CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. M-26-1 ENACTMENT NO. ___________________
SPONSORED BY: Dan Lewis
MEMORIAL
title
Urging The State Legislature To Remove Statutory Restrictions On Municipal Authority To Set Standing Requirements For Zoning Appeals (Lewis)
body
URGING THE STATE LEGISLATURE TO REMOVE STATUTORY RESTRICTIONS ON MUNICIPAL AUTHORITY TO SET STANDING REQUIREMENTS FOR ZONING APPEALS.
WHEREAS, the New Mexico Constitution enshrines municipal home rule power, emphasizing that municipalities enjoy maximum local self-government and that a liberal construction should be given to the powers of municipalities; and
WHEREAS, the New Mexico Constitution further states that a municipality may exercise all legislative powers and perform all functions not expressly denied by general law or charter; and
WHERAS, New Mexico law enumerates the powers of municipalities, including the power to enter into contracts or leases, acquire and hold property, protect its property and its inhabitants, and preserve peace and order; and
WHEREAS, pursuant to NMSA 1978, Section 3-21-1, consistent with this constitutional grant of power and statutorily enumerated powers, New Mexico law expressly provides that a municipality is a zoning authority and may regulate and restrict zoning for the purpose of promoting health safety, morals, or general welfare; and
WHEREAS, NMSA 1978, Section 3-21-8(B) allows a person, officer, department, board, or bureau aggrieved of a zoning decision of any administrative officer, commission, or committee to appeal to the applicable zoning authority; and
WHEREAS, NMSA 1978, Section 3-21-9 provides that a person “aggrieved” by a decision of the zoning authority or any officer, department, board, or bureau of the zoning authority may further appeal the decision to District Court; and
WHEREAS, NMSA 1978, Sections 3-21-8 and 3-21-9 impose a single statewide standing standard for zoning appeals on every municipality, regardless of its size, charter, or local procedures; and
WHEREAS, a single statewide standard limits home rule municipalities’ ability to tailor appeal procedures to local conditions, contrary to the principle of maximum local self-government in Article X, Section 6 of the New Mexico Constitution; and
WHEREAS, municipal governing bodies are directly accountable to the residents affected by local land use decisions and are best positioned to balance housing needs, neighborhood participation, and environmental justice; and
WHEREAS, this Memorial does not ask the Legislature to change standing in any municipality, but only to allow each municipality to decide for itself, and a municipality that takes no action would operate under the existing standard; and
WHEREAS, because zoning appeal standing standards are established by state statute, the State Legislature is the only body that can make the changes to state statute by subsequent legislation.
BE IT MEMORIALIZED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. The Albuquerque City Council urges the State Legislature to propose and enact revisions to NMSA 1978, Sections 3-21-8 and 3-21-9 to achieve the purposes and justifications stated in this Memorial.
SECTION 2. To affect the purposes of this Memorial, the Albuquerque City Council respectfully proposes that the State Legislature revise NMSA 1978, Sections 3-21-8 and 3-21-9 as follows:
§ 3-21-8. Appeals to zoning authority; grounds; stay of proceedings.
A. The zoning authority shall provide by resolution the procedure to be followed in considering appeals allowed by this section.
B. Any aggrieved person or any officer, department, board or bureau of the zoning authority affected by a decision of an administrative officer, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or ordinance, resolution, rule or regulation adopted pursuant to these sections may appeal to the zoning authority. [The zoning authority may, by ordinance, define the circumstances under which a person is considered “aggrieved” for purposes of an appeal under this section. A municipality that does not adopt such an ordinance shall apply the standard set forth in this section.] An appeal shall stay all proceedings in furtherance of the action appealed unless the officer, commission or committee from whom the appeal is taken certifies that by reason of facts stated in the certificate, a stay would cause imminent peril of life or property. Upon certification, the proceedings shall not be stayed except by order of District Court after notice to the official, commission or committee from whom the appeal is taken and on due cause shown.
§ 3-21-9. Zoning; appeal.
A person aggrieved by a decision of the zoning authority or any officer, department, board or bureau of the zoning authority may appeal the decision pursuant to the provisions of Section 39-3-1.1 NMSA 1978. [The zoning authority may, by ordinance, define the circumstances under which a person is considered “aggrieved” for purposes of an appeal under this section. A municipality that does not adopt such an ordinance shall apply the standard set forth in this section.]
SECTION 3. Alternatively, the Albuquerque City Council urges the Legislature to propose and enact other revisions to the Municipal Code (NMSA 1978, Chapter 3) that would allow municipalities to establish their own standing requirements, consistent with principles of Constitutional home rule and statutory powers granted to municipalities to achieve maximum local self-governance.
SECTION 4. The City Clerk is directed to transmit copies of the Memorial to the City of Albuquerque State Legislative Delegation, the New Mexico Legislature, the Governor of New Mexico, the New Mexico Municipal League, and other appropriate state agencies.
X:\CL\SHARE\CL-Staff\_Legislative Staff\Legislation\27 Council\M-1final.docx