March 21, 2011 – Barbara Waggoner, Floyd Eugene Waggoner, James H. Tooley, Angela Tooley, James Poe, Nova Poe, Gregory E. Johnson, Partricia Johnson, Johnathan Boldt, Sita Boldt, Dennis Muncrief, Marily Muncrief, Tony Smith, Glen Wilkins, Cherie Black, James Baugh, Mary Baugh, James R. Dickerson, Mick Vaskov, Lynda Vaskov, Aldon Pierce, Carmen Pierce, Robert H. Thune, Janet Thune, Joseph Lee, June Lee, and Charles M. Andrews v. The Town of Mesilla, New Mexico; The Board of Trustees of the Town of Mesilla, New Mexico; and Michael Cadena, Mayor of the Town of Mesilla, New Mexico, No. 29,376

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

Filing Date: _March 21, 2011

NO. 29,376

BARBARA WAGGONER, FLOYD EUGENE
WAGGONER, JAMES H. TOOLEY, ANGELA
TOOLEY, JAMES POE, NOVA POE, GREGORY
E. JOHNSON, PATRICIA JOHNSON, JOHNATHON
BOLDT, SITA BOLDT, DENNIS MUNCRIEF,
MARILYN MUNCRIEF, TONY SMITH, GLEN
WILKINS, CHERIE BLACK, JAMES BAUGH,
MARY BAUGH, JAMES R. DICKERSON, MICK
VASKOV, LYNDA VASKOV, ALDON PIERCE,
CARMEN PIERCE, ROBERT H. THUNE, JANET
THUNE, JOSEPH LEE, JUNE LEE, and CHARLES
M. ANDREWS,

Plaintiffs-A ppellants,
V.

THE TOWN OF MESILLA, NEW MEXICO;

‘THE BOARD OF TRUSTEES OF THE TOWN

OF MESILLA, NEW MEXICO; and MICHAEL
CADENA, MAYOR OF THE TOWN OF MESILLA,
NEW MEXICO,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Jerald A. Valentine, District J udge

Sutin, Thayer & Browne, P.C.
Kerry Kiernan
Albuquerque, NM
Scott Hulse, PC
Robert R. Feuille
El Paso, TX
for Appellants
Cervantes Law Firm, P.C.
K. Joseph Cervantes
Las Cruces, NM
L. Helen Bennett
Albuquerque, NM
for Appellees

OPINION
CASTILLO, Chief Judge.
{1} 	In this case, we examine whether an annexation by the petition method was
carried out in accord with the procedural requirements of NMSA 1978, Section 3-7-
17.1 (2003). We hold that it was not and conclude that the annexation was invalid.
I. 	BACKGROUND
{2} 	In 2007, a number of individuals owning property contiguous to the boundaries
of the Town of Mesilla (Mesilla) approached the Mesilla Board of Trustees (BOT) and
expressed an interest in annexation. Mesilla was receptive to the property owner’s
inquiries—Mesilla’s 2004 comprehensive plan contemplated annexation of this
territory. 	Mesilla provided the property owners with assistance in initiating an
annexation through the petition method.
{3} 	The property owners’ and Mesilla’s efforts came to a successful conclusion in
December 2007 when Mesilla voted to adopt Mesilla, N.M., Ordinance 2007-13
(2007) approving the annexation of approximately 788 acres contiguous to the then
existing municipal boundaries of Mesilla. This outcome did not, however, please all
interested parties.
{4} 	Barbara Waggoner and several other individuals (collectively, Waggoner) who
either own land within the annexed territory or are otherwise interested parties

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opposed the annexation. 	In March 2008, after Ordinance 2007-13 had passed,
Waggoner filed a complaint in district court requesting that the court overturn the
annexation ordinance and/or enter judgment declaring the annexation ordinance to be
illegal.
{5} 	In January 2009, the district court dismissed Waggoner’s complaint and
concluded that Mesilla “acted legally and constitutionally when it adopted Ordinance
2007-13.” Waggoner appeals this decision.
II. 	DISCUSSION
{6} 	On appeal, Waggoner asserts that Ordinance 2007-13 is void and asks us to
reverse the district court and remand with instructions to enter an order invalidating
the annexation. Waggoner makes five claims in support of this request. Three of her
claims share a single premise: that the annexation was not carried out in accordance
with the procedural mandates of Section 3-7-17.1, which governs annexations by
petition in Class A counties. 	Both parties agree this statute is controlling here.
Waggoner specifically argues that the annexation was not carried out in compliance
Section 3-7-17.1(B)(2). We are persuaded by this argument and, on this ground alone,
conclude that the annexation is invalid. 	See State ex rel. State Highway & Transp.
Dep’t v. City of Sunland Park, 1999-NMCA-143, ¶ 27, 128 N.M. 371, 993 P.2d 85
(setting aside an annexation on grounds that it was not carried out in compliance with

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the governing annexation statutes). Accordingly, we need not address Waggoner’s
other arguments. We begin, however, by reviewing the language of the statute and
our standard of review.
{7} 	Section 3-7-17.1 provides the following:
A. 	A petition seeking the annexation of territory contiguous to
a municipality . . . shall be presented to the city council and be
accompanied by a map that shows the external boundary of the territory
proposed to be annexed and the relationship of the territory proposed to
be annexed to the existing boundary of the municipality.
B. 	If the petition is signed by the owners of a majority of the
number of acres in the contiguous territory:
(1) 	the city council shall submit the petition to the board
of county commissioners of the county in which the municipality is
located for its review and comment. Any comments shall be submitted
by the board of county commissioners to the city council within thirty
days of receipt; and
(2) 	not less than thirty days nor more than sixty days
after receiving the petition, the city council shall by ordinance approve
or disapprove the annexation after considering any comments submitted
by the board of county commissioners.
{8} 	“Our review of the annexation ordinance is limited to consideration of whether
it was enacted in accordance with the governing statute.” City of Sunland Park, 1999-
NMCA-143, ¶ 17. To the extent this requires us to interpret Section 3-7-17.1, our
review is de novo. 	Santa Fe County Bd. of Cnty. Comm’rs v. Town of Edgewood,
2004-NMCA-111, ¶ 4, 136 N.M. 301, 97 P.3d 633. In construing the language of

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Section 3-7-17.1, our “guiding principle is to give effect to the intent of the
[L]egislature” and, in doing so, we “employ the ‘plain meaning rule’ to determine if
the language unambiguously sets forth the legislative intent.” 	Town of Edgewood,
2004-NMCA-111, ¶ 5. Where the language of Section 3-7-17.1 “is clear and explicit,
the annexation must be exercised in the circumstances and the manner prescribed in
the statute.” City of Sunland Park, 1999-NMCA-143, ¶ 21 (internal quotation marks
and citation omitted).
{9} 	As noted, Waggoner asserts that the process which led to the annexation of the
788 acres did not comport with Section 3-7-17.1, and specifically Section 3-7-
17.1(B)(2). Waggoner claims that, under this specific provision, Mesilla was required
to approve Ordinance 2007-13 within thirty to sixty days after it first received the
petition from the petitioners but failed to do so. The facts underlying this claim are
undisputed.
{10} 	Mesilla generated and circulated a petition form that land owners who were
supportive of the annexation signed. 	Sixty-five signed copies of this form are
included in the record proper. 	On October 9, 2007, all of the signed forms were
submitted to the 	BOT, together with a map prepared by an employee of Mesilla.
Mesilla mailed the petition forms and the map to the Doña Ana County commissioners
(the 	County) 	on 	October 	10, 	2007. 	The 	petition 	proposed 	annexation 	of

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approximately 739 acres. The County, in a letter mailed on October 23, 2007, which
Mesilla received on November 1, 2007, proposed that Mesilla annex roughly 2,200
acres. Mesilla passed Ordinance 2007-13 on December 26, 2007, and annexed 788
acres.
{11} 	The pertinent portions of Section 3-7-17.1(B)(2) provide that “not less than
thirty days nor more than sixty days after receiving the petition, the city council shall
by ordinance approve or disapprove the annexation.” The parties disagree about the
meaning of the term “after receiving the petition.” According to Waggoner, this term
refers to the date the BOT first received the petitions from the petitioners, on October
9, 2007. Mesilla counters that this term refers to the date it received the petitions back
from the County with the County’s comments; this occurred on November 1, 2007.
As noted, the ordinance was passed on December 26, 2007. This date is beyond the
thirty- to sixty-day window if the triggering date is October 9, 2007, as Waggoner
argues, but is within that window if the triggering date is November 1, 2007, as
Mesilla argues.
{12} 	We agree with Waggoner’s reading of the statute. 	First, Waggoner’s
interpretation is supported by the plain language of Section 3-7-17.1(B)(2). “The text
of a statute or rule is the primary, essential source of its meaning.” 	NMSA 1978,
§ 12-2A-19 (1997). Unless an intent to do otherwise is clearly manifested, a statute

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is to be read and given effect as written and words used in that statute are to be given
their ordinary and usual meanings. Gonzales v. Oil, Chem. & Atomic Workers Int’l
Union, AFL-CIO, 77 N.M. 61, 68, 419 P.2d 257, 262 (1966). We interpret the words
“after receiving the petition” to mean, as these words plainly mean, the date Mesilla
received the petition. Mesilla received the petition from the petitioners on October 9,
2007. Second, Mesilla’s interpretation necessarily requires us to read words into the
statute that are not present. The argument in Mesilla’s answer brief illustrates this
point. There, Mesilla wrote the following: “Mesilla . . . interpreted this language as
requiring action within [sixty] days from receiving the petition back from the County.”
The words “back from the County” are not in the statute. Third, although Mesilla was
required to submit the petition to the County, the statute does not require the County
to respond. Rather, the County merely has the option of responding with comments.
Accordingly, it makes little sense to connect the term “after receiving the petition”
with the County. 	If we interpret the term “after receiving the petition” as Mesilla
suggests, it is possible that in future cases, where a county chooses not to respond, the
timing provision would effectively be nullified.
{13} 	For these reasons, we conclude that the term “after receiving the petition” refers
to the date when Mesilla first received the petition from the petitioners on October 9,
2007. Accordingly, Mesilla was required to approve or disapprove the annexation by

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ordinance no later than December 8, 2007, sixty days later. Mesilla failed to do so,
and this procedural error renders the annexation invalid. See City of Sunland Park,
1999-NMCA-143, ¶ 27.
{14} 	Throughout its answer brief, Mesilla relies on the principle of substantial
compliance and argues that any procedural defects it may have committed should be
overlooked because, Mesilla claims, it substantially complied with the requirements
of Section 3-7-17.1. Though our Supreme Court has previously relied on this doctrine
to uphold a challenged annexation by petition, we do not agree the doctrine is
applicable here.
{15} 	In Hughes v. City of Carlsbad, 53 N.M. 150, 152, 203 P.2d 995, 996 (1949),
some two hundred individuals as plaintiffs brought suit to enjoin the City of Carlsbad
from annexing land. As in the present case, the annexation was by petition, but under
a 1941 annexation statute. Id. Like Waggoner, the plaintiffs in Hughes claimed that
the annexation proceedings were defective. Id. at 157-58, 203 P.2d at 999-1000. The
plaintiffs pointed out that the petitioners were statutorily required to have submitted
both a plat and a survey and, yet, it was undisputed that only a plat had been
submitted. 	Id. at 157, 203 P.2d at 999. Our Supreme Court responded that “a plat
represents an ocular view of the result of a survey—a visual demonstration of the
work done” and concluded that “it would sacrifice substance to form to say there had

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not been substantial compliance with the statutory requirement.” Id. at 158, 203 P.2d
at 1000.
{16} 	The present matter is distinguishable from Hughes. 	There, the petitioners
complied with the substantive portions of the statute, and it was debatable whether the
petition was truly defective in light of the fact that a plat necessarily involved a
survey. Here, Mesilla failed to comply with a substantive provision of Section 3-7-
17.1. The doctrine of substantial compliance is inapplicable.
III. 	CONCLUSION
{17} 	Mesilla failed to approve the annexation by ordinance within sixty days after
first receiving the petition as is required under Section 3-7-17.1(B)(2). The doctrine
of substantial compliance is inapplicable here. We hold that the annexation is invalid.
We need not address Waggoner’s other arguments on appeal. 	The district court’s
order upholding the annexation is reversed. 	This matter is remanded for further
proceedings consistent with this opinion.
{18} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

MICHAEL E. VIGIL, Judge

LINDA M. VANZI, Judge