April 28, 2010 – Andalucia Development Corporation, Inc., a New Mexico corporation, and SPS Investments, LC, a New Mexico limited liability company v. The City of Albuquerque, a municipal corporation, and The City of Albuquerque Council, the governing body of the City of Albuquerque, No. 28,407

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OCR transcription for search; preserved printed pages are authoritative

INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: April 28, 2010

NO. 28,407

ANDALUCIA DEVELOPMENT
CORPORATION, INC., a New Mexico
Corporation, and SPS INVESTMENTS, LC,
a New Mexioo limited liability company,

Appellees-Respondents,
V.

THE CITY OF ALBUQUERQUE, a numicpal
corporation, and the ALBUQUERQUE CITY
COUNCIL, the governing body of the City of
Albuquerque,

Appellants- Petitioners.

ON A WRIT OF CERTIORARI FROM THE DISTRICT COURT OF
BERNALILLO COUNTY
William F. Lang, District Judge

Rodey, Dickason, Sloan,
Akin & Robb, P.A.
John P. Salazar

Edward R. Ricco
Amanda C. Sanchez,

Albuquerque, NM
for Appellees

Robert W. White, City Attomey

Mark A. Hirsch, Deputy City Attorney
Kevin J. Curran, Assistant City Attorney
Albuquerque, NM
for Appellants

1The term, “plat,” as used in this opinion, is defined as “[a] graphic and written
description of a lot or lots with survey reference ties to permanent survey
monuments.” ROA § 14-14-1-6. In order to obtain subdivision approval, a developer
must submit three such plats: a sketch plat, followed by a preliminary plat, and then
a final plat. ROA § 14-14-3-2(B) (1974). The sketch plat is first submitted to the
City, which makes recommendations that are later reflected in the preliminary plat.
When the preliminary plat is approved, the City has made a “commitment . . . that a
final plat conforming to the approved preliminary plat and any conditions will be
approved.” 	ROA § 14-14-3-4(A) (2007). The final plat is the recorded, “legal
instrument which will allow transfer of land within the subdivision to take place.”
ROA § 14-14-3-5(A)(1) (1974).
OPINION
KENNEDY, Judge.
{1} 	Pursuant to a writ of certiorari, requested by the City of Albuquerque, we
review the district court’s application of a municipal impact fee ordinance and its
attendant regulations. The ordinance at issue, passed on December 10, 2004, by the
City of Albuquerque and the Albuquerque City Council (City), exempts developers
from paying impact fees when they possess development rights that vested prior to the
ordinance’s date of enactment. City of Albuquerque, N.M., Code of Ordinances § 14-
19-1-12(D) (2004) (amended 2009) (hereinafter ROA). 	Respondents, Andalucia
Development Corporation, Inc., and SPS Investments, LC (Developers), argue they
were improperly required to pay the fee. Developers claim that under the ordinance,
a developer’s rights in property vest at the time the city’s Environmental Planning
Commission (EPC) approves an un-platted subdivision site plan.1 The district court
agreed. We reverse.

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{2} 	As we explain below, our interpretation indicates that a developer’s rights vest
under the ordinance when the city approves a reliable platting pattern for a
subdivision. The district court improperly held that Developers’ rights vested prior
to the enactment of the ordinance and incorrectly found that Developers had received
“approval” under Brazos Land, Inc. v. Board of County Commissioners, 115 N.M.
168, 170, 848 P.2d 1095, 1097 (Ct. App. 1993), creating common law vested rights.
Such an analysis confuses the common law doctrine of vested rights with the vested
rights contemplated by the ordinance. As a result, we hold that the court erroneously
invalidated the ordinance’s two-year sunset provision.
BACKGROUND
{3} 	The facts of this case are undisputed. In March 2001, the EPC approved a site
plan for subdivision of lands owned by Ray A. Graham, III, which included eight
individual tracts. Although no tracts were platted, the approved plan established tract
boundaries, vehicle access, bicycle and trail access, public transit access, internal
circulation 	requirements, 	building 	heights, 	setbacks, 	and 	common 	landscape
standards. It provided zoning for the entire development and annexation of a small
portion from Bernalillo County to the City. The plan stated that its goal would be to
eventually plat each tract. 	Thereafter, the development proceeded in three phases.
Phase 1 received approval in August 2003, and Phase 2 received approval in

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November 2004. But Phase 3, the property at issue in this case, was not approved
until August 2005, more than seven months after passage of the impact fee ordinance.
{4} 	The EPC approved Phase 1 in August 2003 as an amendment to the original site
plan for subdivision. 	That amendment indicated Phase 1’s lot platting and further
subdivided Tract 1 into four smaller tracts that were designated 1A through 1D. It
also designated Tracts 1B through 1D as “bulk [t]racts for future development.” It
is Tract 1C with which we are concerned in this case. 	In September 2003, the
property 	was 	sold 	to 	Developers, 	which 	then 	invested 	in 	further 	plans 	and
improvements, including the submission of two additional amendments to the original
site plan for subdivision covering Phases 2 and 3. 	In November 2004, the EPC
approved the first of those, which was a second amendment to the original site plan
for subdivision. It designated a platting pattern for Phase 2 of the development and,
like the amendment to develop Phase 1, designated Tracts 1C through 1D as “bulk
[t]racts for future development.”
{5} 	The next month, on December 10, 2004, the City passed the ordinance at issue
in this case. That ordinance requires developers to pay impact fees for development
of new property within the city and exempts those whose rights vested prior to its
enactment. 	ROA § 14-19-1-1; § 14-19-1-12(D). 	In August 2005, Developers
received the third and final approval for amendment of the original site plan. That

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amendment provides for Phase 3 of the development and designates a platting pattern
and subdivision layout for Tract 1C. On November 30, 2005, the City determined that
Developers had vested rights in Phases 1 and 2 prior to the enactment date of the
ordinance because the amendments covering those phases indicated platting patterns
for individual lots. Property covered by Phases 1 and 2 was therefore exempt from
impact fees. But because platting for Phase 3/Tract 1C was not approved until after
enactment of the ordinance, the City determined that Developers’ rights in that
property were not vested within the exception. Thus, the City notified Developers that
it would be required to pay impact fees for Phase 3/Tract 1C. Developers objected.
They argued that the March 2001 original site plan for subdivision gave them vested
rights in Phase 3/Tract 1C, but the City’s Impact Fee Administrator (IFA) was
unpersuaded. As he explained, “the original [March 2001] site development plan for
subdivision was for a bulk land plat [and such a plan] does not rise to the level of a
right to proceed with development because it only defines the zoning parameters or
entitlements for a parcel—the parcel will require further review and approval to
acquire . . . development rights.”
{6} 	Developers challenged the IFA’s decision and appealed to the EPC. 	Again,
Developers argued that the EPC’s March 2001 approval of the original site plan for
subdivision conferred vested rights. 	As a result, their rights in Phase 3/Tract 1C

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vested prior to the enactment of the impact fee ordinance and should trigger the
exemption. 	This argument failed to persuade the EPC, which concluded that such
vested rights “are those that would allow a property owner to proceed with
development subject to technical compliance with the approved site development
plan.” 	Bulk land subdivision plans, like the one submitted in March 2001 do not
confer development rights
because they require . . . further intermediary approval to proceed with
development, and are therefore not the type of approval that establishes
vested rights. . . . 	The approval of a bulk land subdivision or a site
development plan for a bulk land subdivision does not result in a vested
right under the impact fee ordinances.
Those approvals do not “allow a property owner to proceed to develop” the property.
{7} 	Developers renewed their argument on appeal to the City, which appointed an
independent hearing officer to consider the matter. The hearing officer recommended
that the City reverse the decision of the EPC, stating that “the number of future
approvals necessary [for development of the property] is irrelevant.” 	The original
approval of Developers’ site plan for subdivision was, he stated, sufficient for impact
fee exemption under the ordinance. 	However, despite the hearing officer’s
recommendation, the City decided to hold its own hearing, and it did so on August 21,
2006. Afterwards, it published a decision along with formal findings of fact, finding
that “[a] development that [has] not progressed to the point of having committed to

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any specific lot configuration, location or layout should not be considered to have a
vested right for purposes of avoiding impact fees.” “[W]ith respect to the land now
at issue [Phase 3/Tract 1C] there was no approval [prior to the ordinance’s enactment]
for any lots . . . such as were intended to constitute a vested right.” Thus, stating that
the interpretation of the IFA was entitled to deference, the council affirmed the EPC
decision denying the exemption to Phase 3/Tract 1C and disregarded the conclusion
of the independent hearing officer.
{8} 	Developers again sought review, this time in the district court. Oral arguments
were held on January 8, 2008, and the court reviewed the case on its merits, reversing
the decision of the city council. In its written order, it found that Developers’ rights
in Phase 3/Tract 1C of the project vested at the time the EPC approved the original
site plan for subdivision in March 2001. The court concluded that Developers’ rights
were vested under common law because Developers “purchased Tracts 1 and 2
subsequent to [March 2001] in reliance upon the approved Original Site Plan and
substantially changed [their] position by expending millions of dollars in furtherance
of developing [those tracts] prior to” enactment of the impact fee ordinance. 	The
court cited Brazos Land in support of its decision. That case provides a two-pronged
test for whether a party’s rights are vested: 	“First there must be approval by the
regulatory body, and second, there must be a substantial change in position in reliance

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thereon.” Brazos Land, 115 N.M. at 170, 848 P.2d at 1097. The court concluded that
both prongs were met.
{9} 	The court also found that Developers’ rights vested under the language of the
impact fee ordinance itself. 	Interpreting the ordinance, it concluded that “[v]ested
rights recognized under the Impact Fees Ordinance are consistent with the common
law vested rights in the development of Tracts 1 and 2, to which [Developers are]
entitled.” 	The original March 2001 site plan for subdivision “establishe[d] a
development right,” and, as stated in the Albuquerque Development Process Manual
(DPM), a vested right “shall mean development rights.” Thus, because Developers
had a “development right,” they also had “vested rights under the Impact Fees
Ordinance.”
{10} 	Finally, the district court analyzed the ordinance’s expiration provision. 	It
states, “[v]ested rights arising from approvals shall expire if a building permit has not
been issued within two years from the effective date and impact fees may be assessed
and collected thereafter.” ROA § 14-19-1-12(D). Because common law vested rights
are “established rights which cannot be taken away arbitrarily,” the court concluded,
“[t]he Expiration Provisions in the [ordinance] and the DPM are void and of no
effect.” Thus, “the [City’s d]ecision to uphold the assessment of impact fees is not in
accordance with applicable law, and therefore, should be reversed.”

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{11} 	On certiorari, the City argues that the decision was in accordance with
applicable law. 	The district court erred, the City claims, and its order should be
reversed. We agree because (1) the district court’s interpretation of the ordinance was
incorrect; (2) Developers did not meet the test for common law vested rights set out
in Brazos Land and, at any rate, because a common law vested rights analysis is
inapplicable to the vested rights exception in the ordinance; and (3) the district court
improperly invalidated the ordinance’s two-year sunset provision.
DISCUSSION
A. 	STANDARD OF REVIEW
{12} 	On certiorari in an administrative appeal of this type, we apply “the same
statutorily defined standard of review as the district court.” 	Lantz v. Santa Fe
Extraterritorial Zoning Auth., 2004-NMCA-090, ¶ 5, 136 N.M. 74, 94 P.3d 817.
Thus, this Court may reverse decisions where “the administrative entity . . . acted
fraudulently, arbitrarily, or capriciously; if the decision was not supported by
substantial evidence in the whole record; or if [it] did not act in accordance with the
law.” Miller v. Bd. of County Comm’rs, 2008-NMCA-124, ¶ 16, 144 N.M. 841, 192
P.3d 1218 (alteration in original) (internal quotation marks and citation omitted). We
“conduct the same review of an administrative order as the district court sitting in its
appellate capacity, while at the same time determining whether the district court erred

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in the first appeal.” 	Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n,
2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806 (filed 2002). We review any legal
interpretations of the lower court de novo. Gallup Westside Dev., LLC v. City of
Gallup, 2004-NMCA-010, ¶ 10, 135 N.M. 30, 84 P.3d 78 (filed 2003).
B. 	ALBUQUERQUE’S IMPACT FEE ORDINANCE
{13} 	Under the New Mexico Development Fees Act, municipalities may assess
impact fees on new development within their jurisdiction. 	NMSA 1978, § 5-8-3
(2001) (authorizing the imposition of impact fees for municipalities); NMSA 1978,
§ 5-8-2(I) (1993) (defining an impact fee as “a charge or assessment imposed by a
municipality or county on new development in order to generate revenue for funding
or recouping the costs of capital improvements or facility expansions necessitated by
and attributable to the new development”); ROA § 14-19-(1-4)-4. On December 10,
2004, the City enacted an ordinance imposing such fees. 	See DPM ch. 18,
§ 3(B)(2)(c). 	In order to compensate for a given development’s impact on public
safety, roadways, drainage, and parks, see ROA § 14-19-(1-4)-6(A) (“Findings and
Declarations”), the ordinance imposes fees on all new developments according to
several criterion. ROA § 14-19-(1-4)-13(D)(1)-(4).
{14} 	As stated above, the ordinance exempts developers from paying the fee as long
as their development rights vested prior to December 10, 2004. ROA § 14-19-(1-4)-

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12(D). The exemption provides,
Notwithstanding any other provision of § 14-19-1-1, development
approvals resulting in vested rights acquired prior to the enactment date
of § 14-19-1-1 are deemed to have satisfied the requirements of
§ 14-19-1-1 and no additional impact fees shall be assessed or collected
against such properties under § 14-19-1-1. Vested rights arising from
approvals shall expire if a building permit has not been issued within two
years from the effective date and impact fees may be assessed and
collected thereafter.
ROA § 14-19-1-12(D). In order to implement the ordinance, the City promulgated
regulations that further define when a developer’s rights vest. In pertinent part, those
regulations begin with a simple restatement of the general exception from the city
ordinance.
c. 	Development approvals resulting in vested rights acquired
prior to December 10, 2004[,] shall not be subject to an impact fee.
However, development approvals resulting in vested rights acquired
prior to December 10, 2004[,] shall be subject to an impact fee if a
building permit has not been procured within two (2) years of the
effective date of the Impact Fee Ordinances.
DPM ch. 18, § 3(B)(2)(c). The regulation then attempts to clarify when a developer’s
rights vest under the ordinance.
d. 	For the purpose of the Impact Fee Ordinances and these
Administrative Rules, vested rights shall mean development rights
acquired and resulting from building permit approval, final plat approval,
preliminary plat approval, or EPC or DRB site plan for subdivision or
site plan for building permit approval obtained prior to the enactment
date (December 10, 2004) of the Impact Fee Ordinance. Vested rights
arising from such approvals shall expire if a building permit has not been
issued within two (2) years from the effective date of the Impact Fee

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Ordinance and the impact fee may be assessed and collected thereafter.
DPM ch. 18, § 3(B)(2)(d). Finally, the ordinance defines a site plan for subdivision
as
(1) 	An accurate plan at a scale of at least 1 inch to 100 feet
which covers at least one lot and specifies:
(a) 	For Subdivision. The site, proposed use, pedestrian
and vehicular ingress and egress, any internal circulation requirements
and, for each lot, maximum building height, minimum building setback,
and maximum total dwelling units and/or nonresidential uses’ maximum
floor area ratio.
ROA § 14-16-1-5(B)(1)(a).
{15} 	To summarize, any developer whose rights vested prior to December 10, 2004,
is exempt from impact fees under the ordinance. 	ROA § 14-19-(1-4)-12(D). 	A
developer’s rights vest when that developer acquires “development rights” as a result
of, for example, EPC approval of a site plan for subdivision. DPM ch. 18,
§ 3(B)(2)(d). 	Thus, we must determine when a developer acquires a development
right. The City argues that such a right is created upon approval of a “reliable platting
pattern,” 	whereas 	Developers 	contends 	that 	a 	development 	right 	is 	created
automatically upon EPC approval of a site plan for subdivision. 	We consider the
merits of each.
{16} 	Both the city council and the city’s IFA support the notion that a developer’s
rights do not vest until it receives approval for a reliable platting pattern. As the city

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council stated, any “development that ha[s] not progressed to the point of having
committed to any specific lot configuration, location[,] or layout should not be
considered to have a vested right.” Mr. Jack Cloud is the city’s IFA, and as such, he
is the individual responsible for interpreting the DPM and assessing impact fees. He
testified at both hearings before the independent hearing officer and the city council.
At the city council hearing, he stated,
You know, I think you have to interpret: Where is th[e] threshold
[for vested rights]? What does “Site Plan for Subdivision” mean, in
terms of a vested right?
I would urge you to consider that [the subdivision] needs to have
a platting pattern that gives [the developer] a reliance that, “Now we
know what we’re going to build here. We’ve got something going. We
don’t just have zoning parameters of height, setback, density. We have
a platting pattern. We have gone through the steps to get far enough
along in the development.”
Once a reliable platting pattern has been approved, Cloud continued, “[t]he next few
steps should not be a big deal. They should be a formality. Once you have that Site
Plan [f]or Subdivision that shows your lots, the [Development Review Board] is,
pretty much, bound to approve your preliminary plat and then bound to approve your
final plat.” 	Conversely, prior to approval of a reliable platting pattern for a
subdivision’s lots, further approvals from the EPC remain necessary, as no individual
lots for houses or other structures have been designated.
{17} 	Developers argue that development rights are acquired much earlier in the

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process. They contend that EPC approval of a site plan for subdivision, without a
platting pattern for individual lots, automatically confers development rights. 	The
argument relies entirely upon: (1) the common law notion of vested rights, which we
consider below; and (2) a plain language interpretation of DPM ch. 18, § 3(B)(2)(d).
The plain language of that section states that “vested rights shall mean development
rights acquired and resulting from” a site plan for subdivision approval by the EPC.
Id. Neither party disputes that the March 2001 EPC approval at issue in this case was
for a site plan for subdivision. See ROA § 14-16-1-5. Indeed, it is labeled as such.
Thus, because they received such an approval, Developers contend, they received
development rights. 	Developers provide no other evidence of their vested rights
outside of common law, which we discuss below.
{18} 	The problem with Developers’ reading of the regulation lies in their assumption
that a development right must always flow from EPC approval of a site plan for
subdivision. 	Essentially, Developers argue that the two are equivalent. 	But DPM
Chapter 18, Section 3(B)(2)(d) says something quite different. That section confers
a vested right when a development right is acquired by, and results from, a site plan
for subdivision approval. 	Id. This proposition could just as easily be stated in the
negative; that is, when a development right is not acquired by, or resulting from, site
plan for subdivision approval, a vested right has not been conferred. 	Developers’

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interpretation is therefore incorrect. The City’s position seems far more reasonable;
it remains consistent with the language of the DPM, while at the same time setting an
absolute threshold on the moment of vesting. 	Had the drafting committee for the
DPM intended EPC approval of a site plan for subdivision to automatically create
vested rights, it could have easily drafted the regulation to say as much. Instead, it
chose to include various approvals only after they have created a development right.
Furthermore, because the interpretation of the IFA was within his professional
purview, was reasonable, and was not otherwise inconsistent with the law, we are
compelled to accord it deference. See Rio Grande, 2003-NMSC-005, ¶ 25 (holding
that courts “will confer a heightened degree of deference to legal questions that
implicate special agency expertise or the determination of fundamental policies within
the scope of the agency’s . . . function” (internal quotation marks and citation
omitted)); Hyde v. Taos Mun.-County Zoning Auth., 113 N.M. 29, 31, 822 P.2d 126,
128 (Ct. App. 1991) (according substantial weight to a municipality’s application of
its own ordinance where the decision was “reasonable, supported by substantial
evidence, and within” its authority). Therefore, we hold that under the ordinance a
developer receives development rights consistent with DPM ch. 18, § 3(B)(2)(d) at the
time it receives approval for a reliable platting pattern.
{19} 	Developers’ original site plan for subdivision, approved by the EPC in March

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2001, did not confer the development rights necessary to establish vested rights under
the ordinance. 	That plan defines bulk land tracts, establishes zoning for the entire
development, and seeks annexation for a portion not already within the City’s
boundaries. As the plan states, “Currently, all of the land covered by this Site Plan for
Subdivision is unplatted. . . . The goal is to . . . plat all of these tracts.” And under a
description of the site itself, it states, “The site consists of unplatted land,
approximately 230.8 acres[.]” 	Based on our interpretation of ROA § 14-19-(1-4)-
12(D) and DPM ch. 18, § 3(B)(2)(d), above, we hold that such a site plan for
subdivision, because it does not provide a reliable platting pattern, cannot confer
development rights and likewise does not confer vested rights under the ordinance.
The City also reached this conclusion, and because it was neither fraudulent, arbitrary,
nor capricious, we hold that the district court erred in reversing it. 	See Miller,
2008-NMCA-124, ¶ 16.
{20} 	Yet, to complicate matters, the district court commingled its interpretation of
vested rights under the ordinance with an application of common law vested rights
under Brazos Land. The two are distinct. Indeed, as described below, if Developers
were able to establish common law vested rights, the City’s ordinance would cease to
apply at all. 	There would thus be no need for an analysis of the exception.
Nevertheless, we settle the matter by holding that Developers established no common

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law vested rights. The March 2001 site plan for subdivision approved by the EPC was
insufficient to constitute approval under Brazos Land, and thus, the City’s decision
to impose the fee was not contrary to law. See Miller, 2008-NMCA-124, ¶ 16.
C. 	THE 	DISTRICT 	COURT 	INCORRECTLY 	CONCLUDED THAT
DEVELOPERS’ RIGHTS WERE VESTED AT COMMON LAW
{21} 	In New Mexico, the vested rights doctrine protects a developer from shifting
governmental regulations. KOB-TV, L.L.C. v. City of Albuquerque, 2005-NMCA-049,
¶ 14, 137 N.M. 388, 111 P.3d 708. 	After a development has begun under one
regulatory scheme, the doctrine restricts government from modifying that scheme or
imposing another prior to the development’s completion. Id. ¶ 13. 	In order to
establish a vested right, a developer must prove two elements: (1) “approval by the
regulatory body” and (2) a substantial change in position in reliance on that approval.
Brazos Land, 115 N.M. at 170, 848 P.2d at 1097. The district court reasoned that the
two prongs were met when, first, the EPC approved the original site plan for
subdivision and, second, Developers purchased the property and expended “millions
of dollars in furtherance of developing Tracts 1 and 2.” That application of the law
was incorrect. The EPC’s approval of Developers’ original site plan for subdivision
was insufficient to constitute the approval necessary to confer a vested right.
{22} 	This Court’s opinion in Gallup Westside Development, 2004-NMCA-010,
guides our holding. In that case, a municipality issued final plat approval conditioned

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on the developer’s completion of certain infrastructure improvements. Id. ¶ 2. The
developer later claimed that their rights were vested, prohibiting the city from
applying subsequent requirements. Id. ¶ 9. This Court applied the two-pronged test
from Brazos Land and held that the developer satisfied neither. Gallup Westside Dev.,
2004-NMCA-010, ¶ 13. As the Court concluded, “The [c]ity did give final plat
approval to the subdivision. Nevertheless, the first prong of the vested rights test is
not met as long as revocation of that approval remains a possibility.” Id. ¶ 14. Thus,
where a municipality retains the discretion to deny final plat approval for a
subdivision, there can be no vested right in a developer. Id. “A vested right is nothing
more than the power to do certain actions or possess certain things lawfully.” KOB-
TV, 2005-NMCA-049, ¶ 16 (internal quotation marks and omitted). In re Sundance
Mountain Ranches, Inc., 107 N.M. 192, 194, 754 P.2d 1211, 1213 (Ct. App. 1988),
heavily relied upon by Brazos Land, also supports our conclusion. As the Court held,
[g]enerally, a property developer is vulnerable to shifts in zoning or other
land use regulations occurring during the preparatory stages of his
project. 	By issuing approvals preparatory to a building permit, the
government makes no representation that the developer will be exempt
from changing land-use regulations; he must comply with the ordinances
in effect at the time he secures a building permit. Once the developer
secures a building permit and expends a considerable sum of money in
reliance on it, he may acquire a vested right which protects him against
shifting governmental regulation.
Sundance Mountain Ranches, Inc., 107 N.M. at 194, 754 P.2d at 1213 (internal

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quotation marks and citation omitted) (emphasis added). As the authors of American
Law Reports state, prior to receiving a permit or a license to actually begin a particular
project, a developer must abide by subsequently amended law.
[I]t is generally acknowledged that a change in the law pending an
application for a permit or license is operative as to such application, and
that the law as changed, rather than as it existed at the time the
application was filed, determines whether the permit or license should be
granted.
R. J. Fox, Annotation, Change in Law Pending Application for Permit or License, 169
A.L.R. 584 (2009).
{23} 	In the instant case, the City’s March 2001 approval of Developers’ site plan for
subdivision activated no common law vested right. That approval, titled “Site Plan
for Subdivision,” established zoning and annexation. It established tract boundaries,
setbacks, vehicular access, pedestrian access, and several other important preliminary
matters. 	Yet, it clearly remained subject to subsequent City approvals, and
continuance of the project remained entirely within the City’s discretion. Indeed, the
plan is explicit. “Currently, all of the land covered by this Site Plan for Subdivision
is unplatted. . . . The goal is to . . . plat all of these tracts.” Furthermore, as the IFA
indicated, even after a platting pattern has been established for individual lots, there
are at least two further required approvals, one for a preliminary plat, and another for
a final plat. At that time, a developer would be free to apply for a building permit.

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Because Developers had only received approval of an unplatted site plan, they did not
receive common law vested rights. 	The law is well-established. 	Developers
purchased a piece of property which had successfully completed an early stage in the
approval process. Based on that approval, Developers continued to expend money
and resources in furtherance of completing the development. 	Understandably,
Developers argue that they had vested rights at common law. But such an approval,
at such an early stage, remained subject to several subsequent committee approvals
and conferred no discernable right to continue in the development process as
contemplated in the site plan.
{24} 	Developers’ insistence that the EPC’s March 2001 approval gave them vested
rights pursuant to the language of the ordinance is understandable, but as the above
analysis indicates, 	Brazos Land, when considered alongside 	Gallup Westside
Development and Sundance Mountain Ranches, clearly leads to the conclusion that
no vested rights were created at common law. What is more, if common law vested
rights had been created as Developers assert, those rights would exempt Developers
from the entire impact fee ordinance, not just the exception regarding vested rights.
Developers’ reliance on the common law to selectively interpret the ordinance results
in much confusion. 	At every step in this matter, Developers have dovetailed the
ordinance with the doctrine of common law vested rights. The two are distinct, and

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we reject such an analysis.
{25} 	We also reject Developers’ argument that because Phase 3/Tract 1C was not a
“new development” under the ordinance, the ordinance is entirely inapplicable.
Developers’ brief provides no citation to the record demonstrating where this
argument was preserved, and our review reveals none. 	Appellate courts will not
consider issues that went unpreserved at the district court level. Aragon & McCoy v.
Albuquerque Nat’l Bank, 99 N.M. 420, 424, 659 P.2d 306, 310 (1983).
D. 	THE 	DISTRICT 	COURT 	IMPROPERLY 	INVALIDATED THE
ORDINANCE’S TWO-YEAR SUNSET PROVISION
{26} 	Finally, we consider the district court’s invalidation of the ordinance’s two-year
sunset provision. As stated above, the ordinance provides that “[v]ested rights arising
from approvals shall expire if a building permit has not been issued within two years
from the effective date and impact fees may be assessed and collected thereafter.”
ROA § 14-19-(1-4)-12(D); DPM ch. 18, § 3(B)(2)(c)-(d). The district court reasoned
that “[v]ested rights are considered established rights which cannot be taken away
arbitrarily[.]” 	Therefore, the ordinance was “void and of no effect.” Again, this
analysis finds root in the common law, not the ordinance itself. 	As such, it is
incorrect. As we discuss above in detail, vested rights under Brazos Land are different
from the vested rights contemplated by the ordinance at issue here. Admittedly, the
district court was correct in its reading of common law vested rights. 	Such rights

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cannot be arbitrarily taken away. However, this ordinance does not take away such
rights. It simply states that even if a developer qualifies for the exemption, it must
still pay impact fees if it does not apply and receive a building permit for the project
within two years. The sunset provision does not divest developers of common law
vested rights, and we hold that it remains valid.
CONCLUSION
{27} 	For the reasons stated above, we reverse the order of the district court and hold
that the March 2001 EPC approval of Developers’ original site plan for subdivision
was insufficient to confer vested rights under either the ordinance or the common law.
We also hold that the district court’s invalidation of the ordinance’s sunset provision
was error.
{28} 	IT IS SO ORDERED.
______________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

CELIA FOY CASTILLO, Judge

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