January 24, 2013 – Zuni Indian Tribe v. McKinley County Board of County Commissioners, No. 31,496

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 24, 2013

NO. 31,496

ZUNI INDIAN TRIBE,
Plaintiff-A ppellant,

V.

MCKINLEY COUNTY BOARD OF
COUNTY COMMISSIONERS,

Defendant- Appellee,

and

TAMPICO SPRINGS RANCH 3000, LLC,
Intervenor- Appellee.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Robert A. Aragon, District Judge

Samuel D. Gollis, Attomey at Law, P.C.
Samuel D. Gollis

Albuquerque, NM

Jane Marx, Attomey at Law, P.C.
Jane Marx

Albuquerque, NM

for Appellee

Mason & Issacson, P.A.
James Jay Mason
Gallup, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	The New Mexico Subdivision Act (the Act), NMSA 1978, §§ 47-6-1 to -29
(1973, as amended through 2009), governs the subdivision review and approval
process by counties. The appeals provision of the Act, Section 47-6-15(B), provides
that a party adversely affected “by a decision of the board of county commissioners
may appeal to the district court pursuant to the provisions of [NMSA 1978, §] 39-3-
1.1 [(1999)]”—the statute governing administrative appeals. In this case, we address
whether a county’s approval or disapproval of a preliminary subdivision plat
application constitutes a final, appealable decision for purposes of Section 47-6-15(B)
of the Act. 	We also decide whether a timely filed appeal from a decision on a
preliminary plat application is rendered moot simply because the county proceeded
to approve the final plat application during the pendency of the appeal.
{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.

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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

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“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”).
DISCUSSION
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 Sections
47-6-15(B) and 39-3-1.1. The Tribe argues that the district court erred in concluding
that a county’s approval or disapproval of a preliminary subdivision plat application

4
does not constitute a final decision that is appealable to the district court. Section 47-
6-15(B) reads:
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 Section 47-6-
15(B), and here, the parties disagree as to whether a county’s approval or disapproval
of a preliminary plat application is a decision from which an aggrieved party can seek
judicial review. 	The Tribe contends that the County’s approval of Tampico’s
preliminary plat application in this case constituted a “decision” under Section 47-6-
15(B) of the Act and that this is a “final decision” within the meaning of Section 39-3-
1.1. For the reasons that follow, we agree.
{8} 	In interpreting Section 47-6-15 of the Act, “we seek to give effect to the
Legislature’s intent, and in determining intent we look to the language used and
consider the statute’s history and background.” Key v. Chrysler Motors Corp., 121
N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996); see State v. Nick R., 2009-NMSC-
050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (stating that in interpreting statutes, “we
examine the plain language of the statute as well as the context in which it was
promulgated, including the history of the statute and the object and purpose the
Legislature sought to accomplish” (internal quotation marks and citation omitted)).
“We must take care to avoid adoption of a construction that would render the statute’s

5
application absurd or unreasonable or lead to injustice or contradiction.” Id. (internal
quotation marks and citation omitted).
{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 § 47-6-11. The Act
specifically requires the subdivider to furnish documentation of various matters, such
as water availability and road access, along with its preliminary plat. Section 47-6-
11(B). The Act requires the board of county commissioners to seek written input in
the form of “opinions” from interested parties and various state entities, including the
state engineer, the department of environment, and the department of transportation.
Section 47-6-11(F). The Act further requires the board of county commissioners to

6
hold a public hearing to “weigh these opinions [if all are favorable] in determining
whether to approve the preliminary plat.” 	Section 47-6-11(G); see § 47-6-11(H)
(describing the process to be followed where negative opinions are submitted by state
agencies, tribes, or other interested parties). At the public hearing, the board of county
commissioners is required to “allow all interested persons a reasonable opportunity
to submit data, views or arguments, orally or in writing, and to examine witnesses
testifying at the hearing.” Section 47-6-14(E). And finally, the Act provides that the
board of county commissioners is to render its decision on the preliminary plat
“within thirty days of the public hearing at a public meeting.” Section 47-6-14(F).
In light of the thorough review and decision-making process set forth in the Act for
preliminary plats, it is reasonable to conclude that the approval or disapproval of a
preliminary plat application would constitute a “decision” under Section 47-6-15
based on the term’s ordinary meaning.
{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

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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 Section
47-6-15.
{11} 	In addition, the statutory history of Section 47-6-15 confirms that the
Legislature intended to provide for judicial review of a county’s approval or
disapproval of a preliminary plat. 	In particular, we focus on the 1995 and 2005
amendments to the Act. See 1995 N.M. Laws, ch. 212; 2005 N.M. Laws, ch. 139, §§
2-3. Prior to 1995, the Act did not delineate separate review and approval processes
for preliminary and final plat applications. 	Instead, the earlier version of the Act
provided a single overarching subdivision review and approval process for a “plat.”
See, e.g., § 47-6-2(D) (1981) (defining plat); § 47-6-3 (1973) (describing certification
requirement for plats); § 47-6-6 (1979) (providing filing requirement for plats); § 47-
6-11 (1977) (detailing review and approval process for a type-one or type-two
subdivision); § 47-6-15 (1973) (permitting appeals from a county’s approval or
disapproval of a “subdivision plat”).

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{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 § 47-6-2(E), (F) (1995). The Legislature also amended the Act to provide distinct
requirements for review and approval of preliminary and final plat applications. See,
e.g., § 47-6-11 (1995) (describing preliminary plat approval process); § 47-6-11.3
(1995) 	(detailing 	final 	plat 	approval 	process); 	§ 	47-6-3 	(1995) 	(describing
requirements 	for 	final 	plats); 	§ 	47-6-4 	(1995) 	(providing 	affidavit 	and
acknowledgment requirements for final plats); § 47-6-6 (1995) (stating that approved
final plats shall be filed with the county clerk’s office and indicating that this
requirement does not apply to preliminary plats). 	And among other changes, the
Legislature further amended the Act to require the board of county commissioners of
each county to adopt regulations setting forth the county’s requirements for
preliminary and final subdivision plats. 	Section 47-6-9(A)(1). 	Thus, the 1995
amendment to the Act reflected a clear legislative intent to create a substantively and
legally distinct two-step subdivision approval process, with a portion of the Act now
specifically tailored to address the preliminary plat review and approval process.
{13} 	Section 47-6-15, the appeals provision of the Act at issue in this case, was also
modified in 1995. Prior to 1995, Section 47-6-15(A) (1973) read:

9
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 N.M. Laws, ch. 212, § 16(A).
Consequently, the language of Section 47-6-15(A) after the 1995 amendment
expressly permitted appeals to the district court from a decision of the board of county
commissioner’s on preliminary or final plat applications. However, the Tribe’s appeal
from the County’s approval of Tampico’s preliminary plat application in this case
arose after Section 47-6-15 was amended in 2005—when the Legislature removed the
“approving or disapproving a preliminary or final plat” language from the provision.
See § 47-6-15(B) (2005). As a result of the 2005 amendment, Section 47-6-15(B)
now provides that “[a] party who is or may be adversely affected by a decision of the
board of county commissioners may appeal to the district court.” Thus, while the 1995
version of Section 47-6-15 would have expressly permitted the Tribe’s appeal from
the preliminary plat application approval, the current 2005 version of Section 47-6-15
no longer includes language expressly granting a statutory right of appeal from
decisions on preliminary plat applications.
{14} 	The Tribe contends on appeal that the removal of the “preliminary or final plat”
language from Section 47-6-15 reflects a legislative intent to “broaden . . . the

10
universe of county commission decisions subject to appeal.” 	We agree with the
Tribe’s argument based on other aspects of the 2005 amendment to the Act. 	The
primary 	objective 	of 	the 	2005 	amendment 	was 	to 	allow 	board 	of 	county
commissioners in certain class A counties to delegate subdivision review and approval
of preliminary plats and final plats to an administrative officer or to the planning
commission. See 2005 N.M. Laws, ch. 139, § 2(D); accord NMSA 1978, § 47-6-9(D)
(2005). While prior versions of Section 47-6-15 had only permitted appeals to the
board of county commissioner from “a decision of a delegate . . . in approving or
disapproving a final plat under summary review,” the Legislature removed the
qualifying language regarding final plats in 2005 to permit a much broader review,
thereby allowing for appeals to the board of county commissioners from “a decision
of a delegate.” Compare § 47-6-15(E) (1995) (emphasis added); and § 47-6-15(A)
(1998); with § 47-6-15(A) (2005). Subsection A of Section 47-6-15 also provides that
appeals to the district court are permitted from the board of county commissioners’
decision in an appeal from a delegate’s action. 	As we have noted above, the
Legislature amended Subsection B at the same time by removing the language
“approval and disapproval of preliminary and final plat.” See 2005 N.M. Laws, ch.
139, § 3; accord § 47-6-15(B) (2005). By removing the qualifying language from
Subsection B, we conclude that the Legislature essentially confirmed that appeals

11
from board decisions in delegation cases can be heard by district courts, thereby
indicating a legislative intent to broaden the scope of appealable decisions.
{15} 	We reject Tampico’s argument that the removal of the “preliminary or final
plat” language from Section 47-6-15(B) served to eliminate a statutory right of appeal
from decisions involving preliminary plats. If we were to employ this reasoning, we
would be pressed to conclude that appeals from final plats are also not appealable
since the language concerning final plats was also removed from Section 47-6-15.
Such a reading is untenable if one considers that one of the primary objectives of the
Act is to set forth a two-step subdivision review and approval process. The appeals
provision of the Act would seemingly be rendered meaningless if no statutory right
of appeal existed for decisions on preliminary or final plats. 	See Int’l Ass’n of
Firefighters v. City of Carlsbad, 2009-NMCA-097, ¶ 11, 147 N.M. 6, 216 P.3d 256
(“We seek to give meaning to all parts of the statute, such that no portion is rendered
surplusage or meaningless.”). 	We are not persuaded that the Legislature intended
such 	a 	result. 	See 	City 	of 	Deming 	v. 	Deming 	Firefighters 	Local 	4521,
2007-NMCA-069, ¶ 23, 141 N.M. 686, 160 P.3d 595 (“We . . . do not give effect to
legislative intent by reading a statute in a way that would render it meaningless.”).
{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 Section 39-3-1.1,
our administrative appeals statute, or Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M.

12
231, 824 P.2d 1033 (1992), and its progeny. A “final decision” is defined in Section
39-3-1.1(H)(2) as “an agency ruling that as a practical matter resolves all issues
arising from a dispute within the jurisdiction of the agency, once all administrative
remedies available within the agency have been exhausted.” “The general rule in New
Mexico for determining the finality of a judgment is that an order or judgment is not
considered final unless all issues of law and fact have been determined and the case
disposed of by the trial court to the fullest extent possible.” Kelly Inn No. 102, 113
N.M. at 236, 824 P.2d at 1038 (internal quotation marks and citation omitted).
{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 Section 39-3-1.1. Tampico only argues that an approval of a preliminary
plat is non-final because of the possibility that the final plat for the subdivision could
later be denied by the board of county commissioners. However, since the County
went on to approve the final plat for the subdivision at issue in this case, we decline

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to address this issue further. 	See City of Sunland Park v. Harris News, Inc.,
2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (noting that an appellate court
need not decide an issue that will have no practical effect on the current litigation and
would answer only a hypothetical set of circumstances).
{18} 	Drawing on the plain language of Section 47-6-15 and its legislative history,
we conclude that the Legislature intended to allow aggrieved parties the right to
appeal decisions on preliminary plat applications to the district court. We hold that
the district court erred in concluding that the Tribe could not appeal from the County’s
resolution approving Tampico’s preliminary plat application. We therefore reverse
the district court’s ruling that the Tribe’s appeal was from a non-final decision.
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.

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{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
meritorious, we conclude that the Tribe would be entitled to actual relief. Thus, the
Tribe’s appeal is not moot. This is the case notwithstanding the fact that, following
the denial of the Tribe’s motion to stay, the County proceeded to approve Tampico’s
final plat application during the pendency of the Tribe’s appeal in the district court.
Nothing in the Act prevents a subdivision developer from proceeding with the final

1Because the record is silent as to whether the notice of lis pendens was actually
cancelled as a result of the district court’s order, we can only speculate as to whether,
following final plat approval, Tampico proceeded to sell lots in the subdivision to
buyers who did not have notice of the Tribe’s appeal to this Court. See D’Antonio v.
Crowder, 2011-NMCA-016, ¶ 11, 149 N.M. 420, 249 P.3d 1243 (observing that “a
notice 	of 	lis 	pendens 	serves 	to 	give 	notice 	to 	any 	third 	parties
contemplating acquiring an interest in the property in question that title to the property
is subject to ongoing litigation”).
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plat review and approval process once a preliminary plat has been approved.
However, where an aggrieved party has timely filed an appeal from a decision on a
preliminary plat application, the subdivision developer undertakes such action during
the pendency of the appeal at his or her own risk. 	See City of Bowie v. Prince
George’s Cnty., 863 A.2d 976, 978 (Md. 2004) (holding that “an applicant may
proceed to seek final plat approval of a subdivision . . . during the time that the
preliminary plat approval remains under judicial review, but the applicant undertakes
such action at his own risk that the underlying preliminary approval may be
invalidated at a future time, thus, potentially voiding all subsequent governmental
actions dependent on that approval”).
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

16
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