December 23, 2020- Javier Benavidez v. Bernalillo County Board of County Commissioners, No. A-1-CA-36979

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: December 23, 2020	3
Nos. A-1-CA-36979 and A-1-CA-37434	4
(consolidated for purpose of opinion)	5
JAVIER BENAVIDEZ, JAMES	6
SANTIAGO MAESTAS, ROBERTO	7
ROIBAL, THE SOUTHWEST	8
ORGANIZING PROJECT, THE NEW	9
MEXICO HEALTH EQUITY WORKING	10
GROUP, and THE PAJARITO VILLAGE	11
ASSOCIATION,	12
Petitioners-Petitioners,	13
v.	14
BERNALILLO COUNTY BOARD OF	15
COUNTY COMMISSIONERS; ART DE	16
LA CRUZ; WAYNE JOHNSON; DEBBIE	17
O'MALLEY; MAGGIE HART STEBBINS;	18
and LONNIE TALBERT, Bernalillo County	19
Commissioners; CONSENSUS PLANNING;	20
and WESTERN ALBUQUERQUE LAND	21
HOLDINGS, LLC,	22
Respondents-Respondents.	23
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	24
Nancy J. Franchini, District Judge	25
Court of Appeals of New Mexico
Filed 12/23/2020 9:55 AM

and	1
MARCIA BEAUREGARD FERNANDEZ	2
and DANIEL RICHARD “RIP” ANDERSON,	3
Plaintiffs-Petitioners,	4
v.	5
BERNALILLO COUNTY BOARD	6
OF COUNTY COMMISSIONERS,	7
Defendant-Respondent,	8
and	9
CONSENSUS PLANNING, INC. and	10
WESTERN ALBUQUERQUE LAND	11
HOLDINGS, LLC,	12
Interested Parties-Respondents.	13
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	14
Nancy J. Franchini, District Judge	15
New Mexico Environmental Law Center	16
Douglas Meiklejohn	17
Eric Jantz	18
Jaimie Park	19
Jonathan Block	20
Santa Fe, NM	21
for Petitioners (No. A-1-CA-36979)	22

Yntema Law Firm P.A.	1
Hessel E. Yntema III	2
Albuquerque, NM	3
for Petitioners (No. A-1-CA-37434)	4
Robles, Rael & Anaya, P.C.	5
Robert M. White	6
Daniel J. Grunow	7
Jordon P. George	8
Albuquerque, NM	9
for Respondents Bernalillo County Board of County Commission and Bernalillo	10
County Commissioners	11
Rodey, Dickason, Sloan, Akin & Robb, P.A.	12
Edward R. Ricco (No. A-1-CA-36979)	13
John P. Salazar	14
Jocelyn Drennan (No. A-1-CA-37434)	15
Jenica L. Jacobi	16
Albuquerque, NM	17
for Respondents Consensus Planning, Inc. and Western Albuquerque Land	18
Holdings, LLC	19

OPINION	1
HANISEE, Chief Judge.	2
{1} 	In this consolidated opinion, 1 we consider the propriety of actions and	3
determinations by the Bernalillo County Board of County Commissioners (the	4
Board)2 and the district court, respectively, related to development of the proposed	5
Santolina planned community (Santolina) on Albuquerque’s west side mesa in	6
Bernalillo County. For the reasons that follow, we affirm.	7
BACKGROUND	8
{2} 	These consolidated appeals arise from the Petitioners’ collective opposition	9
to Santolina. We first identify the many parties to this litigation and set forth the	10
general factual and procedural background preceding these appeals, reserving	11
further discussion of facts or litigative events when pertinent to our analysis.	12
The Parties	13
{3} 	Petitioners in Benavidez v. Bernalillo County Board of County Commissioners	14
are: Javier Benavidez, James Santiago Maestas Roberto Roibal, the Southwest	15
1 This opinion consolidates two appeals: Case Numbers A-1-CA-36979 and
A-1-CA-37434. Case number A-1-CA-36979, itself, consolidates three separate
appeals: 	Case 	numbers 	A-1-CA-36979, 	A-1-CA-37051, 	and 	A-1-CA-37060.
Because these cases stem from the same underlying proceedings, involve many of
the same parties, and raise related—though distinct—issues, we consolidate the
cases for decision. See Rule 12-317(B) NMRA.
2 During litigation underlying these appeals, the Board was comprised of
County Commissioners Art De La Cruz, Wayne Johnson, Debbie O’Malley, Maggie
Hart-Stebbins, and Lonnie Talbert.

2
Organizing Project, the New Mexico Health Equity Working Group, and the Pajarito	1
Village 	Association 	(collectively, 	the 	Benavidez 	Petitioners). 3 Petitioners 	in	2
Fernandez v. Bernalillo County Board of County Commissioners 	are Marcia	3
Beauregard Fernandez and Daniel Richard “Rip” Anderson, (collectively, the	4
Fernandez Petitioners), who own and reside at their property located east of the	5
proposed location for Santolina. Respondents in both appeals are the Board,	6
Consensus Planning, Inc. (Consensus Planning),4 and Western Albuquerque Land	7
Holdings, LLC (WALH).5
8
Initial Proceedings	9
{4} 	In August 2013 Consensus Planning—acting as an agent for WALH, the	10
owners of approximately 13,800 acres of land in western Albuquerque—applied to	11
the Bernalillo County Planning Commission (the Planning Commission) for review	12
of the Santolina master plan and the accompanying zone map amendment regarding	13
that proposed development on WALH’s land. The master plan “establishe[d] the big	14
picture vision and overall framework for the [Santolina] community” by identifying	15
and determining specific uses for the proposed development, the development’s site	16
3 Collectively, these parties are Petitioners-Appellants in A-1-CA-36979, and
Petitioners-Appellees/Cross-Appellants in A-1-CA-37060 and A-1-CA-37051.
4 Consensus Planning is an Interested Party-Respondent in A-1-CA-37434 and
is a Respondent in A-1-CA-36979.
5 WALH is an Interested Party-Respondent in A-1-CA-37434 and is a
Respondent in A-1-CA-36979.

3
attributes, and the standards to be upheld through the development process. The zone	1
map amendment proposed rezoning the land from A-1 Rural Agricultural to Planned	2
Community 	Zoning. 	After 	multiple 	hearings, 	the 	Planning 	Commission	3
recommended approval of both the master plan and the zone map amendment to the	4
Board.	5
The Benavidez Petitioners’ Appeal to the Board and the District Court	6
{5} 	The Benavidez Petitioners first filed an appeal with the Board, challenging the	7
Planning Commission’s recommendation that the Board approve the master plan and	8
the zone map amendment. The Board considered and denied that appeal before	9
ultimately approving the master plan and the zone map amendment on June 16,	10
2015, following a series of public hearings. After the Board approved the master	11
plan and the zone map amendment, the Board considered a draft of the development	12
agreement 	between 	Bernalillo 	County (the 	County) 	and 	WALH, 	which 	was	13
negotiated and prepared by a working group comprised of the County staff and	14
WALH for the Board’s consideration. The development agreement is a contract	15
between the County and WALH and is intended, among other purposes, to serve as	16
a 	preliminary 	agreement 	describing 	the 	parties’ 	responsibilities 	regarding	17
infrastructure and financing. The Board took public comments on the draft at a	18
public zoning hearing on June 24, 2015. There, the Board reviewed the draft, adopted	19
revisions, and ultimately voted to approve the development agreement.	20

4
{6} 	Following the Board’s approval of the zone map amendment, the master plan,	1
and the development agreement, the Benavidez Petitioners filed a notice of appeal	2
and alternative petition for a writ of certiorari with the district court, challenging the	3
denial of their previous appeal to the Board and appealing the Board’s approval of	4
the zone map amendment, the master plan, and the development agreement.	5
{7} 	The Benavidez Petitioners further contended that the Board’s approval of the	6
zone map amendment and the master plan should be vacated because an op-ed article	7
written by County Commissioner Art De La Cruz expressed impermissible bias,	8
depriving them of their right to an impartial tribunal during the proceedings before	9
the Board related to the proposed development, in violation of their due process	10
rights. Specifically, the Albuquerque Journal published Commissioner De La Cruz’s	11
op-ed on March 23, 2015, two days before the Board’s first hearing regarding the	12
Santolina master plan and the zone map amendment. The op-ed began: “It is	13
important for the public to know why I and others support thoughtful, well-planned	14
developments in Bernalillo County, such as the proposed Santolina development. It	15
is important that the [C]ounty ‘get the facts out’ and dispel the distortions and	16
misinformation being spread by opponents[.]” The op-ed continued, “Presently,	17
Santolina 	fits 	this 	model 	as 	a 	master-planned 	residential 	and 	commercial	18
development” and 	Commissioner De La Cruz 	“consider[ed] Santolina to 	be	19
appropriate progress for our [C]ounty.” The op-ed concluded with Commissioner	20

5
De La Cruz opining what would become of WALH’s property if the Board did not	1
approve the Santolina development, stating that he supported the development of	2
Santolina because he “prefer[red] to more thoughtfully and proactively determine	3
the destiny of [the] County’s unavoidable and foreseeable growth.”	4
{8} 	On March 24, 2015, the Benavidez Petitioners filed a motion seeking	5
Commissioner De La Cruz’s recusal, and in the alternative, disqualification from the	6
Board’s proceedings. The Benavidez Petitioners’ motion was heard at the first of the	7
Board’s hearings regarding the master plan and the zone map amendment, on March	8
25, 2015. There, Commissioner De La Cruz explained his op-ed stating that he “was	9
thoughtful to avoid specificity related to any zoning issues”; he had “opined . . .	10
specifically about [his] philosophy related to master plans in general”; and he	11
believed he could render future decisions on the matter “objectively.”	12
{9} 	The 	Benavidez 	Petitioners 	asserted 	to 	the 	Board 	that 	its 	impending	13
proceedings regarding the master plan and the zone map amendment were quasi-	14
judicial, requiring a non-biased tribunal, and that Commissioner De La Cruz’s op-	15
ed demonstrated his bias to a degree that his continued participation would deprive	16
them of due process. Following discussion at the meeting, no commissioner	17
supported disqualification of Commissioner De La Cruz based on his op-ed,	18
although no vote was held regarding the Benavidez Petitioners’ motion. At a May	19
28, 2015, special zoning meeting, the Benavidez Petitioners renewed their motion	20

6
regarding Commissioner De La Cruz, at which time, the County attorney reminded	1
the Board that they had declined to vote on the Benavidez Petitioners’ motion. After	2
hearing relevant testimony regarding the Benavidez Petitioners’ motion seeking	3
disqualification of Commissioner De La Cruz, the Board declined again to vote on	4
the motion and proceeded to deny the Benavidez Petitioners’ appeal concerning the	5
Board’s approval of the master plan and the zone map amendment.	6
{10} 	Between March and June 2015, the Board held public hearings regarding the	7
master plan and the accompanying zone map amendment. Ultimately, at a special	8
meeting on June 16, 2015, the Board approved both the master plan and the zone	9
map amendment by a 3-2 vote under Resolution 2015-42, with Commissioner De	10
La Cruz joining the majority. In pertinent part, the decision approving the master	11
plan provides that the “request for approval of the [master plan] has been submitted	12
in conjunction with a request for a zone change for Planned Communities . . . Zoning	13
[via the zone map amendment].”	14
{11} 	The district court affirmed the Board’s approval of the master plan, holding	15
that such was a legislative action. The district court also held, however, that the	16
Board’s consideration and approval of the zone map amendment was a quasi-judicial	17
action requiring an impartial tribunal. Based on that determination, the district court	18
further concluded that as to the zone map amendment, the Board’s failure to consider	19
and vote on the Benavidez Petitioners’ motion seeking recusal of Commissioner De	20

7
La Cruz on due process grounds required reversal and remand. The district court	1
dismissed 	the Benavidez Petitioners’ appeal 	of the Board’s 	approval 	of the	2
development agreement for lack of ripeness because there had been no final written	3
decision from which to appeal.	4
The Benavidez Petitioners’ Current Appeal	5
{12} 	Utilizing Rule 12-505 NMRA, the Benavidez Petitioners filed a writ of	6
certiorari to this Court, which we granted. The Benavidez Petitioners argue the	7
district court erred by (1) ruling that the Board’s proceedings to approve the master	8
plan were legislative and not quasi-judicial, and (2) ruling that it could not review	9
the Board’s approval of the development agreement because there was no final	10
written decision from the Board regarding their approval and adoption of the	11
development agreement.	12
{13} 	Respondents, meanwhile, argue on cross-appeal that (1) the Board’s approval	13
and adoption of the zone map amendment was legislative in nature, and, therefore,	14
whatever bias Commissioner De La Cruz may or may not have exhibited in his op-	15
ed is of no due process concern, as legislative actions require fewer procedural	16
protections than quasi-judicial actions; and (2) even if the Board’s proceedings to	17
approve the zone map amendment were quasi-judicial, Commissioner De La Cruz’s	18
op-ed did 	not 	demonstrate impermissible bias 	and, therefore, the Benavidez	19
Petitioners are not entitled to partial reversal on that ground. The Board argues as	20

8
well that even if its approval and adoption of the zone map amendment was quasi-	1
judicial, and even if Commissioner De La Cruz’s op-ed constituted impermissible	2
bias, it adequately considered the Benavidez Petitioners’ due process challenge	3
alleging bias, thus properly resolving that issue.	4
The Fernandez Petitioners’ Notice to the Board and Appeal to the District	5
Court	6
{14} 	Before the Board approved the master plan, zone map amendment, and	7
development agreement, the Fernandez Petitioners submitted a letter to the Board	8
claiming 	that 	the 	development 	agreement 	was 	prepared, 	negotiated 	and	9
recommended to the Board in violation of the Open Meetings Act (the OMA),	10
NMSA 1978, §§ 10-15-1 to -4 (1974, as amended through 2013). The Board did not	11
address the Fernandez Petitioners’ letter, and after the Board’s approval of the	12
master plan and zone map amendment, the Fernandez Petitioners filed their own	13
notice of appeal and complaint with the district court challenging those prior actions	14
by the Board and also alleging that the negotiation and approval of the development	15
agreement violated the OMA. The Fernandez Petitioners sought a declaratory	16
judgment that the development agreement was invalid as a zoning measure. WALH	17
and Consensus Planning moved to dismiss the Fernandez Petitioners’ appeal	18
regarding the Board’s approval of the zone map amendment on ripeness and standing	19
grounds. Although the district court denied WALH and Consensus Planning’s	20

9
motion, it nonetheless dismissed—as it had that aspect of the Benavidez Petitioner’s	1
appeal to the court—the Fernandez Petitioners’ appeal regarding the Board’s	2
approval of the development agreement for lack of a final, written order, and	3
dismissed the Fernandez Petitioners’ OMA claim for failure to state a claim. The	4
district court also denied the Fernandez Petitioners’ motion to reconsider.	5
The Fernandez Petitioners’ Current Appeal	6
{15} 	The Fernandez Petitioners raise seven arguments on appeal attacking approval	7
of the development agreement, arguing: (1) the Board’s approval of the development	8
agreement was a decision of zoning authority and the development agreement itself	9
constitutes zoning, and specifically, illegal contract zoning; (2) the district court	10
erred in dismissing the Fernandez Petitioners’ administrative appeal regarding the	11
development agreement due to the lack of a final, written order; (3) the development	12
agreement was prepared, negotiated, and recommended in violation of the OMA; (4)	13
the development agreement is invalid because it was not recommended or reported	14
by the Planning Commission; (5) the development agreement was negotiated and	15
approved outside of, and contrary to, the applicable authority in effect in 2015; (6)	16
the enactment of the zone map amendment was unlawful because the relevant zoning	17
ordinance required a development agreement as part of the zoning; and (7) the	18
district court’s ruling in Benavidez reversing the Board’s approval of the zone map	19
amendment renders the development agreement invalid.	20

10
DISCUSSION	1
I. 	Standard of Review	2
{16} 	We resolve administrative appeals by employing “the same standard of review	3
used by the district court while also determining whether the district court erred in	4
its review.” Paule v. Santa Fe Cnty. Bd. of Cnty. Comm’rs, 2005-NMSC-021, ¶ 26,	5
138 N.M. 82, 117 P.3d 240. Our review is limited to ascertaining “whether the	6
administrative agency acted fraudulently, arbitrarily or capriciously; whether the	7
agency’s decision is supported by substantial evidence; or whether the agency acted	8
in accordance with the law.” Id. When applying this administrative standard of	9
review, we will not substitute our judgment for that of the fact-finder, but we review	10
questions of law de novo. See Rio Grande Chapter of the Sierra Club v. N.M. Mining	11
Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806.	12
II. 	The Board’s Proceedings Regarding the Master Plan Were Legislative	13
{17} 	The Benavidez Petitioners appeal the district court’s decision affirming the	14
Board’s approval of the master plan, contending first that the district court erred in	15
determining that the Board’s proceedings regarding the master plan, and subsequent	16
approval thereof, were legislative actions. The controversy about whether the	17
Board’s proceedings were legislative or quasi-judicial is central to this appeal given	18
that “[t]he nature of a particular zoning action as either legislative or quasi-judicial	19
is determinative of the procedures that the zoning authority is required to follow in	20

11
implementing that action.” 	Albuquerque Commons P’ship v. City Council of	1
Albuquerque, 2008-NMSC-025, ¶ 31, 144 N.M. 99, 184 P.3d 411. A proceeding that	2
is quasi-judicial requires “enhanced procedural protections” for affected parties,	3
including a “fair and impartial tribunal[.]” Id. ¶¶ 33-34. Whether the Board’s	4
proceedings regarding the master plan were legislative or quasi-judicial is a question	5
of law subject to de novo review. See Rio Grande Chapter of the Sierra Club, 2003-	6
NMSC-005, ¶ 17 (explaining that even in an appeal of an administrative decision,	7
we review questions of law de novo).	8
{18} 	“Legislative action reflects some public policy relating to matters of a	9
permanent or general character, is not usually restricted to identifiable persons or	10
groups, and is usually prospective.” KOB-TV, L.L.C. v. City of Albuquerque, 2005-	11
NMCA-049, ¶ 19, 137 N.M. 388, 111 P.3d 708 (internal quotation marks and	12
citation omitted). “On the other hand, quasi-judicial action has been defined as	13
involving a determination of the rights, duties, or obligations of specific individuals	14
on the basis of the application of presently existing legal standards or policy	15
considerations to past or present facts developed at a hearing conducted for the	16
purpose of resolving the particular interests in question.” Id. ¶ 20 (internal quotation	17
marks and citation omitted). “Generally, legislative actions result in the formulation	18
of a general rule of policy, and quasi-judicial actions result in the application of a	19
general 	rule 	of 	policy.” 	Albuquerque 	Commons 	P’ship 	v. 	City 	Council 	of	20

12
Albuquerque, 2006-NMCA-143, ¶ 36, 140 N.M. 751, 149 P.3d 67 (emphasis	1
added), rev’d on other grounds by Albuquerque Commons P’Ship, 2008-NMSC-	2
025, ¶ 36.	3
{19} 	The master plan at issue here falls within the broader umbrella of county-wide	4
planning, pursuant to NMSA 1978, Section 3-19-1(D) (1965) (authorizing a	5
municipality to “adopt, amend, extend and carry out a general municipal or master	6
plan which may be referred to as the general or master plan”), and NMSA 1978,	7
Section 4-37-1 (1975) (providing that “[a]ll counties are granted the same powers	8
that are granted municipalities except for those powers that are inconsistent with	9
statutory or constitutional limitations placed on counties”).6 Comprehensive county	10
or municipal master planning is undertaken “with the general purpose of guiding and	11
accomplishing 	a 	coordinated, 	adjusted 	and 	harmonious 	development” 	of 	the	12
municipality or county. NMSA 1978, § 3-19-9(A) (1965); see NMSA 1978, § 4-57-	13
2(A) (1967) (stating that county planning “shall be made with the general purpose	14
of guiding and accomplishing a coordinated, adjusted and harmonious development	15
of the county which will, in accordance with existing and future needs, best promote	16
6 In 	1988 	the 	Board 	adopted 	the 	Albuquerque/Bernalillo 	County
Comprehensive Plan, a master plan governing “the overall densities, character and
design of all land uses and development” in the County. Two years later, the Board
adopted Planned Communities Criteria, which provides a framework for three levels
of review and approval of a planned community before development can proceed—
the first of which concerns the approval of a “Level A” Community Area Plan, such
as the master plan at issue in this appeal.

13
health, safety, morals, order, convenience, prosperity or the general welfare as well	1
as efficiency and economy in the process of development”). For this reason, we have	2
recognized that “the [L]egislature has assigned to the master plan the role of guide,	3
enabling municipal [and county] planning commissions to use reasonable discretion	4
in applying its provisions to the actual decision-making processes involved in	5
municipal development.” W. Bluff Neighborhood Ass’n v. City of Albuquerque,	6
2002-NMCA-075, ¶ 12, 132 N.M. 433, 50 P.3d 182, overrruled on other grounds	7
by Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 16. Our Supreme	8
Court similarly observed that “[t]he New Mexico [L]egislature intended any master	9
plan adopted by a municipality to be advisory in nature.” Dugger v. City of Santa	10
Fe, 1992-NMCA-022, ¶ 26, 114 N.M. 47, 834 P.2d 424.	11
{20} 	The Santolina master plan bears many similarities to a comprehensive master	12
plan. Notably, the Santolina master plan is a “rank two Area Plan known as a Level	13
A Community Area Plan.” For planned communities, the Level A plan guides the	14
preparation of more detailed rank three Sector Development Plans (Level B plans),	15
which in turn determine subsequent subdivision plats and site development plans	16
(Level C plans). See Bernalillo County, N.M. Code § 19.5(A)(1)(a), (b) (2020).	17
Respondents note that the Level A master plan provides an “overall development	18
strategy” to guide the development of approximately 13,851 acres over the next forty	19
to fifty years and contemplates land uses applying to upwards of 90,000 people.	20

14
Structurally then, a Level A plan resembles a city-wide or county-wide master plan	1
in the hierarchy of planning for a planned community and, as the district court noted,	2
the Santolina master plan—like a comprehensive master plan affecting the entire	3
county—reflects broad, prospective applications of public policy regarding county	4
development. See W. Bluff Neighborhood Ass’n, 2002-NMCA-075, ¶ 23 (noting that	5
the Albuquerque/Bernalillo County Comprehensive Plan “is the basic long range	6
city [and county] 	policy 	for the development and conservation of the entire	7
metropolitan 	area” 	(emphasis 	added) 	(internal 	quotation 	marks 	and 	citation	8
omitted)).	9
{21} 	On appeal, the Benavidez Petitioners, relying on our Supreme Court’s	10
decision in Dick v. City of Portales, first argue that the Board’s proceedings	11
regarding the master plan contained all the hallmarks of a quasi-judicial proceeding.	12
See 1994-NMSC-092, ¶ 5, 118 N.M. 541, 883 P.2d 127 (“A local governing body is	13
acting in a quasi-judicial capacity when it is ‘required to investigate facts, or	14
ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions	15
from them, as a basis for their official action, and to exercise discretion of a judicial	16
nature.’ ” (quoting Black’s Law Dictionary 1245 (6th ed.1990))). The Benavidez	17
Petitioners note that the Board’s proceedings regarding the master plan were	18
conducted as hearings and involved presentation of evidence and findings of fact,	19
the hearings were recorded by a court reporter, individuals who spoke at the hearing	20

15
were sworn as witnesses, and that prior to the hearings, members of the public were	1
told by members of the Board that the Santolina matter could not be discussed	2
because the impending proceedings were quasi-judicial. While the Benavidez	3
Petitioners hope to evaluate the Board’s proceedings strictly by the procedures	4
followed by the Board, we rejected a similar argument in Dugger, stating the process	5
by which the decision is reached “did not transform it into a quasi-judicial	6
proceeding, even if the process had the appearance of quasi-judicial proceedings.”	7
1992-NMCA-022, ¶ 15.	8
{22} 	Instead, the question turns on the distinction between a formulation versus an	9
application of policy. See Albuquerque Commons P’ship, 2008-NMSC-025, ¶¶ 22-	10
23 (stating that the focus of the inquiry is on what kind of action is taken and its	11
effect, rather than on what procedures are used). The Benavidez Petitioners argue	12
that the Board’s consideration of the rights of individual parties rendered its	13
determination applicational, and thereby quasi-judicial. But mere consideration of	14
such rights does not alone transmute a proceeding into one that must be characterized	15
as quasi-judicial when that proceeding involves policy decisions that are not legally	16
binding, as here. “We recognize that a legislative decision may appear adjudicatory	17
when parties focus on the effect of the particular decision on individual rights.	18
However, policy decisions generally begin with the consideration and balancing of	19
individual rights.” KOB-TV, L.L.C., 2005-NMCA-049, ¶ 22 (emphasis added)	20

16
(internal quotation marks and citation omitted). But, as discussed above—and as	1
recognized by the district court—the master plan at issue here reflects a broad, area-	2
wide policy regarding future development of a large-scale planned community, and	3
despite the fact that the land is owned by a single holder, the character of the action	4
remains legislative. See Miles v. Bd. of Cnty. Comm’rs, 1998-NMCA-118, ¶ 12, 125	5
N.M. 608, 964 P.2d 169 (holding that the county was acting in its legislative capacity	6
when it enacted a comprehensive zoning plan, saying, “the adoption of this	7
comprehensive zoning ordinance . . . was of a character that is commonly described	8
as a legislative act—a policy decision affecting a large number of persons and a vast	9
area of land, based upon general criteria and not the details of any particular land	10
owner”); see also KOB-TV, L.L.C., 2005-NMCA-049, ¶ 19 (stating that legislative	11
action “reflects some public policy relating to matters of a permanent or general	12
character, is not usually restricted to identifiable persons or groups, and is usually	13
prospective” (internal quotation marks and citation omitted)); 	Dugger, 1992-	14
NMCA-022, ¶¶ 26-27 (clarifying that planning documents addressing policy, such	15
as a developmental master plan, are typically adopted by resolution—as was the	16
master plan in this case—and do “not carry the weight of law, as do ordinances”	17
because “a resolution, generally speaking, is simply an expression of opinion or	18
mind or policy concerning some particular item of business coming within the	19
legislative body’s official cognizance, ordinarily ministerial in character and relating	20

17
to the administrative business of the municipality” (internal quotation marks and	1
citation omitted)).	2
{23} 	The Benavidez Petitioners next argue that the Board “purported to evaluate”	3
the master plan pursuant to existing standards, rendering its proceedings quasi-	4
judicial and not legislative. They rely on Albuquerque Commons Partnership, 2008-	5
NMSC-025, ¶ 32, for the proposition that proceedings are quasi-judicial when they	6
entail a “determination of the rights, duties, or obligations of specific individuals on	7
the basis of the application of currently existing legal standards.” (Emphasis added.)	8
But 	Albuquerque 	Commons 	Partnership 	dealt 	specifically 	with 	the 	City 	of	9
Albuquerque’s adoption of a new sector plan, which—while not specifically referred	10
to as a zoning decision—did, in effect, rezone a particular property to a more	11
restrictive use. 2008-NMSC-025, ¶¶ 1-2, 50. Thus, the Court concluded that quasi-	12
judicial proceedings were required to protect the affected property owner’s due	13
process rights. Id. ¶¶ 49, 52. Here, on the other hand, the master plan does not, itself,	14
rezone property in a way that limits or restricts use; rather, the master plan sets forth	15
advisory policy regarding the development and use of Santolina. The Benavidez	16
Petitioners reiterate that because the Board’s proceedings regarding the master plan	17
resembled quasi-judicial proceedings, the Board’s proceedings must necessarily be	18
quasi-judicial proceedings. We disagree, given that “[t]he process by which [a	19
governing body] reache[s] its decision [does] not transform it into a quasi-judicial	20

18
proceeding, even if the process had the appearance of quasi-judicial proceedings.”	1
Dugger, 1992-NMCA-022, ¶ 15.	2
{24} 	For these reasons, and entirely consistent with New Mexico precedent, we	3
hold that the district court correctly determined that the Board’s proceedings	4
regarding the master plan were legislative. As such, the district court did not apply	5
an improper standard in evaluating the Benavidez Petitioners’ challenges to the	6
Board’s approval of the master plan. Given the absence of further challenge on	7
appeal to the district court’s affirmance of the Board in this regard, we affirm the	8
district court.	9
III. 	The Board’s Proceedings Regarding the Zone Map Amendment Were	10
Quasi-Judicial	11
{25} 	Respondents each argue that the district court erred in (1) ruling that the	12
Board’s proceedings regarding the zone map amendment were quasi-judicial and (2)	13
remanding the issue to the Board for further proceedings because the original	14
proceedings 	violated 	the 	Benavidez 	Petitioners’ due 	process 	rights. 	Whether	15
approval of the zone map amendment was a legislative or quasi-judicial act is a	16
question of law subject to de novo review. See Rio Grande Chapter of the Sierra	17
Club, 2003-NMSC-005, ¶ 17.	18
{26} 	“Zoning decisions can be either legislative or quasi-judicial depending upon	19
the impact of the zoning change.” Hart v. City of Albuquerque, 1999-NMCA-043,	20
¶ 13, 126 N.M. 753, 975 P.2d 366. We have said that “legislative actions generally	21

19
reflect 	public policy in 	relation 	to 	matters 	of a 	general 	nature, 	as 	when 	a	1
determination is made regarding the zoning of a community or area without	2
consideration to any particular piece of property.” W. Old Town Neighborhood Ass’n	3
v. City of Albuquerque, 1996-NMCA-107, ¶ 11, 122 N.M. 495, 927 P.2d 529,	4
superseded by statute as stated in Albuquerque Commons P’ship, 2008-NMSC-025.	5
In contrast, “[w]hen a zoning action is specifically designed to affect a relatively	6
small number of properties and does not apply to similarly situated properties in the	7
surrounding 	area 	or 	city-wide, 	that 	action 	is 	quasi-judicial, 	not 	legislative.”	8
Albuquerque Commons P’ship, 2008-NMSC-025, ¶ 39; Los Chavez Cmty. Ass’n v.	9
Valencia Cnty., 2012-NMCA-044, ¶ 19, 277 P.3d 475 (“[T]hose who sit on boards	10
adjudicating individual property applications for changes in zoning designations act	11
in a quasi-judicial capacity.” (emphasis added)).	12
{27} 	WALH and Consensus Planning argue that the master plan and the zone map	13
amendment were “related parts of an integrated process to define and implement the	14
County Commission’s policy choices favoring long-term, planned development” in	15
the area proposed for Santolina’s development, and that the Board’s proceedings	16
regarding both the master plan and the zone map amendment were legislative.	17
Similarly, the Board argues that “the broad policy decisions reflected in the approval	18
of the . . . [m]aster [p]lan and the adoption of the accompanying [zone map	19
amendment] were the result of the County’s long-term planning process setting	20

20
growth and development priorities for all future property owners in the planned	1
community of Santolina.” We disagree.	2
{28} 	To reiterate: unlike legislative action, which “reflects public policy relating to	3
matters of a permanent or general character, is not usually restricted to identifiable	4
persons or groups, and is usually prospective[,]” quasi-judicial action “generally	5
involves a determination of the rights, duties, or obligations of specific individuals	6
on the basis of the application of currently existing legal standards or policy	7
considerations of past or present facts developed at a hearing conducted for the	8
purpose of resolving the particular interest in question.” Albuquerque Commons	9
P’ship, 2008-NMSC-025, ¶ 32 (internal quotation marks and citation omitted). This	10
is why, in Albuquerque Commons Partnership, our Supreme Court concluded that	11
rezoning 	consequences 	of 	a 	sector 	determination 	by 	the 	City 	Council 	that	12
downzoned a number of included properties—limiting their use from that previously	13
available to prior owners—was quasi-judicial, clarifying that “[w]hen a zoning	14
action is specifically designed to affect a relatively small number of properties and	15
does not apply to similarly situated properties in the surrounding area or city-wide,	16
that action is quasi-judicial, not legislative.” Id. ¶¶ 32, 39; see Dugger, 1992-NMCA-	17
022, ¶ 9 (“In New Mexico, decisions that determine how a particular piece of	18
property can be used have been held to be quasi-judicial.”).	19

21
{29} 	As the district court noted, the zone map amendment “request was made . . .	1
to amend the zone map for a specific area of land, albeit a very large area, . . . in the	2
County. This is not a case where the Board issued a zoning ordinance or zoning	3
action that applied to the entire County.” While the affected area may be large in this	4
case, it is nonetheless a specific area and not, for example, all of Bernalillo County	5
or even all of the west side of Albuquerque. This is significant considering we have	6
held that actions approving a city-wide zoning change were legislative, whereas	7
zoning changes addressing smaller or specific areas were deemed quasi-judicial.	8
Compare KOB-TV, L.L.C., 2005-NMCA-049, ¶ 23 (concluding that enactment of a	9
city-wide amendment to the zoning code was a legislative action, not a quasi-judicial	10
action), 	and 	Miles, 	1998-NMCA-118, 	¶ 	12 	(concluding 	that 	adoption 	of	11
comprehensive zoning ordinance affecting entire county served a legislative, not	12
quasi-judicial, function), with W. Old Town Neighborhood Ass’n, 1996-NMCA-107,	13
¶ 11 (holding that the challenged zoning action was quasi-judicial because it was	14
intended to apply only to a single property and, “[i]n New Mexico, zoning decisions	15
involving the application of a general rule to a specific property are not legislative	16
acts; rather they are deemed to be quasi-judicial in nature”). Thus, because the zone	17
map amendment affects only a specific area of identifiable property—and alters that	18
property’s zoning in a manner distinct from surrounding properties and the County	19
at large—we consider this case to be more like Albuquerque Commons Partnership	20

22
and less like Miles. We hold that the district court correctly determined that the	1
Board’s proceedings regarding the zone map amendment were quasi-judicial.	2
IV. 	The District Court Did Not Err in Reversing and Remanding Issues	3
Related to the Zone Map Amendment	4
{30} 	Respondents argue that even if, as we have concluded above, the Board’s	5
proceedings regarding the zone map amendment were quasi-judicial, the district	6
court erred in determining the Benavidez Petitioners are entitled to reversal of the	7
Board’s approval of the zone map amendment because (1) Commissioner De La	8
Cruz’s op-ed did not constitute impermissible bias and; (2) even if the op-ed did	9
constitute impermissible bias, the Board adequately considered the Benavidez	10
Petitioners’ due process challenge alleging bias, thus resolving that issue. To address	11
these arguments, we consider: (1) whether Commissioner De La Cruz’s op-ed	12
expressed bias—or at a minimum gave rise to an impermissible appearance of	13
impropriety—and transformed the Board into a partial tribunal, which is a question	14
of law, see Siesta Hills Neighborhood Ass’n v. City of Albuquerque, 1998-NMCA-	15
028, ¶¶ 6, 20, 124 N.M. 670, 954 P.2d 102; and (2) whether the Board adequately	16
considered and voted on the Benavidez Petitioners’ due process challenge, which is	17
a question of “whether the district court erred in its review” of the proceedings	18
below. Paule, 2005-NMSC-021, ¶ 26 (stating that “[i]n administrative appeals, we	19
review the administrative decision under the same standard of review used by the	20
district court while also determining whether the district court erred in its review”).	21

23
{31} 	“Quasi-judicial has been defined as: [a] term applied to the action, discretion,	1
etc., of public administrative officers or bodies, who are required to investigate facts,	2
or ascertain the existence of facts, hold hearings, and draw conclusions from them,	3
as a basis for their official action, and to exercise discretion of a judicial nature.”	4
Dugger, 1992-NMCA-022, ¶ 6 (internal quotation marks and citation omitted).	5
Thus, “[q]uasi-judicial zoning matters are not politics-as-usual as far as the	6
municipal governing body is concerned. In such proceedings, the council does not	7
sit as a mini-legislature, as it functions in most matters, but instead must act like a	8
judicial body bound by ethical standards comparable to those that govern a court in	9
performing the same function.” Albuquerque Commons P’ship, 2008-NMSC-025,	10
¶ 33 (internal quotation marks and citation omitted).	11
{32} 	A 	quasi-judicial 	proceeding 	“carries 	with 	it 	important 	procedural	12
consequences,” including due process protections “requir[ing] a fair and impartial	13
hearing before a trier of fact who is disinterested and free from any form of bias or	14
predisposition regarding the outcome of the case.” Los Chavez Cmty. Ass’n, 2012-	15
NMCA-044, ¶ 20 (internal quotation marks and citation omitted). “[I]nterested	16
parties in a quasi-judicial zoning matter are entitled to an opportunity to be heard, to	17
an opportunity to present and rebut evidence, to a tribunal which is impartial in the	18
matter—i.e., having had no pre-hearing or ex parte contacts concerning the question	19
at issue—and to a record made and adequate findings executed.” Albuquerque	20

24
Commons P’ship, 2008-NMSC-025, ¶ 34 (internal quotation marks and citation	1
omitted).	2
{33} 	In considering whether Commissioner De La Cruz’s op-ed expressed bias, we	3
have said that city and county officials alike “must avoid acting or voting on matters	4
wherein they have a conflict of interest or their actions give rise to an appearance of	5
impropriety[.]” Siesta Hills Neighborhood Ass’n, 1998-NMCA-028, ¶ 20. While we	6
have recognized that city or county officials “are not expected to be so insulated	7
from their community as to require them to be detached from all issues coming	8
before them[,]” we have also held that where a city or county has “prejudged the	9
merits” of a particular matter, such prejudgment “give[s] rise to an appearance of	10
impropriety[.]” Los Chavez Cmty. Ass’n, 2012-NMCA-044, ¶ 25 (internal quotation	11
marks and citation omitted). It is this latter proposition we must explore here.	12
Because where a due process violation claim is based on alleged bias on the part of	13
the fact-finder, as here, “[t]he inquiry is not whether the [fact-finders] are actually	14
biased or prejudiced, but whether, in the natural course of events, there is an	15
indication of a possible temptation to an average [person] sitting as a judge to try the	16
case with bias for or against any issue presented[.]” Reid v. N.M. Bd. of Exam’rs in	17
Optometry, 1979-NMSC-005, ¶ 7, 92 N.M. 414, 589 P.2d 198.	18
{34} 	Here, Commissioner De La Cruz was tasked with impartially sitting on the	19
Board, as it was presented with and considered evidence to determine whether the	20

25
zone map amendment ought to be approved or disapproved. Yet, just before the	1
hearing he published his belief that Santolina was a “thoughtful, well-planned	2
development[]” representing “appropriate progress” for Bernalillo County. Such	3
prior statements by the fact-finder “indicating . . . prejudgment of the issues” are a	4
basis for disqualification, and failure to disqualify under such circumstances may	5
violate a person’s right to due process. Id. ¶ 9.	6
{35} 	However, “[o]ne should not infer from [our precedent] that a member of a	7
tribunal is necessarily disqualified whenever prior conduct of the member indicates	8
a view that would favor one party or the other.” Las Cruces Pro. Fire Fighters v.	9
City of Las Cruces, 1997-NMCA-031, ¶ 23, 123 N.M. 239, 938 P.2d 1384. To the	10
contrary, we have recognized that “[m]embers of tribunals are entitled to hold views	11
on policy, even strong views, and even views that are pertinent to the case before the	12
tribunal.” Id. ¶ 29. “[I]ndeed, they may well have been selected for their offices in	13
part on th[e] basis [of their histories or opinions].” Id. ¶ 26. “Recognition of this	14
reality counsels us against requiring that every decisionmaker start with a clean	15
slate.” Id. Accordingly, an official is not required to recuse himself simply because	16
he has previously expressed support for a particular policy. Id. Rather, a statement	17
or position is generally disqualifying only if it concerns the specific proposal or	18
action that is before the tribunal. See Carangelo v. Albuquerque-Bernalillo Cnty.	19
Water Util. Auth., 2014-NMCA-032, ¶ 70, 320 P.3d 492 (“Regardless of whether an	20

26
official is actually biased, he [or she] appears biased when he [or she] expresses	1
prejudgment of an issue in a pending case and will, therefore, need to recuse himself	2
[or herself] in most instances.”).	3
{36} 	Here, Commissioner De La Cruz’s op-ed announced and explained his	4
support, generally and specifically, for the matter under consideration by the Board	5
on which he served—Santolina and its future development. His comments were	6
published just two days prior to hearings which culminated in the Board’s approval	7
of the zone map amendment by a 3-2 vote, with Commissioner De La Cruz in the	8
majority. In the op-ed, Commissioner De La Cruz stated that he thought it was	9
“important for the public to know why [he] support[ed] thoughtful, well-planned	10
developments in Bernalillo County, such as . . . Santolina[.]” Commissioner De La	11
Cruz continued, stating that “[b]ecause growth is inevitable, . . . Santolina [is]	12
appropriate progress for [Bernalillo C]ounty.” As well, Commissioner De La Cruz	13
opined, “[b]y potentially denying Santolina or other [developments] like it, we send	14
the message that new residents are not welcome here.” Commissioner De La Cruz	15
went so far as to characterize opponents of Santolina as “spreading fear” throughout	16
Albuquerque’s South Valley and warned that “[s]hould the [C]ounty deny approval	17
of . . . Santolina . . ., there is nothing to prevent the owner from selling the land in	18
small parcels to multiple individual owners . . . [creating] a vast quiltwork of	19
ununified projects at best[,]” an outcome that he would rather avoid.	20

27
{37} 	This Court has previously resolved, in a recent unpublished opinion, the issue	1
of alleged bias from statements of a county commissioner. See Nichols v. Bd. of	2
Cnty. Comm’rs of Taos Cnty., No. A-1-CA-36002, mem. op. ¶ 13 (N.M. Ct. App.	3
Dec. 	31, 	2018) 	(non-precedential). 	In 	Nichols, 	the 	Taos 	County 	Board 	of	4
Commissioners considered and approved an administrative permit for improvements	5
to the Taos Regional Airport. Id. ¶ 1. In response, the Nichols’ petitioners appealed	6
to the board and, subsequently, to the district court, claiming that statements made	7
by two county commissioners during the administrative proceedings leading to the	8
permit approval constituted impermissible bias, thus violating the petitioners’ due	9
process rights to an impartial tribunal. Id. ¶¶ 11, 13. One of the commissioner’s	10
statements in Nichols appeared in an op-ed, published fifteen months prior to the	11
relevant board hearings, in which the commissioner expressed support for expansion	12
of the airport. Id. ¶ 13. The second commissioner’s statement, previously published	13
on social media during the commissioner’s campaign for election to the board,	14
“applauded” efforts to expand the airport and referred to such expansion as “a plus	15
from a public safety point of view.” Id. (internal quotation marks omitted).	16
{38} 	In Nichols, this Court concluded that the commissioners’ statements were not	17
made 	in 	reference to 	the 	specific 	proposal 	being 	considered 	by the 	county	18
commission—the 	proposed 	administrative 	permit 	for 	airport-related	19
improvements—but were statements of general public policy positions offering	20

28
“generic, out-of-context prior statements of support for airport expansion.” Id.	1
¶¶ 13-14. As such, we held that the district court correctly concluded that the	2
petitioners’ due process rights were not violated by the commissioners’ past	3
statements and subsequent, later participation in board proceedings. Id. ¶¶ 1, 15-16.	4
Here, in contrast to Nichols, Commissioner De La Cruz’s op-ed was published	5
immediately before the Board’s first hearing regarding the master plan, and, most	6
critically, the zone map amendment.	7
{39} 	We view our precedent on this topic to reflect the balance between two	8
priorities: (1) openness and clarity on the part of elected officials regarding matters	9
of importance to the community they serve, which permits general statements of	10
support for topics related to the performance of official responsibilities, and (2) the	11
need for such officials to refrain from prejudging specific cases or proposals. While	12
a commissioner’s “prejudgment or point of view about a question of law or policy,	13
even if so tenaciously held as to suggest a closed mind, is not, without more, a	14
disqualification[,]” Las Cruces Pro. Firefighters, 1997-NMCA-031, ¶ 24 (emphasis	15
added) 	(internal 	quotation 	marks 	and 	citation 	omitted), 	where, 	as 	here, 	a	16
commissioner’s statements concern the very proposal or action pending review	17
before the commission, such a statement may be disqualifying. See id. ¶ 12;	18
Carangelo, 2014-NMCA-032, ¶ 70. Moreover, when a commissioner’s statements	19
are made in close temporal proximity to the relevant hearing and specifically	20

29
criticize the perspective of opponents of the proposal, the case for finding them	1
disqualifying is strengthened. This is particularly so because there can be little doubt	2
that the statements were not based on evidence adduced at the not-yet-held hearings	3
but rather on information from some other source. Cf. Albuquerque Bernalillo Cnty.	4
Water Util. Auth. v. NMPRC, 2010-NMSC-013, ¶ 45, 148 N.M. 21, 229 P.3d 494	5
(explaining that it is not error for a commissioner to decline to recuse themselves	6
where the commissioner’s statements are based on evidence adduced from within	7
relevant proceedings rather than “on information obtained outside the course of the	8
proceedings” (omission, internal quotation marks, and citation omitted)).	9
{40} 	As such, and under our administrative standard of review wherein we refrain	10
from substituting our judgment for the district court as fact-finder, we cannot	11
conclude that the district court erred in finding that Commissioner De La Cruz’s op-	12
ed “raise[d] questions of partiality and prejudgment, or the appearance thereof,	13
sufficient to warrant”—and require—the Board’s consideration of the Benavidez	14
Petitioners’ motion requesting Commissioner De La Cruz’s recusal. In addition,	15
review of the record indicates that the Board did not adequately consider the	16
substance of the Benavidez Petitioners’ due process challenge; instead, they merely	17
concluded that they would not review that aspect of the matter further and proceeded	18
to deny the Benavidez Petitioners’ appeal. We hold, therefore, that the district court	19
did not err in reversing the Board’s approval of the zone map amendment, and in	20

30
ultimately remanding consideration of the zone map amendment’s approval to the	1
Board for further proceedings.	2
{41} 	We take this moment to clarify that on remand, the tasks before the current	3
Board are (1) to again hear the Benavidez Petitioners’ appeal of the Planning	4
Commission’s recommendation that the Board approve the zone map amendment,	5
and (2) to ensure, as directed by the district court, that current Board members have	6
“assure[d] themselves and their constituents that they are free of conflicts of interest	7
and without partiality or prejudgment in the matter.” We note that the (current)	8
Board need not determine whether Commissioner De La Cruz’s op-ed did or did not	9
express impermissible bias given Commissioner De La Cruz no longer serves on the	10
Board and will therefore not participate in proceedings on remand.	11
V. 	The Development Agreement Does 	Not Constitute Zoning 	and the	12
Board’s Approval of the Development Agreement Was Not a Zoning	13
Decision	14
{42} 	On appeal, the Fernandez Petitioners argue that the development agreement—	15
though undisputedly a contract between WALH, Consensus Planning, and the	16
Board— constitutes zoning and the approval thereof was an invalid zoning decision.	17
This presents a question of law we review de novo. Rio Grande Chapter of the Sierra	18
Club, 2003-NMSC-005, ¶ 17.	19
{43} 	The purpose of the development agreement is to	20

31
[(1)] codify the [m]aster [p]lan and the [l]and [u]se [p]lan, . . . [(2)]	1
outline a preliminary infrastructure/service agreement to cover phasing	2
of the [m]aster [p]lan, . . . [(3)] commit to mitigation of negative	3
consequences of development when known, [(4)] provide an assignable	4
agreement under mutually agreeable terms which will be permanent	5
unless renegotiated, [(5)] provide a document suitable for recording,	6
and [(6)] identify incentives to be provided by the County to [WALH].	7
The development agreement states that its effect “is contingent upon action by the	8
[g]overning [b]ody approving the [m]aster [p]lan, the [l]and [u]se [p]lan,” the zone	9
map 	amendment, 	and 	the 	development 	agreement, 	itself. 	The 	development	10
agreement includes many recognizable features of a contract, including a provision	11
specifying that WALH would be responsible for mitigating negative impacts	12
resulting from development, an explanation of the parties’ rights, and a provision	13
specifying that the development agreement is assignable. As well, the development	14
agreement includes provisions allocating responsibility for various infrastructure,	15
such as roadways, industrial development, storm water drainage, water and sewer	16
and open space, parks, recreation, and trail facilities. The development agreement	17
does not include, however, any language that indicates it is a contract that zones or	18
rezones any property.	19
{44} 	The Fernandez Petitioners contend otherwise because: (1) the development	20
agreement was discussed and approved at a public zoning hearing; (2) the Board was	21
acting as a “zoning authority” during the public meetings and hearings related to	22
Santolina; and (3) the development agreement was enacted under zoning and	23

32
planning 	authority. 	We 	are 	unpersuaded. 	Rather, 	it 	is 	undisputed 	that 	the	1
development agreement is a contract between WALH, Consensus Planning, and the	2
Board. As the district court pointed out, within that contract the Fernandez	3
Petitioners identified no language that expressly or impliedly compels changes to	4
zoning. The Fernandez Petitioners cite to multiple inapposite cases to support their	5
contentions, but none involve the approval of a contract between parties, like the	6
development agreement. Rather, the cited cases involve the adoption of an ordinance	7
requiring special use permits, the adoption of a development plan which included	8
zoning restrictions related to the approval of covenants, the approval of a settlement	9
agreement, and the approval of restrictive covenants.7 The Fernandez Petitioners	10
present no other authority to support their contentions, and as such we may assume	11
no on point authority exists. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031,	12
7See Bd. of Cnty. Comm’rs of San Miguel Cnty. v. City of Las Vegas, 1980-
NMSC-137, ¶¶ 1, 12, 95 N.M. 387, 622 P.2d 695 (holding that the adoption of an
ordinance authorizing the board of county commissioners to require special use
permits for the use of landfills was a zoning decision because “zoning is defined as
governmental regulation of the uses of land and buildings according to districts or
zones” 	(internal 	quotation 	marks 	and 	citation 	omitted)); 	Nesbit 	v. 	City 	of
Albuquerque, 1977-NMSC-107, ¶ 5, 91 N.M. 455, 575 P.2d 1340 (holding that a
development plan restricting the use of land such that it “can be used for no other
purpose” constitutes zoning); Lewis v. City of Santa Fe, 2005-NMCA-032, ¶ 3, 137
N.M. 152, 108 P.3d 558 (holding that the city council’s approval of a settlement
agreement in which the city agreed to approve the construction of a gas station was
a zoning decision); Vill. of Los Ranchos de Albuquerque v. Shiveley, 1989-NMCA-
095, ¶¶ 7, 21, 23, 110 N.M. 15, 791 P.2d 466 (holding that covenants required and
recorded with an approved plat are in effect a rezoning because such covenants
“embody a rezoning of the area within the subdivision”).

33
¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we	1
may 	assume 	no 	such 	authority 	exists.”). 	Finally, 	the 	Fernandez 	Petitioners’	2
arguments that the development agreement constituted illegal contract zoning and	3
should have been first approved by the Planning Commission rest solely on their	4
initial contention that the development agreement constituted zoning. Because we	5
agree with the district court that it did not, it follows that those latter claims fail.	6
VI. 	The Lack of Either a Final, Written Order or a Statutory Right of Appeal	7
Precluded the District Court’s Review of the Board’s Approval of the	8
Development Agreement	9
{45} 	The Fernandez Petitioners appeal from the district court’s amended order	10
ruling that the Board’s approval of the development agreement was not appealable	11
because there was no final, written order from the Board regarding that action. The	12
Fernandez Petitioners argue the district court’s dismissal of their administrative	13
appeal on such basis was error. The underlying issue is whether—considering the	14
lack of a final, written order—the district court had jurisdiction to review the	15
Fernandez Petitioners’ administrative appeal, and such is a question we review de	16
novo. See Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d	17
300 (“[T]he question of whether a trial court has jurisdiction in a particular case is a	18
question of law that we review de novo[.]”); Rio Grande Chapter of Sierra Club,	19
2003-NMSC-005, ¶ 17.	20

34
{46} 	Both the Benavidez Petitioners and the Fernandez Petitioners sought to appeal	1
the Board’s decision to approve the development agreement to the district court	2
under Rule 1-074 NMRA. In order to pursue such an appeal, however, there must	3
be a statutory right of appeal to the district court. See Rule 1-074(A), (B). The	4
Fernandez Petitioners argue that such a statutory right is found in NMSA 1978	5
Section 3-21-9 (1999), NMSA 1978, Section 3-19-8 (1999), and NMSA 1978,	6
Section 39-3-1.1 (1999). However, the statutory right to an appeal under Section 3-	7
21-9 exists only when the appealed decision involves zoning or a planning decision.	8
See id. (“A person aggrieved by a decision of the zoning authority or any officer,	9
department, board or bureau of the zoning authority may appeal the decision	10
pursuant to the provisions of Section 39-3-1.1[.]”). Having concluded above that the	11
development agreement does involve zoning and the approval thereof was not a	12
zoning decision, we agree with the district court that the Fernandez Petitioners did	13
not have a statutory right of appeal under Rule 1-074 and, therefore, the Fernandez	14
Petitioners’ administrative appeal was properly dismissed.	15
{47} 	As such, and consistent with the district court’s decisions in both cases, we	16
hold that the district court properly dismissed Petitioners’ administrative appeals,	17
recognizing that we do so relying on a different basis than that of the district court.	18
See Lynn Hawkins v. McDonald’s, 2014-NMCA-048, ¶ 23, 323 P.3d 932 (“Under	19
the right for any reason doctrine, we may affirm the district court’s order on grounds	20

35
not relied upon by the district court if those grounds do not require us to look beyond	1
the factual allegations that were raised and considered below.” (internal quotation	2
marks and citation omitted)).	3
VII. 	The District Court Properly Dismissed the Fernandez Petitioners’ Claim	4
Regarding a Violation of the Open Meetings Act	5
{48} 	The Fernandez Petitioners argue the district court erred in dismissing their	6
OMA action for failure to state a claim, arguing that we should instead award	7
summary judgment in their favor on those claims. We review this issue de novo. See	8
Schmidt v. Tavenner’s Towing & Recovery, LLC, 2019-NMCA-050, ¶ 4, 448 P.3d	9
605 (“A district court’s decision to dismiss a case for failure to state a claim under	10
Rule 1-012(B)(6) [NMRA] is reviewed de novo.” (internal quotation marks and	11
citation omitted)); Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17.	12
{49} 	“The purpose of [the OMA] is to open the conduct of the business of	13
government to the scrutiny of the public and to ban decision-making in secret.”	14
Kleinberg v. Bd. of Educ. of Albuquerque Pub. Sch., 1988-NMCA-014, ¶ 18, 107	15
N.M. 38, 751 P.2d 722 (internal quotation marks and citation omitted). Under the	16
OMA, “the public policy of [the state] is that all persons are entitled to the greatest	17
possible information regarding the affairs of government and the official acts of	18
those officers and employees who represent them.” N.M. State Inv. Council v.	19
Weinstein, 2016-NMCA-069, ¶ 73, 382 P.3d 923 (alterations, internal quotation	20
marks, and citation omitted). In pertinent part, the OMA provides:	21

36
All meetings of a quorum of members of any board, commission,	1
administrative adjudicatory body or other policy[-]making body of any	2
state agency . . ., held for the purpose of formulating public policy, . . .	3
discussing public business or taking any action within the authority of	4
or 	the 	delegated 	authority 	of 	any 	board, commission 	or other	5
policymaking body are declared to be public meetings open to the	6
public at all times, except as otherwise provided in the constitution of	7
New Mexico or the [OMA].	8
NMSA 1978, § 10-15-1(B) (2013). “Procedural defects in compliance with the	9
OMA may be cured by taking prompt corrective action.” Weinstein, 2016-NMCA-	10
069, ¶ 86 (alterations, internal quotation marks, and citation omitted).	11
{50} 	The Fernandez Petitioners claim the development agreement was negotiated	12
and approved in violation of the OMA, contending that: (1) the development	13
agreement establishes County policy for Santolina; (2) the Board impermissibly	14
delegated its authority to the Bernalillo County Manager’s Office to negotiate the	15
development agreement; (3) the County Manager’s Officer conducted closed	16
meetings with County staff members, WALH, and Consensus Planning to negotiate	17
the development agreement prior to its review by the Board; (4) the County	18
Manager’s Office, functioning on behalf of the Board, was a policy-making body	19
for the negotiation of the development agreement; (5) the meetings in which the	20
development agreement was negotiated prior to its review by the Board were subject	21
to the OMA; and (6) such negotiation meetings did not comply with the OMA.	22

37
{51} 	To resolve the Fernandez Petitioners’ claims, we first address whether the	1
development agreement’s negotiation and approval process was subject to the OMA.	2
In considering whether an entity or proceeding is subject to OMA, “it is the nature	3
of the act performed by the committee, not its makeup or proximity to the final	4
decision, which determines whether an advisory committee [or other comparable	5
entity] is subject to open meetings statutes.” Id. ¶ 75 (internal quotation marks and	6
citation omitted). A non-statutory committee, like the working group comprised of	7
Bernalillo County staff and WALH in this case, “may constitute a policy-making	8
body subject to the OMA if it makes any decisions on behalf of, formulates	9
recommendations that are binding in any legal or practical way on, or otherwise	10
establishes policy for the public body. A public body may not evade its obligations	11
under the OMA by delegating its responsibilities for making decisions and taking	12
final action to a committee.” Id. (alterations, internal quotation marks, and citation	13
omitted).	14
{52} 	Here, the Fernandez Petitioners argue that the Board impermissibly delegated	15
its authority to the Bernalillo County Manager’s Office and the working group to	16
negotiate the development agreement in violation of the OMA. In Weinstein, we	17
considered the question of whether the New Mexico State Investment Council	18
(NMSIC) and its litigation committee complied with the OMA in negotiating	19
settlements under the Fraud Against Taxpayers Act. Id. ¶ 2. There, this Court	20

38
concluded that the litigation committee was subject to the OMA because it was	1
“intended to be a policy-making body and its meetings were for the purpose of taking	2
an action within the authority of NMSIC . . . which is unquestionably subject to the	3
OMA[.]” 	Id. 	¶ 75 (alteration omitted). We further concluded that NMSIC’s	4
“attempt[ ] to delegate its authority to take action on the settlements to the [litigation	5
c]ommittee” was in direct contravention of “the OMA’s purpose to permit a public	6
body to avoid the OMA’s requirements simply by delegation its responsibilities to a	7
smaller body.” Id.	8
{53} 	In contrast to the litigation committee in Weinstein, the working group here	9
had no authority to act in a way that could bind the Board to any action or decision	10
it negotiated or developed, including the development agreement. Rather, the	11
working group drafted the development agreement in order for it to be handed off to	12
the Board, and it was subsequently the Board—not the working group—that heard	13
public comments on the draft and adopted revisions prior to its vote to approve the	14
development agreement. The working group was not delegated the responsibility of	15
taking action under the authority of the Board as the litigation committee was in	16
Weinstein. Instead, the working group here merely functioned as the initial drafters	17
of the development agreement rather than a policy-making body intended to act with	18
the authority of the Board. For these reasons, we conclude the development	19
agreement’s creation, development, and negotiation process conducted by the	20

39
working group was not subject to the OMA and, therefore, no violation of the OMA	1
occurred. Accordingly, we affirm the district court’s dismissal of the Fernandez	2
Petitioners’ OMA claim.	3
VIII. Enactment 	of 	the 	Zone 	Map 	Amendment 	Did 	Not 	Require 	the	4
Development 	Agreement 	to 	be 	Simultaneously 	Approved 	and 	Our	5
Remand of the Zone Map Amendment Does Not Render the Development	6
Agreement Invalid	7
{54} 	Incorporating their above arguments regarding the development agreement,	8
the Fernandez Petitioners argue that the enactment of the zone map amendment was	9
unlawful because the relevant zoning ordinance required a development agreement	10
as part of the zone map amendment. As the district court made clear, the Fernandez	11
Petitioners are correct that the Board had neither considered nor entered into the	12
development agreement at the time it adopted the zone map amendment. The Board	13
enacted the zone map amendment on June 16, 2015, and approved the final version	14
of the development agreement on June 24, 2015. The Fernandez Petitioners cite no	15
authority to support the proposition that the Board was required to consider the	16
development agreement simultaneously to its review and approval of the zone map	17
amendment, and as such we assume no such authority exists. See In re Adoption of	18
Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. We reiterate the district	19
court’s finding that nothing in the zoning code required the Board to enter the	20
development agreement before or simultaneously with the zone map amendment,	21
and agree that, as such, the Board’s consideration of the development agreement was	22

40
timely. See Bernalillo County, N.M., Code § 19.5(A)(2). Under our administrative	1
standard of review, we cannot conclude the district court erred in making such	2
findings, and thus we affirm. See Paule, 2005-NMSC-021, ¶ 26.	3
{55} 	The 	Fernandez 	Petitioners 	also 	argue 	that 	reversal 	of 	the 	zone 	map	4
amendment renders the development agreement invalid. Although Section 3.3 of the	5
development agreement states that it “is contingent upon action by the [g]overning	6
[b]ody approving the [m]aster [p]lan, the [l]and [u]se [p]lan, [the zone map	7
amendment, and this development a]greement,” we do not interpret this language to	8
state that approval of the zone map amendment was a condition precedent to the	9
validity of the development agreement, and the Fernandez Petitioners have failed to	10
develop an argument on this point. See W. Com. Bank v. Gillespie, 1989-NMSC-	11
046, ¶ 4, 108 N.M. 535, 775 P.2d 737 (“Generally, a condition precedent is an event	12
occurring subsequently to the formation of a valid contract, an event that must occur	13
before there is a right to an immediate performance, before there is breach of a	14
contractual duty, and before the usual judicial remedies are available. Whether	15
conditions precedent are considered prerequisites to formation of a contract or	16
prerequisites to an obligation to perform under an existing agreement is controlled	17
by the intent of the parties.” (citation omitted)); see also Elane Photography, LLC v.	18
Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed	19
issue, this Court would have to develop the arguments itself, effectively performing	20

41
the parties’ work for them.”). The Fernandez Petitioners have not established that	1
the development agreement is rendered invalid by virtue of our remand on the zoning	2
issue 	and 	we, 	therefore, 	hold 	that 	the 	development 	agreement 	is 	valid, 	its	3
enforceability and function pending future approval of the zone map amendment by	4
the Board.	5
CONCLUSION	6
{56} 	For the above reasons, we affirm the district court’s rulings in both cases and	7
remand the zone map amendment to the Board with instructions that it make	8
determinations, in a manner consistent with this opinion, of whether the zone map	9
amendment shall be approved.	10
{57} 	IT IS SO ORDERED.	11
_____________________________	12
J. MILES HANISEE, Chief Judge	13
WE CONCUR:	14
15
MEGAN P. DUFFY, Judge	16
17
MICHAEL D. BUSTAMANTE, Judge Pro Tempore	18