May 22, 2018- Linda Filippi v. Board of County Commissioners of Torrance County, No. A-1-CA-35896

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Filed

Court of Appeals of New Mexico
3/22/2018 1:01 PM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _May 22, 2018

No. A-1-CA-35896

LINDA FILIPPI, ADDIE DRAPER,
SUSAN OVIATT, and CHARLES OVIATT,

Appellants-Respondents,
v.

BOARD OF COUNTY COMMISSIONERS
OF TORRANCE COUNTY, NEW MEXICO,

Appellee-Petitioner,

and

JBM LAND & CATTLE, LLC,
Intervenor-Petitioner.

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Matthew G. Reynolds, District Judge

Martin E. Threet & Associates
Joseph L. Romero
Albuquerque, NM

for Appellants-Respondents
Wallin Huss & Mendez, LLC

Dennis K. Wallin
Moriarty, NM

Ma

of the Clerk

[>

—_—

rk Reynolds

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for Appellee-Petitioner

Keleher & McLeod, P.A.
Thomas C. Bird
Albuquerque, NM

Hinkle Shanor, LLP
Benjamin F. Feuchter

Albuquerque, NM

for Intervenor-Petitioner

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OPINION

KIEHNE, Judge.

{1;, The Board of County Commissioners of Torrance County (the Board)
determined that JBM Land & Cattle, LLC (JBM) did not need a conditional use
permit under Torrance County’s zoning ordinance to grow medical cannabis on
property it owned in a rural section of the county. Several of JBM’s neighbors
challenged that decision in the district court, which overturned the Board’s decision
and held that JBM’s proposed use of the property was a “commercial use” for which
a conditional use permit was required. This court granted and consolidated the .
Board’s and JBM’s petitions to review the district court’s order. Concluding that
JBM’s proposed use of its property was a permissive use under the zoning ordinance,
we reverse the district court’s order and reinstate the Board’s decision.
BACKGROUND

{233 JBM purchased land in Torrance County for the purpose of growing medical
cannabis to harvest and sell in a dispensary outside the county. The land was in a
subdivision zoned as a “conservation district” that “protects and preserves areas
within the County which are characterized by their limited access, minimal
development, limitations on water resources, natural beauty, fragile environment and

native wildlife populations.” Torrance County, N.M. Zoning Ordinance (Zoning |

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Ordinance), § 8(A) (1990, amended 2008).
3} The section of the ordinance at issue first sets forth a number of “permissive
uses” of land that “are allowed” in a conservation district:

1. Low intensity agricultural operations such as livestock grazing
and related ranching activities; ...

2. Horse breeding, boarding and training;

3. Other low intensity production agriculture;

4. Cultivation and harvesting of plants and croplands;

5. Woodcutting and other activities related to harvesting trees;

6. Singular residential dwelling unit provided it is in compliance

with the requirements of the New Mexico Liquid Waste Disposal
Regulations; and |

7. Accessory uses and structures necessary to carry out the above-
listed permissive uses.

Zoning Ordinance, § 8(B).

{44 Second, the section at issue lists “[c]onditional [u]ses” that require a landowner
to obtain a conditional use permit from the Torrance County Planning and Zoning
Commission (Zoning Comission):

1. | Home occupations’ provided they are confined to the residence or

'The term “Home Occupation” is defined as “a business, commercial or
manufacturing activity that is clearly a secondary use of the premises for a dwelling
unit, and which results in a product or service for financial gain.” Zoning Ordinance,

§ 5(B)(16).

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accessory structure, are clearly a secondary use of the structure
and present no visual impact to neighbors as viewed from
adjoining property or public thoroughfare;

2, Small Bed and Breakfast operations limited to two guest
bathrooms;

3. Horseback riding stables, provided sufficient land exists to
support the number of animals maintained;

4. Dude ranch or other agricultural work experience operation;

5. Outfitters;

6. Essential public utility distribution structures; ...
7. Communications structures and facilities; and...
8. One supplemental residential dwelling unit allowed on a parcel

meeting district minimum standards; 2 supplemental residential
dwelling units allowed on a parcel of at least eighty acres or 1/8
section.
Zoning Ordinance, § 8(C).
{3} Third, the ordinance provides another tier of uses—“[c]ommercial uses”—that
are only allowed on a case-by-case basis, and states that when deciding whether the
commercial use will be permitted in a conservation district, the zoning commission’s
primary concern is “to minimize the environmental impact on the area.” Zoning
Ordinance, § 8(A). Although the ordinance does not specifically say that a

commercial use requires a conditional use permit, the parties do not seem to dispute

this point, and we note that the Board stated in a previous decision that commercial

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uses in a conservation district require a conditional use permit.

{6} JBM approached the Torrance County Zoning Officer, the individual
“designated as the principal administrator and enforcement officer of [the Torrance
County Zoning Ordinance,]” to ask whether a conditional use permit would be
required for it to grow medical cannabis on the land. Zoning Ordinance, § 5. The
Zoning Officer determined that because medical cannabis was “either a plant, a crop,
or both[,]” growing it would be considered a permissive use under the ordinance and
that no conditional use permit was required. JBM began cultivating 300 cannabis
plants, using water it hauled in from outside Torrance County, and sheltering the
plants in shade cloth “hoop houses” intended to decrease the amount of water needed |
to grow the plants.

{} JBM’s neighbors, Linda Filippi, Addie Draper, Susan Oviatt and Charles
Oviatt (Neighbors), challenged the Zoning Officer’s decision, arguing that JBM
should be required to obtain a conditional use permit and raising a number of
concerns regarding the cultivation of medical cannabis on the property. These
concerns included: that a previous decision of the Board was not followed; the
amount of water needed to grow the plants would be exorbitant; that crime in the area
could increase with the presence of a controlled substance and subject the public to

unnecessary risk; that the road leading to the property could be damaged; that the

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growing of cannabis is pharmaceutical manufacturing, not cultivation of crops; that
the use would be commercial; and that the use would be illegal due to the status of
cannabis as a Schedule 1 controlled substance under federal law. Neighbors raised
their concerns with the Zoning Commission, which took no action, and then they
appealed to the Board. After a public hearing, the Board denied Neighbors’ appeal, |
upholding the Zoning Officer’s determination that no conditional use permit was
required for JBM to cultivate medical cannabis in a conservation district. The Board
noted that the cultivation of medical cannabis was the cultivation of plants or crops,
making it a permissive use in a conservation district under the ordinance. It further
stated that “[c]ommercial use, as contemplated by Section 8 of the Zoning Ordinance,
does not include the production of plants and crops for sale offsite.”

{8} | Neighbors next appealed to the Seventh Judicial District Court under Rule
1-074 NMRA. The district court overturned the Board’s decision, stating that “[t]he
Commission did not follow the law in its interpretation of commercial use being
restricted to onsite sales.” It also stated that “this court determines as a matter of law
under de novo review that the sale of marijuana [cannabis] offsite is a commercial use
requiring a permit from the Torrance County Commission.” As part of the reasoning
for its decision, the district court determined that “[w]hen permissive uses are

commercial in nature and require building any structures, the owner of the property

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must apply to the Planning and Zoning Board for a permit. Then, on a case-by-case
basis, the Board can examine all the aspects affecting the Conservation District in
deciding whether to grant the permit.” The district court noted that the term
“structure,” as defined by the ordinance, did not differentiate between temporary or
permanent structures, and thus the district court considered the hoop houses on the
property to be “structures.”

‘93 The Board and JBM each filed petitions for a writ of certiorari to this Court
under Rule 12-505 NMRA, which we granted. We reverse the district court’s order |
and reinstate the Board’s decision.

DISCUSSION

I. Standard of Review

410} The standard of review that a district court employs to evaluate the decision of
an administrative agency is “(1) whether the agency acted fraudulently, arbitrarily or
capriciously; (2) whether based upon the whole record on appeal, the decision of the
agency is not supported by substantial evidence; (3) whether the action of the agency
was outside the scope of authority of the agency; or (4) whether the action of the
agency was otherwise not in accordance with law.” Rule 1-074(R) NMRA. “Upona
grant of a petition for writ of certiorari Tunder Rule 12-505 NMRA], the Court of

Appeals utilizes [this] same standard of review to review the decision of the district

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court.” San Pedro Neighborhood Ass’n v. Santa Fe Cty. Bd. of Cty. Comm rs, 2009- |
NMCA-045, J 11, 146 N.M. 106, 206 P.3d 1011 (citation omitted).
{11}, This administrative appeal requires us to decide whether the Board properly
interpreted the Zoning Ordinance, and thus our standard of review in this case is
“whether the action of the [Board] was otherwise not in accordance with law.” Rule
1-074(R)(4). “[T]he interpretation of a zoning ordinance is a question of law that we
review de novo, using the same rules of construction that apply to statutes.” San
Pedro Neighborhood Ass'n, 2009-NMCA-045, 9 12; Alba v. Peoples Energy Res.
Corp., 2004-NMCA-084, J 14, 136 N.M. 79, 94 P.3d 822. The following three rules
apply:
The first rule is that the plain language of a statute is the primary
indicator of legislative intent. Courts are to give the words used in the
statute their ordinary meaning unless the legislature indicates a different
intent. The court will not read into a statute or ordinance language which
is not there, particularly if it makes sense as written. The second rule is
to give persuasive weight to long-standing administrative constructions
of statutes by the agency charged with administering them. The third
rule dictates that where several sections of a statute are involved, they
must be read together so that all parts are given effect.
Id. {| 17 (internal quotation marks and citation omitted).
II. The District Court Did Not Exceed the Scope of Its Appellate Review

{12} We first address JBM and the Board’s contention that the district court ruled

on issues that had not been presented for appellate review. The Board argues that the

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district court exceeded the proper scope of appellate review because the only issue
that Neighbors raised in their statement of appellate issues was a claim that the
Board’s decision in this case was contrary to a decision that it had reached in another
case. JBM and the Board argue that the district court’s decision was outside the scope
of its appellate review because it was based on matters that Neighbors had not raised |
in their statement of appellate issues. But neither JBM nor the Board cite any
authority stating that the district court may not consider issues not specifically raised
in the statement of appellate issues, and therefore we will not consider this argument.
See In re Adoption of Doe, 1984-NMSC-024, J 2, 100 N.M. 764, 676 P.2d 1329
(“Issues raised in appellate briefs which are unsupported by cited authority will not
be reviewed by us on appeal.”).

413}. The Board also argues that Neighbors did not preserve their argument that
JBM’s land use was commercial in nature and therefore required a conditional use
permit. Similarly, JBM argues that the Board did not address whether the cultivation
of medical cannabis was commercial, and thus the district court erred in deciding
whether the use was commercial. Our review of the record, however, indicates that
Neighbors adequately preserved their argument. Both JBM and the Board understood
Neighbors to have raised the issue, because they both discussed it in their responses

to Neighbors’ statement of appellate issues. And the Board ruled on the issue in its

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findings of fact and conclusions of law when it stated that commercial uses do not
include the production of plants or crops for sale offsite. See Lopez v. Las Cruces
Police Dep’t, 2006-NMCA-074, § 6, 139 N.M. 730, 137 P.3d 670 (holding that an
issue was preserved for appellate review where the district court “was alerted to the
issue” and “decided” it).

{144 Further, JBM and the Board argue that the district court ruled that JBM needed
a building permit for the hoop houses on the property, and that this was improper
because no party raised that issue in the district court. However, we interpret the
district court’s order not as requiring a building permit, but as requiring a conditional |
use permit when a proposed use is commercial in nature and requires building any
structures. Thus, we consider the debate regarding structures to be intertwined with
the question of commercial use.

III. JBM’s Proposed Land Use Did Not Require a Conditional Use Permit

A. The Board’s Decision Was Consistent with the Language of the Zoning
Ordinance

15} The district court’s order stated that “to give effect to the objective and purpose
of the Conservation District, give effect to its entire text, and avoid an absurd result”
the Zoning Ordinance should be interpreted to mean that “[w]hen permissive uses are
commercial in nature and require building any structures, the owner of the property

must apply to the Planning and Zoning Board for a permit. Then, on a case-by-case

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basis, the Board.can examine all the aspects affecting the Conservation District in |
deciding whether to grant the permit.” The district court’s conclusion is, at the very
least, erroneous because the ordinance specifically provides that “[a]ccessory uses |
and structures necessary to carry out the above-listed permissive uses” are themselves
permissive uses in a conservation district. Zoning Ordinance, § 8(B)(7). Given that
the Board’s interpretation of the Zoning Ordinance is consistent with the express
wording contained within it, and the district court’s is not, the Board properly
determined that JBM’s use of shade cloth hoop houses on the property did not require
a conditional use permit.

B. The District Court Properly Employed the De Novo Standard But Erred
in Its Interpretation of “Commercial Use”

{16} We next consider whether the district court erred in applying a de novo
standard ofreview and by deciding that medical cannabis cultivation is a “commercial
use” under the Zoning Ordinance. The district court held that the Board’s definition
of “commercial use)” which excluded the growing of plants and crops for sale
offsite, was improper because it conflicted with this Court’s decision in San Pedro
Neighborhood Ass ’n,2009-NMCA-045, Jf 18-21. JBM and the Board argue that the
district court was limited to conducting a whole record review to determine whether
the facts supported the Board’s decision, and that it was improper for the district court

to undertake a de novo review of the ordinance. We conclude, however, that it was

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proper for the district court to apply a de novo standard of review when interpreting
the ordinance. That is because the very essence of the appellate role in the context of
statutory interpretation—even when undertaken by district courts exercising their
limited appellate authority—is based on de novo review. See State v. Trujillo, 2009-.
NMSC-012, 7 9, 146 N.M. 14, 206 P.3d 125 (stating principle that questions of
statutory interpretation are matters of law and are reviewed de novo).

417} Wealso conclude that the district court misinterpreted this Court’s holding in
San Pedro Neighborhood Ass’n. In that case, a local zoning ordinance prohibited all
“commercial uses” except for home-based businesses. 2009-NMCA-045, 17 A
landowner sought to stockpile gravel from a nearby mine on land subject to the
ordinance, and argued that it would not be a “commercial use” because he would not
be exchanging goods on the land itself. Jd. | 19. Because the landowner wanted to
stockpile the gravel so that it would be ready whenever his customers wanted it, we
held that the proposed stockpiling was a “commercial” use because it was “related to
the buying and selling ofthe mined materials.” /d. (internal quotation marks omitted).
In reaching this decision, we merely employed the rules of statutory construction, and
applied the plain, dictionary-based meaning of the term “commercial.” Id. JJ 18-20
(internal quotation marks omitted). However, our decision in San Pedro

Neighborhood Ass’n does not establish a definition of the term “commercial use” that

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would apply to every zoning ordinance enacted by every county in the state. San
Pedro Neighborhood Ass’n did not present the issue of whether applying the plain,
dictionary-based meaning of the term “commercial” would render other provisions
of the ordinance ineffective, but the present case does.

18} In this case, we begin by determining whether the plain, generic meaning of
“commercial use” applies, because the Zoning Ordinance itself does not define
“commercial use[.]” See Zoning Ordinance, § 5(B). The “intent” portion of Section 8
of the Zoning Ordinance states that “[c]ommercial uses will not be allowed [in a}
conservation district] except on a case by case basis in which the primary concern of
the Zoning Commission will be to minimize the environmental impact on the area.”
Zoning Ordinance, § 8(A). Section 8 of the Zoning Ordinance then specifically
enumerates some permissive uses that appear to be commercial in nature, including
low intensity agriculture; horse breeding, boarding and training; and woodcutting and
other activities related to harvesting trees. Zoning Ordinance, § 8(B). The inclusion
of these permitted activities suggests that the term “commercial use” should not be
given broad scope, as it was in San Pedro Neighborhood Ass’n, because doing so
would render ineffective the provision on permissive uses. See Blue Canyon Well
Ass'n v. Jevne, 2018-NMCA-004, § 9, 410 P.3d 251 (“We interpret statutes to avoid

rendering the Legislature’s language superfluous.” (internal quotation marks and

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citation omitted)). Under Neighbors’ interpretation, landowners would almost always
have to apply for a conditional use permit to engage in some of the tasks that the
ordinance lists as permissive uses. Additionally, many of the “conditional uses” listed
by the ordinance would involve onsite sales, such as bed and breakfast operations,
riding stables, dude ranches, and agricultural work experience operations. Zoning
Ordinance, § 8(C). Thus, the Board’s interpretation of the term “commercial use” as |
not including the cultivation of plants for sale offsite is reasonable, because it
harmonizes the “permissive uses” provision with the “conditional uses” and “intent”
provisions of the ordinance. See Blue Canyon Well Ass’n, 2018-NMCA-004, { 9
(“We consider all parts of the statute together, reading the statute in its entirety and
construing each part in connection with every other part to produce a harmonious
whole.” (alterations, internal quotation marks, and citation omitted)).

{19} Next we consider the second rule, which is to give persuasive weight to long-
standing administrative constructions of statutes by the agency charged with
administering them. San Pedro Neighborhood Ass’n, 2009-NMCA-045 4 12; Alba,
2004-NMCA-084, 4 22. Though the Board argues that it has always interpreted the
ordinance to mean that commercial uses do not include sale of crops or plants offsite,
the only evidence the Board presents regarding its interpretation of the term is the.

argument of counsel. With no evidence in the record, we decline to give weight to

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this factor. See Chan v. Montoya, 2011-NMCA-072, § 9, 150 N.M. 44, 256 P.3d 987
(“It is not our practice to rely on assertions of counsel unaccompanied by support in
the record. The mere assertions and arguments of counsel are not evidence.” (internal
quotation marks and citation omitted)).

720} Finally, when several sections of a statute are involved, we are to read them
together so that all parts are given effect. As set forth above, the Board’s
interpretation of the ordinance provides the most harmonious reading of the
ordinance.

CONCLUSION

1; We hold that the Board’s decision that the cultivation of medical cannabis is |
a permissive use under the ordinance that did not require a conditional use permit was
a reasonable interpretation ofits own ordinance. Accordingly, we reverse the decision
of the district court.

22} ITISSO ORDERED.

A ae

EMIL J. KYEHNE, Judge

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1 |WE CONCUR:
2 3
J. MILES HANISEE, Judge
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5 |STEPHEN G. FRENCH, Judge
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