January 24, 2013 – Town of Edgewood v. New Mexico Municipal Boundary Commission, No. 30,768

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	January 24, 2013
NO. 30,768
TOWN OF EDGEWOOD,
Petitioner-Appellee,
v.
STATE OF NEW MEXICO
MUNICIPAL BOUNDARY
COMMISSION,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
Robles, Rael & Anaya, P.C.
Marcus J. Rael, Jr.
Robert M. White
Vanessa R. Chavez
Albuquerque, NM
for Appellee

Gary K. King, Attorney General
Mark Reynolds, Assistant Attorney General
Santa Fe, NM
for Appellant

OPINION
KENNEDY, Chief Judge.
{1} 	The Town of Edgewood (the Town) petitioned the Municipal Boundary
Commission (the Commission) to annex unincorporated land that was intermixed with
its incorporated areas. The Commission denied the petition. On certiorari review, the
district court of Santa Fe County reversed the Commission’s decision and ordered the
annexation, holding that the Commission had overstepped its authority and considered
matters outside of its statutory prerogatives. The Commission filed a petition for a
writ of certiorari, which our Court granted. We now reverse.
{2} 	The Commission has the power to determine the statutory sufficiency of a
petition and may make that determination at any time in the proceedings. 	The
Commission properly rejected the Town’s petition for failing to establish ownership
of roads contained in and bordering the territory and for accounting for the ownership
and consequences of ownership of roads owned by other government entities in and
bordering the territory as required by NMSA 1978, Section 3-7-18 (1965) and NMSA
1978, Section 3-7-4 (1965). 	We hold that the Commission properly denied the
annexation.
I. 	BACKGROUND

2
{3} 	The Town filed its petition with the Commission to annex territory in the
unincorporated area of Santa Fe County (the County) in September 2009. 	NMSA
1978, § 3-7-11(A)(1) (1995); NMSA 1978, § 3-7-13 (1983) (setting out requirements
for filing of a petition to annex and its form). A meeting of the Commission was set
in due course as required by NMSA 1978, Section 3-7-14(B) (1965). At the meeting
in November 2009, two main issues arose: 	(1) the designation, ownership, and
inclusion of roads within and bordering the territory proposed for annexation by the
petition; and (2) whether the Town can provide municipal services to the annexed area
within a reasonable period of time. 	The Town’s petition included a map of the
territory proposed for annexation, which identified the territory to be annexed in
relation to the Town and surrounding areas. 	It included roads both within and
bordering the proposed annexation. 	The Town’s map did not identify who owned
these roads. The Commission questioned whether any roads belonged to the state,
county, or federal governments, and the extent to which the Town had taken such
ownership into account. The Town’s attorney stated that there were some state and
county roads on the map submitted. 	The Town stated that it had no intention of
annexing any roads belonging to another governmental entity and no intention of
maintaining any such roads. 	Consequently, the Town did not contact any other
government that might own roads within or bordering the territory it sought to annex.

3
The Town Administrator, Karen Machalick, provided some testimony regarding who
maintained the roads as well as some ownership information. The Commission denied
the annexation petition, holding in part that the Town had not properly included in its
petition all streets located on the boundary of the territory proposed for annexation
and that the map accompanying the petition did not show any federal, state, or county
roads existing within that territory.
{4} 	The Town sought review by way of certiorari to the district court, which
reversed the Commission, holding that the Commission’s decision was not “in
accordance with law.” 	In coming to this conclusion, the district court held that the
Commission cannot look beyond the two statutory requirements included in NMSA
1978, Section 3-7-15 (1965) in making its decision, namely, that the territory to be
annexed is contiguous to the municipality and that municipal services may be
delivered to the annexed territory. It also held that the maps attached to the Town’s
petition provided fair and sufficient notice of the territory proposed to be annexed and
that the County’s use interest in the roads to be annexed did not create a bar to
annexation, by relying on Santa Fe County Board of County Commissioners v. Town
of Edgewood, 2004-NMCA-111, 136 N.M. 301, 97 P.3d 633. 	The district court
concluded that the Commission did not have the authority to reject the petition. We

4
granted the Commission’s petition for a writ of certiorari requesting that this Court
review the decision of the district court.
II. 	DISCUSSION
{5} 	The Commission has statutory power to determine the annexation of territory
to a municipality when the municipality brings a petition to annex. 	Section 3-7-
11(A)(1). “On a writ of certiorari, we employ an administrative standard of review
when determining whether a district court, sitting as an appellate court, erred in its
review of an administrative decision.” Kirkpatrick v. Bd. of Cnty. Comm’rs of Santa
Fe Cnty., 2009-NMCA-110, ¶ 10, 147 N.M. 127, 217 P.3d 613. Thus, our standard
of review is the same as that employed by the district court. Mutz v. Mun. Boundary
Comm’n, 101 N.M. 694, 697, 688 P.2d 12, 15 (1984). On appeal of the Commission’s
decisions, a reviewing court is limited to questions of law, including whether the
administrative body acted fraudulently, arbitrarily, or capriciously, whether substantial
evidence exists to support the decision, and whether the administrative body acted
within its authority. 	Id. at 702, 688 P.2d at 20. 	Although it may correct a
misapplication of the law, the reviewing court generally may not substitute its
judgment for that of the administrative agency. 	Id. at 697, 688 P.2d at 15. 	“In
applying whole record review, this Court reviews both favorable and unfavorable
evidence to determine whether there is evidence that a reasonable mind could accept

5
as adequate to support the conclusions reached by the fact finder.” Levario v. Ysidro
Villareal Labor Agency, 120 N.M. 734, 737, 906 P.2d 266, 269 (Ct. App. 1995).
{6} 	We first address the question of authority and whether the Commission is
limited to considering only the issues of contiguity and the provision of municipal
services under Section 3-7-15. We conclude that, in addition to determining these
issues, the Commission may consider and determine the statutory sufficiency of the
petition. We next consider the sufficiency of the evidence and determine that there
was sufficient evidence to support the Commission’s determination that statutory
requirements regarding identification of roads on the map were not met.
A. 	The Commission May Determine the Sufficiency of Petitions
{7} 	Our first concern is whether the Commission is limited to consideration of only
the two issues of contiguity and provision of services. 	In this case, the issue is
whether the Commission may also consider the requirement of NMSA 1978, Section
3-7-13(A)(3)(b) (1965) for designation of highways and the requirement of Section
3-7-18 that the proposed annexation include any streets located along the boundary
of the territory to be annexed.
{8} 	A petition to annex must include information about the roads within and along
the boundary of the territory proposed to be annexed. 	Section 3-7-13(A)(3)(b).
Pursuant to the statute, the petition shall be accompanied by a map of the territory

6
proposed to be annexed, which must show, among other items, “any federal, state[,]
or county highways which may exist in the territory proposed to be annexed[.]” Id.
Territory owned by the federal government and its instrumentalities, or the State of
New Mexico and its political subdivisions, may be annexed upon consent of that
government entity. 	Section 3-7-4(A). 	Finally, “[a]ny municipality annexing any
territory shall include in the annexation any streets located along the boundary of the
territory being annexed.” Section 3-7-18 (defining “street” as “any thoroughfare that
is open to the public and has been accepted by the board of county commissioners as
a public right-of-way”). 	Combined, these statutes require that a petition to annex
territory include all roads in and along the boundaries of the territory, and if they are
owned by government subdivisions, that consent be obtained to annex those roads
from those governments.
{9} 	Our opinion, in State ex rel. State Highway & Transportation Department v.
City of Sunland Park, 1999-NMCA-143, ¶ 21, 128 N.M. 371, 993 P.2d 85, confirms
that an annexation must comply with all statutory requirements, not just with the
provisions of Section 3-7-15(A). 	There, we invalidated an annexation for not
including an adjacent state road. 	City of Sunland Park, 1999-NMCA-143, ¶ 27.
Section 3-7-18 requires the annexation of roads adjacent to the territory to be annexed

7
and failing to include roads adjacent to territory in an annexation petition rendered the
petition invalid. City of Sunland Park, 1999-NMCA-143, ¶ 24.
{10} 	In this appeal, the Town, like the district court below, incorrectly relies on our
holding in Edgewood. In that case, we rejected Santa Fe County’s standing to object
to an annexation by the town because it did not own roads within the annexed area.
Id., 2004-NMCA-111, ¶ 8. The question of compliance with Sections 3-7-13(A)(3)(b)
and 3-7-18 was not the issue. Edgewood primarily established that maintaining public
roads did not create an ownership interest in the roads, and a lack of ownership
precluded a county’s standing to object to a road’s annexation. 2004-NMCA-111, ¶¶
11-14. In the present case, the district court concluded that the “County’s use interest
in the roads to be annexed does not create a bar to annexation.” However, the issue
before us is not the use interest in the road, but rather whether the Town filed a
petition that meets statutory requirements. 	Edgewood 	is not applicable to a
determination 	of 	the 	sufficiency 	of 	the 	petition 	regarding 	required 	statutory
representations and inclusions.
{11} 	The next question is how and when the Commission can consider such defects.
The Town concedes that the Commission is not required to review a petition if its
statutory preconditions are not met, but it asserts that a review of the statutory
sufficiency of the petition must be completed prior to the Commission taking up the

8
merits of the petition. The Town’s rationale seems to be that because a petition may
not be denied for any other reason than those two contained in Section 3-7-15, it
cannot be rejected at the end of the Commission hearing for any other reason. We
disagree, as we regard rejection of a petition that does not comply with statutory form
requirements to be different than denial of a petition based on the merits of the petition
itself.
{12} 	We have evaluated a similar situation and noted that a board, reviewing a
petition for incorporation, may review the statutory sufficiency of the petition at any
time. 	See Citizens for Incorporation, Inc. v. Bd. of Cnty. Comm’rs, 115 N.M. 710,
713-14, 858 P.2d 86, 89-90 (Ct. App. 1993). 	There, we held that a board’s
determination that the petition was insufficient should be upheld if supported by
substantial evidence. Id. at 714, 858 P.2d at 92. We further held that the sufficiency
of the petition is a jurisdictional issue and, therefore, that the statutory prerequisites
for a petition can be raised at any time. 	Id. at 716, 858 P.2d at 92. 	The court in
Citizens for Incorporation held that a board may properly determine the sufficiency
of a petition for municipal incorporation and its supporting map. Id. In Citizens for
Incorporation, the sufficiency issue was not raised prior to the hearing on other issues,
but we held that this fact did not bar the board from determining that the petition was
insufficient under applicable statutes. Id. Because the incorporation and annexation

9
statutes are similarly structured, we adopt the rationale of Citizens for Incorporation
and determine that the Commission may consider the sufficiency of the petition at any
time.
{13} 	The requirements of Sections 3-7-13(A)(3)(b) and 3-7-18 are preconditions to
a petition being properly before the Commission. The Commission concluded as a
matter of law that the Town did not include in its annexation request all streets as
required by these statutes. 	We regard the Commission’s conclusion to be that the
petition did not conform with the legal requirements set forth by the Legislature in its
statutes governing annexation.
{14} 	We conclude that the Commission has the power to review petitions for their
sufficiency and compliance with the annexation statutes. The Commission can request
further detail at any time in the hearing should concerns arise about the petition and
its supporting map. The Commission was free to determine that the petition did not
meet the requirements of Sections 3-7-13 and -18. Having concluded from testimony
concerning the contents of the petition and its supplemental materials that the petition
did not meet the statutory requirements, the Commission could then determine that the
petition was invalid. Because this determination of its jurisdiction must be supported
by substantial evidence, we now review the Commission’s findings and conclusions
according to a substantial evidence standard of review.

10
B. 	The Commission’s Determination That the Town Filed a Non-Compliant
Petition Was Supported by Substantial Evidence
{15} 	In reviewing the Commission’s decision, we look at the entire administrative
record to see if substantial evidence supports the outcome. Mutz, 101 N.M. at 699,
688 P.2d at 17. 	At the hearing before the Commission, the Town conceded that its
map contained state and county roads. 	However, the county roads were not
designated as such. The Commission asked if the Town had obtained permission to
annex county roads pursuant to Section 3-7-4(A). The Town responded that it was
“not annexing any state or county property” and that the roads would remain state and
county roads unless and until the state and county desired to dedicate them to the
Town.
{16} 	The Town relied on Section 3-7-4(B), which states that an annexation can be
valid despite containing land belonging to other governmental entities within the
territory to be annexed. The Town testified that about forty-five miles of county road
existed within the area proposed for annexation. Other testimony established that the
territory sought to be annexed was bordered by Old Route 66, which appeared on the
Town’s map as State Route 333. Testimony referred to property to be annexed as
being bordered by County Road 6C and Highway 344. The exhibits to the petition
included multiple property locations on NM 344 and Old U.S. 66, which suggest the
existence of state and county roads within and along the areas to be annexed.

11
{17} 	The Commission’s order denying annexation found that, while the map showed
roads that exist “within and along the boundary of the territory proposed to be
annexed,” the map did not indicate whether the roads were owned by any other
government entity. The Commission found that county and state roads were “within
or border the territory proposed to be annexed” and that the Town was “unable to
ascertain who the actual owner is of several of roads within or on the boundary of the
territory.” It also found that the Town had no intention to annex any federal, state, or
county roads, and no intention of having any government entity owning such a road,
to continue to maintain it. The Town did not indicate any intention of annexing other,
presumably private, roads that were not included in the petition. Based on our review
of the exhibits and the testimony given at the hearing, all of the Commission’s
findings are supported by substantial evidence.
{18} 	Having concluded that substantial undisputed evidence supports both the
Commission’s findings of fact and conclusions of law regarding the non-compliance
of the Town’s petition with applicable statutes, we further conclude that the
Commission’s decision that the Town did not comply with statutory requirements for
its petition was not arbitrary and capricious. 	Our ruling being dispositive of the
appeal, we do not address the issue of whether the Town would be able to provide
municipal services to the annexed area.

12
III. 	CONCLUSION
{19} 	The district court erred in holding that the Commission’s review of the
sufficiency of the petition was limited. The Commission has the power to evaluate the
annexation petition’s compliance with statutory requirements for ownership and
documentation of roads. There is no need to address any further issues because the
petition did not warrant further proceedings before the Commission. We therefore
reverse the district court and affirm the decision of the Commission.
{20} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Chief Judge
WE CONCUR:
____________________________________
CYNTHIA A. FRY, Judge
____________________________________
CELIA FOY CASTILLO, Judge Pro Tem