, and driveway	11
entrance. The application included, among other documents necessary for approval	12
of 	an 	Administrative 	Permit, 	pursuant 	to 	Taos, 	N.M., 	LUR 	art. 	4, 	§ 4.5.2	13
(Administrative 	or 	Special 	Use 	Application 	Submittal 	Requirements), 	an	14
Environmental Impact Study, a determination letter from the Federal Aviation	15
Administration, deeds, and notifications of approvals. 	The Planning Director	16
deemed the application incomplete and requested further clarification on a number	17
of items, including, for the first time, clarification of the project’s impact on the on-	18
site acequias. In relevant part, the letter to Healy stated, “[T]he applicant failed to	19
identify the location of the on-site acequia.” Healy was further directed to comply	20

8
with Taos N.M. LUR art. 4, § 4.8.1(N), and identify the location of any acequias,	1
and submit the application to the applicable acequia commission for review.	2
{14} 	Healy responded to the Director’s request for clarification, and in relevant	3
part, pointed to a letter from the Acequia de La Plaza Commission, which stated	4
(incorrectly) that the Acequia de la Plaza was the only on-site acequia on Healy’s	5
property.7 The letter from the Acequia de La Plaza Commission expressed support	6
for the helipad and encouraged the approval of the administrative permit for the	7
helipad. Healy further responded that “although there is an acequia or irrigation ditch	8
across the street from [Healy]’s property and south of (behind) the Hondo Seco	9
Volunteer Fire Department property, the ditch is located more than [sixty] feet	10
beyond [Healy]’s property line.” “The headgate for the lateral irrigation ditch	11
serving [Healy]’s property is also located more than [sixty] feet beyond [Healy]’s	12
property line and beyond the survey limits. The irrigation gates and irrigation ditches	13
located on [Healy]’s parcel are not maintained by the acequia.”8
14
{15} 	On December 15, 2016, the Planning Director approved Healy’s application	15
for the administrative permit—Admin.-003-2016—subject to multiple conditions.	16
Specifically, Condition No. 20 instructed that Healy “shall provide the Planning	17
7 The Acequia de la Plaza is not the onsite lateral that is being impacted by the
construction of the wall. The lateral stemming from Acequia Madre, which was
placed into a culvert upon which the wall was built, is however onsite.
8 Although not clear by Healy’s language, it appears that he is referring to the
Acequia Madre.

9
Department with a letter advising that the lateral irrigation ditches located within the	1
site are not maintained by the acequia9 and that the helipad and parking area [would]	2
not interrupt, reduce, or change the flow of water to the parcientes of the lateral	3
irrigation ditches.” Pursuant to Taos, N.M., LUR art. 4, § 4.5.3(C) public notice of	4
the decision was posted, and any party aggrieved by the decision had up to thirty	5
days to appeal to the Planning Commission. Taos, N.M., LUR art. 10, § 10.1.1(B)	6
(Appeals).	7
II. 	Procedural Background	8
A. 	Appeal to the Taos Planning Commission	9
{16} 	Just over a month later—on January 17, 2017, Petitioners timely appealed the	10
Admin.-003-2016 permit to the Planning Commission. In relevant part, Petitioners	11
raised concerns with Condition No. 20. They claimed that the retaining wall that was	12
built across the lateral interfered with their traditional and legal access to and from	13
the lateral’s headgate. Petitioners asserted that Healy’s retaining wall was not given	14
a set-back from the Sanchez family property line. Petitioners further complained	15
that, although Healy was directed to provide a letter from the acequia commission	16
prior to the helipad becoming operational, this issue should have been addressed	17
during the design process and before breaking ground. In a response to the appeal,	18
9 Although not clear by the language used by the Planning Director, it appears
that he is also referring to the Acequia Madre.

10
Healy asserted that the lateral irrigation ditch located on the site was not maintained	1
by the Acequia Madre, and “that the helipad and parking area would not interrupt,	2
reduce, or change the flow of water to the parcientes of the lateral irrigation ditch.”	3
{17} 	The Planning Commission affirmed the Planning Director’s approval for	4
Healy’s administrative permit after holding two separate hearings. Healy’s permit	5
was affirmed with conditions. The Commission included conditions similar to those	6
set forth by the Planning Department, again including language identical to	7
Condition No. 20. The condition again required Healy to “provide the . . . Planning	8
Department with a letter advising that the lateral irrigation ditches located within the	9
site [were] not maintained by [an a]cequia [commission] and that the helipad and	10
parking area [would] not interrupt, reduce, or change the flow of water to the	11
parcientes of the lateral irrigation ditches.” The only letter in the record was the one	12
previously provided by the Acequia de La Plaza Commission. The Acequia de la	13
Plaza’s letter supports granting the administrative permit for the helipad, parking lot,	14
and driveway entrance. However, the Acequia de La Plaza is not the acequia or	15
lateral that is impacted by the retaining wall. Petitioners again timely appealed the	16
Planning Commission’s decision to the County on May 30, 2017.	17
B. 	Appeal to the County	18
{18} 	Upon its review the County commenced a public hearing and performed an	19
on-site inspection. The County made findings to include in relevant part:	20

11
[Healy] has introduced sufficient evidence that the Acequia Madre . . .	1
which 	is 	located 	off-site 	will 	not 	be 	disturbed 	in 	any 	way 	by	2
construction activity and that the development of the subject property	3
is in excess of [twenty] feet of the bank of the Acequia Madre[.] The	4
[County] also finds that the lateral ditches from the head[]gate located	5
on 	the 	subject 	property 	were 	encased 	in 	culverts 	prior 	to 	the	6
construction 	of 	the 	proposed 	helipad 	and 	not 	as 	a 	result 	of	7
Administrative Permit Admin.-003-2016. Further, [p]arciantes from	8
the lateral ditch may enter the property and control their respective	9
irrigation flow at the head[]gate and that maintenance of the lateral	10
ditches will be maintained by [Healy].	11
The County, after considering all the evidence, and the arguments by the parties,	12
affirmed the decision of the Planning Commission subject to multiple conditions.10
13
Again 	in 	relevant 	part, 	the 	County 	directed 	Healy 	to 	provide 	the 	Planning	14
Commission with a letter advising “that the lateral irrigation ditches located within	15
the site [were] not maintained by the Acequia [Commission]11 and that the helipad	16
and parking area [would] not interrupt, reduce, or change the flow of water to the	17
parcientes of the lateral irrigation ditches.” Petitioners then appealed the decision of	18
the County to the district court.	19
10 However, according to Petitioners and apparent from the record, the County
did not allow Petitioners to present evidence of the lateral being placed into a culvert
without a permit, nor did it speak to the 2015 permit for the current retaining wall:
the permit which restricted Petitioners’ access to the lateral. Additionally, the
Planning Director’s memorandum specifically recommended a finding that any
appeal from the decision on the retaining wall is untimely.
11 Again, the County does not make clear which Acequia Commission they are
seeking a letter from, but it is assumed they are referring only to the Acequia Madre
Commission.

12
C. 	The District Court Decision	1
{19} 	The district court, in its decision and order stated “[t]he sole issue [was]	2
whether [Healy] was required to obtain the approval of the Acequia Madre . . . prior	3
to the application being approved.” The district court concluded that the decision of	4
the County was “based upon substantial evidence in the record, was not fraudulent,	5
arbitrary or capricious[,] and was in accordance with the law.” The district court	6
gave deference to the County’s interpretation of the LUR and held that laterals were	7
not intended to be considered acequias. Finally, the district court held that the	8
County properly denied consideration of the permits prior to the 2016 permit.	9
DISCUSSION	10
{20} 	A petition for writ of certiorari was timely filed with this Court, and we	11
granted the writ. Petitioners raise two issues on appeal: (1) whether a lateral is	12
considered an acequia under the Taos County LUR; and (2) whether the County	13
properly treated Petitioners’ appeal of the permit allowing construction of the	14
retaining wall as untimely without considering Petitioners’ evidence of piecemeal	15
construction and lack of notice, circumstances that Petitioners’ claim excused a late	16
appeal.	17
{21} 	On certiorari in an administrative appeal of this type, we employ “the same	18
standard of review used by the district court while also determining whether the	19
district court erred in its review.” Paule v. Santa Fe Cnty. Bd. of Cnty. Comm’rs,	20

13
2005-NMSC-021, ¶ 26, 138 N.M. 82, 117 P.3d 240. Our review is limited to	1
ascertaining “whether the administrative agency acted fraudulently, arbitrarily or	2
capriciously; whether the agency’s decision is supported by substantial evidence; or	3
whether the agency acted in accordance with the law.” Id.; see Rule 1-075(R) NMRA	4
(outlining the standards of review applicable to agency action); Rule 1-074(R)	5
NMRA (same). “A ruling by an administrative agency is arbitrary and capricious if	6
it is unreasonable or without a rational basis, when viewed in light of the whole	7
record.” Rio Grande Chapter of Sierra Club, 2003-NMSC-005, ¶ 17, 133 N.M. 97,	8
61 P.3d 806. When applying this administrative standard of review, we will not	9
substitute our judgment for that of the fact-finder, but we review questions of law de	10
novo. Id.	11
I. 	The District Court Incorrectly 	Determined That Laterals 	Are Not	12
Intended to Be Considered Acequias	13
{22} 	In construing the LUR, the County encourages us to defer to its interpretation	14
of the regulations, because as the zoning authority, it interpreted its own zoning	15
ordinance. “When an agency construes a statute that governs it, the [C]ourt will	16
accord some deference to the agency’s interpretation.” Marbob Energy Corp. v.	17
N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 6, 146 N.M. 24, 206 P.3d 135.	18
“The [C]ourt will confer a heightened degree of deference to legal questions that	19
implicate special agency expertise[.]” Morningstar Water Users Ass’n v. N.M. Pub.	20
Util. Comm’n, 1995-NMSC-062, ¶ 11, 120 N.M. 579, 904 P.2d 28 (internal	21

14
quotation marks and citation omitted). “However, the [C]ourt is not bound by the	1
agency’s interpretation and may substitute its own independent judgment for that of	2
the agency because it is the function of the courts to interpret the law.” Id. “The	3
[C]ourt should reverse if the agency’s interpretation of a law is unreasonable or	4
unlawful.” Id.	5
{23} 	In this case, we are required to interpret the LUR and determine and give	6
effect to legislative intent. “Statutory interpretation is an issue of law, which we	7
review de novo.” N.M. Indus. Energy Consumers v. N.M. Pub. Regul. Comm’n,	8
2007-NMSC-053, ¶ 19, 142 N.M. 533, 168 P.3d 105. It does not appear from the	9
record that the County has any particular expertise or experience in determining what	10
should be considered an acequia under the LUR. “Because statutory construction	11
itself is not a matter within the purview of the Commission’s expertise, we afford	12
little, if any, deference to the Commission on this matter.” Id. (internal quotation	13
marks and citation omitted).	14
{24} 	“In construing municipal ordinances or county zoning ordinances, such as the	15
one here before us, the same rules of construction are used as when construing	16
statutes of the legislature.” Burroughs v. Bd. of Cnty. Comm’rs of Bernalillo Cnty.,	17
1975-NMSC-051, ¶ 13, 88 N.M. 303, 540 P.2d 233. “When construing statutes, our	18
guiding principle is to determine and give effect to legislative intent.” N.M. Indus.	19
Energy Consumers, 2007-NMSC-053, ¶ 20. Guided by classic canons of statutory	20

15
construction, “[w]e look first to the plain language of the statute, giving the words	1
their ordinary meaning, unless the Legislature indicates a different one was	2
intended.” Id. “In addition, we strive to read related statutes in harmony so as to give	3
effect to all provisions[.]” Id. We read provisions of a statute “together with other	4
statutes in pari materia under the presumption that the [L]egislature acted with full	5
knowledge of relevant statutory and common law[.]” Id. (internal quotation marks	6
and citation omitted).	7
{25} 	We must determine whether laterals—such as the one that runs between the	8
parties’ properties—are subject to the same type of protection from disturbances as	9
are acequias under the LUR.12 We first look to the language in the LUR. The LUR	10
requires “express permission” from the entity legally responsible for the operation	11
and maintenance of the acequia—the acequia commission—prior to disturbing an	12
acequia. Taos, N.M., LUR art. 4, § 4.8.1 (N). The language at issue further provides:	13
No acequia, whether onsite or off-site, shall be disturbed in any way by	14
building development or construction activity unless approved or	15
deemed approved by the acequia commission.	16
Id. (emphasis added).	17
{26} 	The plain language of Taos, N.M., LUR art. 4, § 4.8.1(N) does not clearly	18
identify whether an “acequia” is an “acequia, madre,” an “acequia, venita,” or	19
12 For purposes of this opinion, we use the word “lateral” to collectively refer
to “acequia, linderos” and “acequia, venitas” as found under the Taos, N.M., LUR
art. 2, § 2.1.2.

16
perhaps an “acequia, lindero.” Thus, it requires the Court to consider whether an	1
acequia, and the acequia subcategories—acequia, madre; acequia, venita, and;	2
acequia, lindero—are all acequias for purposes of Taos, N.M., LUR art. 4,	3
§ 4.8.1(N). If a lateral is considered an acequia, according to the LUR, any	4
disturbance must be approved by the applicable acequia commission. We look to the	5
definitions as provided by the LUR:	6
Acequia - Referring to both the irrigation ditch and the organization of	7
parcientes who use the ditch. The acequia transports surface water from	8
its source, e.g. a stream, a spring, watershed, a river, or a reservoir, to	9
irrigate lands used primarily for agricultural purposes. Also, an acequia	10
is a form of public corporation that is a political subdivision of the State	11
of New Mexico. Like all other political subdivisions, acequias are	12
competent to exercise those powers that the [L]egislature has delegated	13
to them, expressly or by necessary implication.	14
. . . .	15
Acequia, Lindero - In most cases, linderos are smaller ditches that serve	16
one or more owners. The ditches are commonly located between	17
property owners. Some [a]cequia organizations use this term in the	18
same context as venitas.	19
Acequia, Madre - The mother ditch or main irrigation canal diverting	20
water from stream.	21
. . . .	22
Acequia, Venita - Commonly refers to laterals originating from the	23
Acequia Madre or [a]cequias that deliver water to individual lands.	24
Some venitas have their own commission and collect additional dues to	25
those of the main ditch.	26
Taos, N.M., LUR art. 2, § 2.1.2 (emphasis added).	27

17
{27} 	Petitioners and Amicus point to these definitions and state that madres,	1
linderos, laterals, contras and venitas are all subcategories or subparts of an acequia	2
included within the overarching term “acequia.” The County and Healy contend, on	3
the other hand, that the LUR establishes clear and deliberate distinctions between	4
acequias and laterals, which demonstrate that they are not intended to be considered	5
identical.	6
{28} 	We do not find the rules of statutory construction relied on by the County	7
particularly helpful. The County and Healy suggest that if this Court were to	8
conclude that a lateral is indeed an acequia under the LUR, it would be adding	9
language to the term “acequia.” See High Ridge Hinkle Joint Venture v. City of	10
Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (“The [C]ourt will	11
not read into a statute or ordinance language which is not there, particularly if it	12
makes sense as written.” (internal quotation marks and citation omitted)); Marbob	13
Energy Corp., 2009-NMSC-013, ¶ 20 (additional language will not be read into the	14
statute language especially if the provision makes sense as written). The County	15
specifically argues that Taos, N.M., LUR art. 4, § 4.8.1(N) only refers to the acequia	16
madre, effectively excluding linderos, venitas, or laterals. If this Court were to	17
construe Taos, N.M., LUR art. 4, Section 4.8.1(N) as applying only to the acequia	18
madre, we would be required to read the word “madre” into the language. If we	19

18
interpreted the language according to the County’s suggestion, Taos, N.M., LUR art.	1
4, § 4.8.1(N) would read as follows:	2
No acequia [madre], whether onsite or off-site, shall be disturbed in any	3
way by building development or construction activity unless approved	4
or deemed approved by the acequia commission.	5
(Emphasis added.) Because the drafters of the LUR can include additional language	6
if they so desire, we will not do this work on their behalf. Cf. State v. Greenwood,	7
2012-NMCA-017, ¶ 38, 271 P.3d 753 (“The Legislature knows how to include	8
language in a statute if it so desires.” (alteration, internal quotation marks, and	9
citation omitted)).	10
{29} 	The County and Healy also refer us to language found elsewhere in the LUR,	11
which states that “[a]ll watercourses on the property, including springs, acequia	12
systems and related water improvements, which are located within 150 feet of the	13
property, must be shown[,]” and that “acequia systems” shall not be used as drainage	14
ways. Taos, N.M., LUR art. 4, § 4.6.5(B)(18)(a), (b) (emphasis added). The County	15
asks this Court to infer that because the term “acequia systems” exists in one section	16
of the LUR, it is clear that the term “acequia,” when used alone, refers only to an	17
acequia madre. Petitioners argue that the term “acequia systems,” should not be	18
considered as part of the interpretation under LUR, noting it doesn’t appear	19
anywhere else in LUR, but only in a single section, appearing to be “entirely	20
anomalous.” We agree with Petitioners that there is no clear indication of intent to	21

19
apply the term “acequia systems” broadly throughout the LUR, particularly given its	1
absence from the definition of “acequia.”	2
{30} 	Not finding clear intent based on the canons of statutory construction relied	3
on by the parties, we turn to the broader context in which the LURs were adopted	4
and operate. The New Mexico Legislature has delegated to counties the statutory	5
authority to create local zoning ordinances and planning commissions. See NMSA	6
1978, 	§ 3-21-1 	(2007, 	amended 	2019) 	(“Zoning; 	authority 	of 	county 	of	7
municipality”); NMSA 1978, § 4-57-1 (1967) (providing that counties may create	8
planning commissions). Pursuant to this state statutory authority, the County’s LURs	9
provide that the regulations must comply with state law and that the regulations “are	10
meant to augment and enhance federal and state law and other county regulations.”	11
Taos, N.M., LUR art. 1, § 1.2.4; see id. § 1.2.1 (providing that “[t]he Taos County	12
[LUR]’s comply with [NMSA]”). The regulations further provide that “[a]ll	13
development under these regulations shall comply with all county ordinances, the	14
Taos County Comprehensive Plan, and applicable state and federal laws.” Id.	15
§ 1.2.5.	16
{31} 	The New Mexico statutes that govern acequias throughout the state are found	17
in NMSA 1978, Sections 73-2-1 to -68 (1851, as amended through 2019). We pay	18
particular attention to Section 73-2-11, which states in relevant part, “every one of	19
said community ditches beginning at the dam or entrance of the water, in continued	20

20
course to the end of the same, shall be considered as one ditch or acequia only[.]”	1
(Emphasis added.) We reject the County’s argument that the exception in this statute	2
somehow negates the lateral’s status as an acequia. In our view, the plain language	3
of the state statute, properly construed, means that all smaller ditches, or laterals,	4
that run along the course anywhere from where the water begins, to the end, where	5
the water is carried to a parciente’s property to irrigate a field, shall be considered	6
a single acequia. See Buynak, Brigette; Jerold Widdison; and Darcy S. Bushnell.	7
“Acequias.” 	Water 	Matters! 	2015, 	1 	(2015): 	4-1-4-12.	8
https://digitalrepository.unm.edu/utton_watermatters/vol2015/iss1/9 (explaining	9
historical context of acequias and stating, “[t]he acequias include the diversion	10
dams, headgates, flumes, and other features needed to transport 	water for	11
irrigating fields, gardens, croplands, and pastures”). This language is reflective and	12
supportive of what is stated in the LUR, as stated above, namely that, “[t]he acequia	13
transports surface water from its source, e.g. a stream, a spring, watershed, a river,	14
or a reservoir, to irrigate lands used primarily for agricultural purposes.” Taos, N.M.,	15
LUR art. 2, § 2.1.2. (defining acequia). Both provisions state that an acequia begins	16
at the source. The state statute indicates that an acequia continues through to the end	17
of the course, while the LUR states an acequia transports water from the source to	18
irrigate lands. Transporting water, to the end of the course of a ditch, is what New	19
Mexico’s system of acequias was intended to do.	20

21
{32} 	We also look to early case law from our Supreme Court for more context on	1
the role of acequias:	2
New Mexico being in the arid region, the early settlements were	3
established along the banks of perennial rivers, or in the mountain	4
valleys where water from springs and creeks was reasonably certain to	5
be available for irrigation at the needed times. . . . [T]he people built	6
their houses and established their towns and plazas close together, and	7
cultivated the lands in small tracts adjacent to the settlement. . . . [T]he	8
people 	by 	their 	joint 	effort 	would 	construct 	an 	irrigation 	ditch,	9
sufficiently large enough to convey water to their lands for the irrigation	10
of crops. Each individual owned and cultivated a specific tract of land,	11
sufficient to provide food for the needs of his family, and from the main	12
ditch laterals were run to the various tracts of land to be watered.	13
Parkview Cmty. Ditch Ass’n v. Peper, 2014-NMCA-049, ¶ 3, 323 P.3d 939 (quoting	14
Snow v. Abalos, 1914-NMSC-022, ¶ 8, 18 N.M. 681, 140 P. 1044). Parkview and	15
Snow make it clear that acequias are intended for the purpose of irrigating fields and	16
crops. This purpose informs our analysis.	17
{33} 	We conclude that the County’s legislative body, in promulgating the Taos,	18
N.M., LUR art. 4, § 4.8.1(N), consistent with other state legislative enactments	19
concerning acequias, and the documented history of acequias, intended for laterals	20
to be subject to the same protection as an acequia. Therefore, we determine that	21
Taos, N.M., LUR art. 4, § 4.8.1(N) should be construed to mean that an “acequia”	22
refers to all types of acequias and laterals as provided for under Taos, N.M., LUR	23
art. 2, § 2.1.2. Under this construction, the lateral at issue should not have been	24
disturbed without “express permission” from the appropriate acequia commission	25

22
for its operation and maintenance. Taos, N.M., LUR art. 4, § 4.8.1(N) (seeking	1
approval from the acequia commission). Accordingly, we reverse the district court’s	2
decision, and hold that the impacted lateral in this case is in fact an acequia.	3
II. 	The County’s Failure to Provide Notice to the Acequia Commission and	4
the Other Petitioners Created an Unusual Circumstance That Excuses	5
Any Untimely Appeal	6
{34} 	Petitioners additionally assert that they were entitled to notice, and an	7
opportunity to object and be heard prior to the lateral being placed into culverts and	8
a retaining wall constructed across the acequia—construction that was authorized by	9
2012 and 2015 permits. They claim that they were improperly denied notice due, in	10
large part, to the piecemeal nature of the construction, and that therefore their appeal	11
of the 2016 permit should be treated as a timely appeal of the entire project, including	12
the grant of the earlier permits that interfered with the acequia without permission.	13
Petitioners argue that Healy’s series of permitted and unpermitted construction	14
between 2012 and 2016 never allowed an opportunity for them to object to a project	15
that has serious and significant effects on the acequia serving their land and on their	16
traditional way of life. Petitioners contend that they were prohibited from even	17
discussing this course of events at the administrative and district court hearings	18
addressing the 2016 permit. The record does not clearly indicate when Petitioners	19
went to the Planning Department to express dissatisfaction with the construction of	20
the retaining wall; however, Petitioners claim that they did in fact go to the Planning	21

23
Department and were turned away. The record proper does not include any written	1
complaints until after Healy submitted his application for the 2016 permit.	2
{35} 	The County, on the other hand, urges this Court to limit its focus to the 2016	3
permit, claiming it is the only permit properly before us for review. The County asks	4
us 	not 	to 	review 	Petitioners’ 	grievances 	regarding 	the 	prior 	permitted 	and	5
unpermitted construction, which allowed the lateral to be culverted and the retaining	6
wall to be constructed. The County claims the culverts were installed prior to the	7
2012 permit, and Petitioners did not challenge or object to the acequias being	8
culverted until four years later. The County and Healy further assert that there was	9
permission from a Petitioner’s brother to put the lateral in a culvert and then bury it	10
in 2011, before the 2012 permit was issued. Petitioners respond, arguing that	11
Sanchez’s brother was misled, and even if he was not, his brother is a minority owner	12
and therefore did not have authority to grant permission.13 Petitioners further state	13
that the acequia commission is the proper party who should have been contacted,	14
and whose permission was required by the LUR, not that of the individual parcientes.	15
We construe the second issue to be whether Petitioners’ lack of notice, combined	16
with 	the 	piecemeal 	nature 	of 	the 	construction, 	together 	constitute 	unusual	17
circumstances justifying the late filing of an appeal.	18
13 The Court notes that Healy does not claim to have received permission from
any of the other parcientes affected by the lateral being placed in a culvert.

24
{36} 	We begin by reiterating that in our foregoing discussion, we conclude that	1
laterals are acequias. We therefore agree with Petitioners that notification and	2
permission from the proper acequia commission was required. As we have stated,	3
obstructing acequias—or laterals—is prohibited by the LUR. See Taos, N.M., LUR	4
art. 4, § 4.8.1(N) (“No acequia, whether on-site or off-site, shall be disturbed in any	5
way by building development or construction activity unless approved or deemed	6
approved by the acequia commission.”); see also id. § 4.8.1(N)(1), (2). Healy	7
initially failed to provide notice and seek approval from the Acequia Madre	8
Commission when it placed the lateral in culverts. The Planning Director and the	9
County also failed to ensure there was notice and approval from the acequia	10
commission prior to approving multiple, piecemeal permits that allowed Healy to	11
build over the culverted lateral and restricted the parcientes access to the headgate.	12
We hold that these actions were in violation of Taos, N.M., LUR art. 4, §4.8.1(N).	13
{37} 	Next, we address the notice to the remainder of the Petitioners. The County	14
points to Rule 1-074(E) and NMSA 1978, Section 39-3-1.1(C) (1999), which specify	15
that a person may appeal an agency decision within thirty days of the decision. While	16
the County is correct that typically all appeals must be filed within thirty calendar	17
days, “the appropriate inquiry for determining if a court can exercise its ‘discretion	18
and entertain an appeal even though it is not timely filed’ is whether ‘unusual	19
circumstances beyond the control of the parties’ are present.” Schultz ex rel. Schultz	20

25
v. Pojoaque Tribal Police Dep’t, 2010-NMSC-034, ¶ 18, 148 N.M. 692, 242 P.3d	1
259 (quoting Trujillo v. Serrano, 1994-NMSC-024, ¶¶ 15, 19, 117 N.M. 273, 871	2
P.2d 369). An untimely appeal may be excused when “exceptional circumstances”—	3
circumstances outside of a party’s control—substantially impair the ability of an	4
aggrieved party to appeal. Sisson v. D.C. Bd. of Zoning Adjustment, 805 A.2d 964,	5
969 (D.C. 2002)	6
{38} 	Similar to New Mexico’s unusual circumstances principle, the District of	7
Columbia utilizes an “exceptional circumstances” principle to excuse the untimely	8
filing of an appeal when notice of the entire scope of work performed is not afforded	9
to a party because of a piecemeal nature in seeking building permits. Id. at 969-70.	10
In Sisson, the D.C. Court of Appeals reviewed how a piecemeal permitting process	11
for construction on a neighbor’s land impaired another neighbor’s ability to timely	12
challenge the construction. There, the Court held that the aggrieved neighbor could	13
not be charged with notice given the piecemeal way permits for changes were	14
sought, ultimately adding up to substantial construction. Id. at 970. The Court	15
reasoned that “[b]ecause of the cumulative, piecemeal nature of the applications, the	16
full extent of [the] construction project could not be discerned as each individual	17
permit was issued and therefore they must be considered as a whole.” Id. at 969, 970	18
(internal quotation marks omitted).	19

26
{39} 	Here, because Healy’s permits were sought in a piecemeal fashion, where	1
each permit application failed to reflect the entire scope of Healy’s project,	2
Petitioners ability to object or appeal the permits was substantially impaired. A	3
thorough search of the record does not indicate when Petitioners were put on notice	4
of the proposed construction of the retaining wall or its relocation to block their	5
access to the headgate, nor does the County or Healy assert that they took any action	6
to give Petitioners notice. Petitioners did not receive notice that the retaining wall	7
would cover their traditional access to the lateral, that the Sanchez family fence	8
would be torn down, and that the wall would be constructed without a setback from	9
Petitioners’ property line. Because of these errors by the Planning Director and the	10
County in failing to notify Petitioners and permit the construction appropriately, the	11
scope and interference by the retaining wall was not apparent to Petitioners until the	12
work was substantially complete. We conclude that the piecemeal and misleading	13
permitting process created an unusual or exceptional circumstance which extends	14
the time to appeal. Petitioners did not have proper notice of the construction, and	15
this excuses Petitioners’ delay in filing an appeal.14
16
14 While our Supreme Court has not identified a bright line rule regarding how
much time may pass under unusual circumstances and still permit an otherwise
untimely appeal to be heard, the Court has before held that even a delay of up to four
years may be excused if there are unusual circumstances and insufficient notice to
appellants. See Neal v. N.M. Pub. Regul. Comm’n, No. S-1-SC-35638, dec. at 7
(N.M. Sup. Ct. Dec. 15, 2016) (non-precedential) (“If notice in [the case] was
insufficient so that [the a]ppellants had no opportunity to participate in the case, it

27
{40} 	Therefore, we hold that that Petitioners’ untimely appeal regarding the	1
construction of the retaining wall should be excused. We remand this case to the	2
Taos County Board of Commissioners to hold a new hearing regarding all the	3
permits issued consistent with this opinion.	4
CONCLUSION	5
{41} 	We reverse and remand for proceedings consistent with this opinion.	6
{42} 	IT IS SO ORDERED.	7
__________________________________	8
SHAMMARA H. HENDERSON, Judge	9
WE CONCUR:	10
_______________________________	11
J. MILES HANISEE, Chief Judge	12
_______________________________	13
JANE B. YOHALEM, Judge	14
follows that [the a]ppellants would have had no opportunity to file a timely appeal
in the case.”).