February 4, 2019- Tanya Giddings v. SRT-Mountain Vista, LLC, No. A-1-CA-35643

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Opinion Number: Filed 2/4/2019 10:12 AM
Filing Date: February 4, 2019 MF
No. A-1-CA-35643 | Mark Reynolds
TANYA GIDDINGS, Bernalillo

County Assessor,
Petitioner-Petitioner,
Vv.

SRT-MOUNTAIN VISTA, LLC,
ROBERT FOX, and LINDA FOX,

Respondents-Respondents.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge

Robles, Rael & Anaya, P.C.
Charles H. Rennick
Marcus J. Rael, Jr.
Albuquerque, NM

for Petitioner

Sutin, Thayer & Browne, P.C.
Frank C. Salazar

Larry Curtis Vernon
Albuquerque, NM

for Respondent SRT-Mountain Vista, LLC
Vance, Chavez & Associates, LLC

Claud Eugene Vance

Albuquerque, NM

for Respondents Linda Fox and Robert Fox

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OPINION
VARGAS, Judge.
{4}, On motion of the Bernalillo County Assessor (Assessor), the district court
certified this appeal to resolve three issues arising from two consolidated district
court cases. First, we conclude the district court has appellate jurisdiction to review
decisions of the Bernalillo County Valuation Protests Board (Board) based upon the
Assessor’s petitions for writs of certiorari. Second, we determine the Assessor to be
an aggrieved party, entitling her to review of the Board’s decision under Rule 1-
075(B) NMRA. Third, we hold that residential property transfers between
individuals or their trusts, and their wholly-owned limited liability companies
constitute a “change of ownership” as defined by NMSA 1978, Section 7-36-21.2(E)
(2010).
I. BACKGROUND
23, The consolidated district court cases from which the Assessor appeals arose
from separate and unrelated decisions by the Board regarding the properties of two
taxpayers. As such, we set forth the relevant factual and procedural backgrounds of
each case leading up to consolidation in the district court.
A. The SRT-Mountain Vista, LLC Proceeding
33 SRT-Mountain Vista, LLC (SRT) is a New Mexico limited liability company

wholly owned by The Philip J. Salley Revocable Trust (Trust) and managed by

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Philip J. Salley. Prior to April 24, 2013, the SRT subject property was owned by the
Trust. On that date, Salley, as trustee of the Trust, executed a special warranty deed
granting the subject property to SRT for purposes of refinancing the property.

{43 Following the transfer from the Trust to SRT, the Assessor valued the subject
property at its “current and correct” taxable value for the 2014 tax year, without
applying any limitations on increased value provided for in Section 7-36-21.2(A).
SRT protested the Assessor’s valuation to the Board, arguing there was no “change
of ownership” as defined in Section 7-36-21.2(E), and that the subject property
therefore qualified for the limitation on property value accorded by Section 7-36-
21.2(A). The Board found “[t]he 2013 warranty deed clearly and indisputably
transferred fee ownership from the Trust to the LLC[,]” but that the transfer did not
constitute a “change [of] ownership” for purposes of Section 7-36-21.2(E) because
“the property had the same ultimate owner owning the property.”

B. The Robert and Linda Fox Proceeding

{5} Robert and Linda Fox created Fox Trust, a revocable inter vivos trust, to serve
as the sole owner of various LLCs. Prior to 2013, these LLCs owned the Fox subject
properties. On January 23, 2013, and February 5, 2013, the LLCs granted the subject
properties to Richard and Linda Fox as joint tenants for purposes of refinancing.
After refinancing the properties, Robert and Linda Fox granted the properties back

to the various LLCs that previously owned them.

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{6} Following these conveyances, the Assessor valued the subject properties at
their “current and correct” taxable values for the 2014 tax year, without regard to the
valuation limitation set forth in Section 7-36-21.2(A). Robert and Linda Fox
protested the Assessor’s valuation to the Board, arguing that notwithstanding the
transfers, there was no “change of ownership” under Section 7-36-21.2(E). The
Board found “[t]he 2013 warranty deeds clearly and indisputably transferred fee
ownership from the LLCs to [Robert and Linda Fox] and back to the LLCs/Trusts[,]”
but that the transfers did not constitute “changes of ownership” within the meaning
of Section 7-36-21.2(E) “because in each case the property had the same ultimate
owners owning the same proportion of each property.”

C. The District Court Proceedings

(7; | After the Board issued its decisions in both cases, the Assessor filed petitions
for writs of certiorari in the district court, seeking reversal of the Board’s decisions
on the grounds that they were arbitrary and capricious and not in accordance with
the law. Additionally, the Assessor successfully moved to consolidate both cases.
833 SRT and Robert and Linda Fox (collectively, Respondents) moved to dismiss
the Assessor’s petition, arguing the Assessor lacked the right to appeal the Board’s
decision under NMSA 1978, Section 7-38-28(A) (2015) (providing that “[a]

property owner may appeal an order made by a hearing officer or a county valuation

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protests board”), and Addis v. Santa Fe County Valuation Protests Board, 1977-
NMCA-122, 76, 91 N.M. 165, 571 P.2d 822 (holding that, for purposes of NMSA
1953, Section 72-31-28(A) (1973) (recompiled and amended as Section 7-38-28),
“[t]he county assessor may not appeal the order of the [valuation protests board];
only the property owner may appeal”). Anticipating the Assessor’s intent to invoke
the district court’s power to issue writs of certiorari under Article VI, Section 13 of
the New Mexico Constitution, Respondents further argued the Assessor had not
made the prima facie showing of entitlement to relief required on direct appeal.
Finally, Robert and Linda Fox argued the district court lacked original jurisdiction
under Article VI, Section 13 to hear a property tax matter invoking a constitutional
claim because the Assessor raised no such claim.

{9} | Without ruling on the Assessor’s petition or Respondents’ motions to dismiss,
the district court granted the Assessor’s motion for certification to this Court to
resolve the following issues: (1) whether the district court has jurisdiction to review
the Assessor’s petition under Article VI, Section 13 of the New Mexico Constitution;
(2) whether the Assessor may seek review under Rule 1-075; and (3) whether the
transfers at issue constitute “changes of ownership” for purposes of Section 7-36-

21.2(E). We accepted certification from the district court.

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II. DISCUSSION

A. The District Court Has Jurisdiction

{10} The threshold issue raised by the parties is whether the district court has
Jurisdiction to review the Assessor’s petition for writ of certiorari. The Assessor
contends the district court has appellate jurisdiction under Article VI, Section 13 of
the New Mexico Constitution, a premise Respondents refute. The question of
whether the district court has jurisdiction is a question of law we review de novo.
Smith v. City of Santa Fe, 2007-NMSC-055, § 10, 142 N.M. 786, 171 P.3d 300.

(ij) Article VI, Section 13 of the New Mexico Constitution grants appellate
Jurisdiction to the district court in “cases originating in inferior courts and tribunals
in their respective districts. . ., and supervisory control over the same[,]” and confers
upon the district court the “power to issue writs of... certiorari... in the exercise
of their jurisdiction; provided that no such writs shall issue directed to judges or
courts of equal or superior jurisdiction.” Jd.

412} “A writ of certiorari lies when it is shown that an inferior court or tribunal has
exceeded its jurisdiction or has proceeded i//egally, and no appeal or other mode of
review is allowed or provided.” Zamora v. Vill. of Ruidoso Downs, 1995-NMSC-
072, 917, 120 N.M. 778, 907 P.2d 182 (omission, internal quotation marks, and
citation omitted). Our Supreme Court “has long held that certiorari is the appropriate

process to review the proceedings of bodies acting in a judicial or quasi-judicial

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character[.]” /d. J 18 (omission, alterations, internal quotation marks, and citation
omitted); See Rule 1-075(A) (“This rule governs writs of certiorari to administrative
officers and agencies pursuant to the New Mexico Constitution when there is no
statutory right to an appeal or other statutory right of review.”). County valuation
protests boards are quasi-judicial bodies. See Addis, 1977-NMCA-122, 9 5 (“The
[valuation protests board] is a quasi-judicial body.”). In the absence of a direct right
to appeal from an adverse valuation protests board determination, or other mode of
review on behalf of a county assessor, we agree with the Assessor that certiorari is
the appropriate means of determining whether the Board exceeded its jurisdiction or
proceeded illegally in the underlying agency proceedings. See Rule 1-075(G)(2)
(requiring the district court to issue a writ of certiorari to review an agency action
where several preconditions are met, including that “the petitioner does not have a
right to review by appeal.”); Rainaldi v. Pub. Emps. Ret. Bd., 1993-NMSC-028, { 8,
115 N.M. 650, 857 P.2d 761 (explaining that “certiorari may be the only method
available for reviewing the actions of a state board where no statutory review is
provided”).

{13} It need be emphasized that, pursuant to Section 7-38-28(A), “[a] property
owner may appeal an order made by a... county valuation protests board by filing
an appeal pursuant to the provisions of [NMSA 1978,] Section 39-3-1.1” (1999)

(emphasis added); see § 39-3-1.1(A) (“The provisions of this section shall apply

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only to judicial review of agency final decisions that are placed under the authority
of this section by specific statutory reference.” (emphasis added)). Indeed,
interpreting a prior version of Section 7-38-28, we squarely held that “[t]he county
assessor may not appeal the order of the [valuation protests board]; only the property
owner may appeal.” Addis, 1977-NMCA-122, J 6; see NMSA 1953, § 72-3 1-28(A)
(1973) (“A property owner may appeal an order made by...a county valuation
protests board[.]”). We view the unavailability of a direct appeal on the Assessor’s
behalf as an essential element of her right to pursue a writ of certiorari, and not, as
Respondents would have it, as an absolute bar to the issuance of such a writ.
Respondents having cited no direct authority supporting their contrary proposition,
we must assume that no such authority exists. Jn re Adoption of Doe, 1984-NMSC-
024, 7 2, 100 N.M. 764, 676 P.2d 1329.

B. The Assessor Is an Aggrieved Party Under Rule 1-075(B)

{143 Having concluded the Assessor may seek judicial review of the Board’s
decision by way of a petition for writ of certiorari to the district court, we next
address whether the Assessor is an “aggrieved party” as required by Rule 1-075(B),
which “governs writs of certiorari to administrative officers and agencies pursuant
to the New Mexico Constitution when there is no statutory right to an appeal or other

statutory right of review.” Rule 1-075(A).

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{15} Rule 1-075(B)(1) provides that “[a]n aggrieved party may seek review of a
final decision or order of an agency by . .. filing a petition for writ of certiorari in
the district court[.]” The rule further requires that the district “court shall issue a writ
of certiorari to review the action of the agency if. . . the petition makes a prima facie
showing ...that the petitioner is entitled to relief].]” Rule 1-075(G)(2).
Respondents argue the Assessor is not an aggrieved party under the rule and
therefore cannot make a prima facie showing of entitlement to relief.

{16} Generally speaking, an aggrieved party is “a party whose interests are
adversely affected.” State v. Nehemiah G., 2018-NMCA-034, J 15, 417 P.3d 1175
(internal quotation marks and citation omitted), cert. denied, 2018-NMCERT-___
(No. S-1-SC-36974, Apr. 26, 2018). In support of their argument that the Assessor
is not an “aggrieved party” and therefore lacks standing, Respondents cite to State
ex rel. Overton v. New Mexico State Tax Commission, 1969-NMSC-140, 4 10, 81
N.M. 28, 462 P.2d 613 (stating, in the context of an action for declaratory judgment,
that the county assessor “has no personal stake in the matter”). Overton held that a
county assessor did not have standing to bring a declaratory judgment action
challenging the constitutionality of a tax-exemption statute because no justiciable
controversy was present. See id. J 1, 10, 19. However, as our Supreme Court has
since clarified, Overton’s holding is properly limited to the facts in that declaratory

judgment action, and does not preclude review of a justiciable controversy arising

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from a taxpayer’s “claim of entitlement to a tax exemption.” See El Castillo Ret.
Residences v. Martinez, 2017-NMSC-026, 918, 401 P.3d 751. Similar to the
situation presented in E/ Castillo, a justiciable controversy exists here regarding
Respondents’ claim of entitlement to the benefit of the limitation on valuation
increases set out in Section 7-36-21.2(E), a claim which, as was true of the claim
presented in E/ Castillo, is not theoretical in nature and in whose outcome the
Assessor “does have an interest.” Jd. See NMSA 1978, § 7-36-2(A) (1995) (“The
county assessor is responsible and has the authority for the valuation of all property
subject to valuation for property taxation purposes in the county[.]”); NMSA 1978,
§ 7-36-16(A) (2000) (“County assessors shall determine values of property for
property taxation purposes[,] .. . implement a program of updating property values
so that current and correct values of property are maintained[,] and shall have sole
responsibility and authority at the county level for property valuation
maintenance[.]”); see also Robinson v. Bd. of Comm’rs of Cty. of Eddy, 2015-
NMSC-035, 9 10-11, 360 P.3d 1186 (“The Property Tax Code . . . makes a general
grant to county assessors of authority over valuation of property. .. . Clearly, the
Legislature has reposed in county assessors the responsibility for maintaining a
program of updating property values to reflect current and correct values of
property.” (internal quotation marks and citation omitted)); cf Addis, 1977-NMCA-

122, 4 5 (concluding that the county assessor, as the party defending the valuation

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of property, is the adversarial party to the aggrieved property owner). It is the
Assessor who is in the best position to challenge the Board’s decision limiting her
authority in instances where residential properties are transferred between
individuals or their trusts and the LLCs created to hold title to those properties. See
El Castillo Ret. Residences, 2017-NMSC-026, { 18 (concluding that the assessor has
an interest in the outcome of a taxpayer’s claim of entitlement to a tax exemption).
We therefore conclude the Assessor is an aggrieved party under both Rule 1-075 and
our standing jurisprudence in light of the facts and posture of this case.

C. The Transactions at Issue Constitute Changes of Ownership Under
Section 7-36-21.2(E)

{17} Respondents next argue the Assessor failed to make a prima facie showing of
entitlement to relief because she did not show the transfers at issue constituted
“changes of ownership” for purposes of Section 7-36-21.2(E) such that the Board’s
decision was not in accordance with the law or was arbitrary, capricious, or
fraudulent. To determine whether the Assessor’s petition makes a prima facie
showing of entitlement to relief, we must first resolve the legal questions raised in
the Assessor’s petitions.

{18} Section 7-36-21.2(A) sets forth limitations on the percentage by which the
value of residential property may be increased from the prior tax year. The statute
exempts from those valuation limitations the “valuation of a residential property in

any tax year in which . . . a change of ownership of the property occurred in the year
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immediately prior to the tax year for which the value of the property for property
taxation purposes is being determined[.]” Section 7-36-21.2(A)(3)(a). The statute
further defines a “change of ownership”:

As used in this section, “change of ownership” means a transfer to a
transferee by a transferor of all or any part of the transferor’s legal or equitable
ownership interest in residential property except for a transfer:

(1) to a trustee for the beneficial use of the spouse of the
transferor or the surviving spouse of a deceased transferor;

(2) to the spouse of the transferor that takes effect upon the death
of the transferor;

(3) that creates, transfers or terminates, solely between spouses,
any cO-owner’s interest;

(4) to a child of the transferor, who occupies the property as that
person’s principal residence at the time of transfer; provided that the
first subsequent tax year in which that person does not qualify for the
head of household exemption on that property, a change of ownership
shall be deemed to have occurred;

(5) that confirms or corrects a previous transfer made by a
document that was recorded in the real estate records of the county in
which the real property is located;

(6) for the purpose of quieting the title to real property or
resolving a disputed location of a real property boundary;

(7) to a revocable trust by the transferor with the transferor, the
transferor’s spouse or a child of the transferor as beneficiary; or

(8) from a revocable trust described in Paragraph (7) of this
subsection back to the settlor or trustor or to the beneficiaries of the
trust.

Section 7-36-21.2(E).
{19} The question of whether the property transfers at issue constitute “changes of
ownership” is one of statutory interpretation. “The meaning of language used in a

statute is a question of law that we review de novo.” Baker v. Hedstrom, 2012-

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NMCA-073, 4 9, 284 P.3d 400 (internal quotation marks and citation omitted); see
Rayellen Res., Inc. v. N.M. Cultural Props. Review Comm., 2014-NMSC-006, { 16,
319 P.3d 639 (explaining that although the court generally defers to an agency’s
interpretation of an ambiguous statute or regulation when the agency is charged with
administering it and the statute or regulation implicates the agency’s expertise, “we
will not defer to the agency’s . . . statutory interpretation, as this is a matter of law
that we review de novo” (alteration, internal quotation marks, and citation omitted)).
“The principal objective in the judicial construction of statutes is to determine and
give effect to the intent of the Legislature.” Baker, 2012-NMCA-073, 4 10
(alteration, internal quotation marks, and citation omitted). “We rely on rules of
construction as aids in determining legislative intent[.]” Jd.

20} “The first guiding principle in statutory construction dictates that we look to
the wording of the statute and attempt to apply the plain meaning rule, recognizing
that when a statute contains language which is clear and unambiguous, we must give
effect to that language and refrain from further statutory interpretation.” United
Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, 7 9, 148 N.M. 426, 237
P.3d 728 (alteration, internal quotation marks, and citations omitted); see NMSA
1978, § 12-2A-19 (1997) (“The text of a statute or rule is the primary, essential
source of its meaning.”). “We will not depart from the plain wording of a statute,

unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that

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the Legislature could not have intended, or to deal with an irreconcilable conflict
among statutory provisions.” Regents of the Univ. of N.M. v. N.M. Fed’n of
Teachers, 1998-NMSC-020, 4 28, 125 N.M. 401, 962 P.2d 1236. Furthermore, “we
will not read into a statute or ordinance language which is not there, particularly if
it makes sense as written.” /d. (internal quotation marks and citation omitted).

421} Section 7-36-21.2(E) expressly carves out eight exceptions to the definition
of “change of ownership,” none of which include transfers between individuals or
their trusts and LLCs formed to hold title to their properties. Further, contrary to
Respondents’ position at oral argument, nothing in Section 7-36-21.2(E) indicates
that the Legislature intended to provide a non-exhaustive list of definitional
exceptions that included other unenumerated types of transfers. Compare NMSA
1978, § 14-2-1(A) (2011) (providing that “[e]very person has a right to inspect
public records of this state except [eight specifically enumerated exceptions]”
(emphasis added)), with NMSA 1978, § 30-31-6(C)(19) (2018) (designating as
Schedule I controlled substances “synthetic cannabinoids, including” eleven
specifically enumerated synthetic cannabinoids (emphasis added)), and Rule 11-
404(B)(2) NMRA (providing that evidence of a crime, wrong, or other act “may be
admissible for another purpose, such as proving” nine permitted uses (emphasis

added)). Had the Legislature intended the list of exceptions provided in Section 7-

36-21.2(A) to be non-exclusive, it presumably would have included appropriate

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language to that effect, as is found in the examples cited above. Given the plain
language of the statute, and the conspicuous absence of any limiting language, we
are not persuaded that the Legislature intended to include exceptions to its definition
of “change of ownership” beyond those exceptions expressly delineated. See Baker,
2012-NMCA-073, { 30 (explaining that “the canon of statutory construction known
as expressio unius est exclusio alterius [means] the inclusion of one thing implies
the exclusion of another”). Accordingly, we conclude that a transfer of residential
property between an LLC’s members and the LLC itself constitutes a “a change of
ownership” within the meaning of Section 7-36-21.2(A)(3)(a), subjecting the
property to a valuation based upon its “current and correct value[,]” regardless of
whether the proportional beneficial interests remain intact. This conclusion is
consistent with both the distinct legal status afforded to an LLC, see NMSA 1978,
§ 53-19-10(A) (1993) (“A limited liability company formed pursuant to the Limited
Liability Company Act is a separate legal entity.”), and the Legislature’s broad
definition of “change of ownership” as a transfer “of all or any part of the transferor’s
legal or equitable ownership interest[.]” Section 7-36-21.2(E) (emphasis added).

22} Respondents, however, argue that applying the plain language of Section
7-36-21.2(E) would result in an absurdity not intended by the Legislature. In
particular, Respondents argue that a literal application of the statute would remove

the statutory limitation on valuation increases whenever a homeowner refinances,

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grants an easement over, incurs a lien on, or in any way conveys a legal or equitable
ownership interest in his or her property. Respondents Robert and Linda Fox urge
us to follow the lead of California and Oklahoma, which have exempted similar
transfers from their equivalent definitions of “change of ownership” for purposes of
their respective counterpart limitations on property valuation increases. See Cal.
Code Regs. tit. 18, § 462.180(b)(2) (West 2018); In re Assessments for the Year 2005
of Certain Real Prop. Owned by Askins Props., L.L.C., 2007 OK 25, J 16, 161 P.3d
303. However, the California exemption of such transfers from its definition of
“change of ownership” is founded upon an express statutory provision to that effect,
a delineated exemption not present in Section 7-36-21.2(E). See Cal. Rev. & Tax.
Code § 62(a)(2) (West 2018) (exempting from “change of ownership” “[a]ny
transfer between an individual or individuals and a legal entity or between legal
entities ... that results solely in a change in the method of holding title to the real
property and in which proportional ownership interests of the transferors and
transferees, whether represented by stock, partnership interest, or otherwise, in each
and every piece of real property transferred, remain the same after the transfer”).
With respect to the Oklahoma exemption, that state’s Supreme Court has held that
such transfers are exempt based on constitutional and statutory provisions textually
distinct from Section 7-36-21.2(E). Askins Props., L.L.C., 2007 OK 25, § 9. While

Article 10, Section 8(B) of the Oklahoma Constitution excludes property that is

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“transferred, changed or conveyed to another person” from limitations on value
increases, there is an implementing statutory provision, Okla. Stat. tit. 68,
§ 2802.1(A)(1), (4)(g) (2002, amended 2014), found constitutional in Askins, which
specifically exempts property that “is transferred from a person to a... limited
liability company . . . of which the transferor . . . [is] the only owner[.]” Thus, little
guidance is provided by those states’ jurisprudence and statutes. See generally State
v. Office of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, § 28, 285 P.3d 622
(“[W]hen relying on [out-of-state] authority we must ensure that another court is not
relying on language that is absent from our statute or that the language of the statute
differs so greatly from ours that it serves a different purpose.”).

23}, To the extent that Respondents argue that a strict application of the plain
language of Section 7-36-21.2(E) leads to an absurd result here in the form of a tax
increase even though only the method of holding title to property changed, not the
identity of the individual owners, that is a matter to be addressed by the Legislature,
not the courts.! We therefore conclude the transfers at issue constitute “changes of

ownership” as contemplated by the Legislature.

' We note the Legislature considered, but did not pass, a bill in 2015 that
would have included the transfers at issue in Section 7-36-21.2(E)’s list of
exceptions. See H.B. 247, 52nd Leg., Ist Sess. (N.M. 2015) (adding as an exception
to “changes of ownership” a transfer “that only changes the manner of holding title
and does not change the proportional beneficial interests in the residential property
held before the transfer”); cf’ State ex rel. King v. Lyons, 2011-NMSC-004, ff 9,
47-50, 149 N.M. 330, 248 P.3d 878 (noting that “the Legislature . . . is well informed

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D. The Assessor Made a Prima Facie Showing of Entitlement to Relief

24; Having resolved in favor of the Assessor the questions of law upon which her
petitions are based, we turn now to the sufficiency of her showing of entitlement to
relief under Rule 1-075(G)(2) (requiring the district court to issue a writ of certiorari
if, among other things, the petition “makes a prima facie showing that ... the
petitioner is entitled to relief”). We observe initially that “review by certiorari will
lie when it is shown that the inferior court or tribunal has exceeded its jurisdiction
or has proceeded illegally,” Regents of University of New Mexico v. Hughes, 1992-
NMSC-049, 4 19, 114 N.M. 304, 838 P.2d 458, with the term “illegally” properly
interpreted to be synonymous with “arbitrary, unlawful, unreasonable, capricious, or
not based on substantial evidence.” Jd.; see Rule 1-075(R) (explaining that the
district court shall determine whether the agency’s action was (1) fraudulent,
arbitrary, or capricious; (2) not supported by substantial evidence in the record; (3)
outside the scope of the agency’s authority; or (4) otherwise not in accordance with

the law); Zamora, 1995-NMSC-072, 9 17 (explaining that “[jJudicial review of

about the law and that its legislation is usually intended to change the law as it
previously existed[,]” and explaining that the voters’ rejection of a constitutional
amendment authorizing the Land Commissioner to exchange public lands reflects
“the lack of legal authority to conduct unrestricted land exchanges” (internal
quotation marks and citation omitted)). But cf. State ex rel. Udall v. Pub. Emps. Ret.
Bd., 1994-NMCA-094, 4 20, 118 N.M. 507, 882 P.2d 548 (“Under our system of
government, law is not made by defeating bills or proposed constitutional
amendments.”), rev ’d on other grounds, 1995-NMSC-078, 120 N.M. 786, 907 P.2d
190.

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administrative action requires a determination whether the administrative decision
is arbitrary, unlawful, unreasonable, capricious, or not based on substantial
evidence” (omission, internal quotation marks, and citation omitted)); N.M.
Regulation & Licensing Dep’t v. Lujan, 1999-NMCA-059, 4 8, 127 N.M. 233, 979
P.2d 744 (“[A]n agency’s decision is not in accordance with the law if the decision
or action taken by the agency was based on an error of law.”); High Ridge Hinkle
Joint Venture v. City of Albuquerque, 1994-NMCA-139, 4 31, 119 N.M. 29, 888
P.2d 475 (“The district court should have granted the writ [of certiorari] if the [city
[c]ouncil had acted illegally, as would be the case if the [c]Jouncil’s interpretation of
the zoning code was incorrect.) (citation omitted).

25} The Board determined that the real property transfers at issue were not
“changes of ownership” for purposes of Section 7-36-21.2(E) because the properties
had the same “ultimate” owners. However, as we have stated above, the Board’s
conclusion was clearly erroneous since the underlying transfers constituted “changes
of ownership” as that term is defined by the plain language of the statute.
Accordingly, the Board’s decisions in both cases were not in accordance with the
law, and the Assessor has satisfied the requirement of Rule 1-075(G)(2) that she
make a prima facie showing of entitlement to relief. We therefore need not address

whether the Board’s decision was arbitrary and capricious.

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2

3

4I| “

5

6

7

oo

10

11
12

13
14

Il. CONCLUSION

26} Having concluded the district court has jurisdiction, the Assessor may seek
review of the Board’s decision under Rule 1-075, and the transfers at issue constitute
changes of ownership” for purposes of Section 7-36-21.2(E), we remand to the
district court with instructions to vacate the Board’s decisions and remand the
matters to the Board for further proceedings consistent with this opinion.

27; ITISSO ORDERED.

JULIE J. VARGAS, Judge

WE CONCUR:

a

M. MONICA ZAMO Rs Ch ief Judge
d- Di
J. MILES HANISEE, Judge

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