Appendix — City Council of Albuquerque v. Albuquerque Commons Partnership

la

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF NEW MEXICO

No. 24,026; consolidated with

24,027; 24,042; and 24,425

Filing Date: May 7, 2009

ALBUQUERQUE COMMONS PARTNERSHIP,

Petitioner-Appellee,

Vv.

CITY COUNCIL OF THE CITY OF ALBUQUERQUE,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT

OF BERNALILLO COUNTY

Susan M. Conway and William F. Lang,

District Judges

OPINION

CASTILLO, Judge.

{1} On motion for rehearing, the opinion filed Octo-

ber 30, 2008, is withdrawn, and the following opinion

is substituted in its place. The motion for rehearing

is otherwise denied.

2a

{2} The operable event that forms the basis for

these consolidated cases’ occurred over thirteen years

ago when the Albuquerque City Council (City)

adopted the 1995 Uptown Sector Plan (1995 USP),

which affected property leased by Albuquerque

Commons Partnership (ACP). Until 1995, the leased

property was governed by the 1981 Uptown Sector

Plan (1981 USP). In 1991, ACP selected Opus

Southwest Corporation (Opus) as the buyer for the

leasehold. Opus submitted a site plan for the prop-

erty in June 1994 and then, in July 1994, withdrew

the plan because of public outcry. In September 1994,

the City requested a comprehensive overview of the

1981 USP. Before the City could complete the over-

view, Opus submitted another site plan (ACP/Opus

site plan). The City deferred consideration of the

ACP/Opus site plan and implemented an expedited

schedule to evaluate proposed revisions to the 1981

USP. The City ultimately adopted the 1995 USP.

{3} ACP sought review of the City’s adoption of the

1995 USP in the trial court. ACP also claimed dam-

ages under 42 U.S.C. § 1983 (2000) for violations of

due process and for an unconstitutional taking in

violation of the Fifth Amendment. Concluding that

the 1995 USP was enacted contrary to law as applied

to ACP, the trial court ordered the City to consider

the ACP/Opus site plan under the 1981 USP. The

City complied and ultimately rejected the ACP/Opus

site plan under the 1981 USP. The claims for dam-

ages continued to trial, and the jury found for ACP on

both the due process and the takings claims. The

1 The City separately appealed a jury verdict and two whole-

record reviews that were conducted by the trial court of the

City’s decisions regarding ACP’s development of the property.

On a motion by the City, we consolidated the three appeals.

3a

takings verdict was dismissed pursuant to the doc-

trine of election of remedies.

{4} ACP appealed to this Court, and we reversed.

Albuquerque Commons P’ship v. City Council of the

City of Albuquerque (ACP II), 2006-NMCA-143, { 2,

140 N.M. 751, 149 P.3d 67. Among other things, we

held that (1) the City’s adoption of the 1995 USP was

a legislative act, (2) ACP was not entitled to quasi-

judicial process, and (3) the City did not downzone

ACP’ s property. Id. {1 36-39, 71. ACP appealed, and

on certiorari our Supreme Court held that ACP’s

property was downzoned by the adoption of the 1995

USP and that as a result, the City had been required

to provide ACP with quasi-judicial process. Albu-

querque Commons P’ship v. City Council of the City of

Albuquerque (ACP IIT), 2008-NMSC-025, 7] 33, 43,

144 N.M. 99, 184 P.3d 411. The Supreme Court went

on to hold that because the City did not provide these

enhanced procedures, ACP’s right to due process had

been violated and that the 1995 USP was not prop-

erly enacted. Id. Jf 51-52. Finally, the Supreme

Court concluded that the City had wrongfully denied

ACP approval of the ACP/Opus site plan under the

1981 USP. Id. {] 58-59. The Supreme Court there-

fore reversed ACP II and remanded the case to this

Court to make the following determinations: (1)

whether ACP had a constitutionally protected prop-

erty interest that would satisfy the threshold

requirement for a Section 1983 claim, (2) whether the

1995 USP was an unconstitutional taking of ACP’s

property by the City, and (3) whether damages were

properly awarded. Id. {] 53-60. We will also consider

the City’s challenges to the trial court’s award of

4a

attorney fees and costs.” We address each issue in

turn and hold as follows: (1) we affirm the jury award

of damages in the amount of $8,349,095 to ACP on its

Section 1983 claim; (2) we need not address the

issues related to the takings verdict because we

affirm the Section 1983 award; (3) we reverse the

award of post-judgment interest; and (4) we affirm

the trial court’s award of attorney fees and costs.

{5} The facts surrounding the adoption of the 1995

USP, the resulting law suits, and the several appeals

are set forth in ACP IJ, 2006-NMCA-143, {J 4-29,

140 N.M. 751 149 P.3d 67, and in ACP III, 2008-

NMSC-025, 77 4-20 144 N.M. 99, 184 P.3d 411. We

need not repeat the long and complicated history of

the case. Instead, we rely on the short background

summary that we have already recited and will

include additional facts as necessary. We now turn to

the remaining issues on appeal.

DISCUSSION

A. Section 1983 Claim

{6) In order to prove its claim under Section 1983,

ACP was required to show that the City, “acting

under color of state law, cause[d ACP] to be deprived

of a federally protected constitutional right.” Miles v.

Bd. of County Comm’rs, 1998-NMCA-118, ¥ 6, 125

* The City’s appeal as to attorney fees and costs was a

separate appeal before this Court. Before the Supreme Court

filed ACP III, we reversed the trial court’s allocation of costs and

fees in a memorandum opinion. Albuquerque Commons P’ship v.

City Council of the City of Albuquerque, No. 24,425, slip op. at 3

(N.M.Ct.App. Dec.9, 2005). As a result of the holding in ACP III,

we now consolidate the fees and costs appeal with the other

three consolidated cases considered by the Supreme Court in

ACP III.

5a

N.M. 608, 964 P.2d 169. ACP argued at trial that the

protected constitutional right violated by the City

was the right to procedural due process. The jury

entered a verdict for ACP. In its appeal to this Court,

the City challenges the due process verdict on the

following grounds: (1) the trial court improperly

found that ACP had a constitutionally protected

property right; (2) procedural due process protections

do not apply in the present case because the adoption

of the 1995 USP was a legislative act, and ACP

received all of the process that was due; (3) the

Section 1983 claim was not ripe; and (4) the trial

court improperly awarded damages. In addressing

each argument, we look to the holdings of our

Supreme Court in ACP JJI]—that ACP’s property was

downzoned, that the City accomplished the down-

zoning in a manner that violated ACP’s due process

rights, and that the adoption of the 1995 USP

required a quasi-judicial hearing. ACP III, 2008-

NMSC-025, 1943, 51, 144 N.M. 99, 184 P.3d 411. We

begin with the nature of ACP’s property right.

1. Property Right

{7} To establish a violation of procedural due

process, ACP was required to show that the City

deprived ACP of “life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1.

Here, we focus on the property interest portion of the

equation. In order to decide whether a party has a

constitutionally protected property right, we first

must determine whether there is a state-created

substantive property right and then consider whether

that right triggers federal due process protections.

Memphis Light, Gas & Water Div. v. Craft (Memphis

Light), 436 U.S. 1, 10, 98 S.Ct. 1554, 56 L.Ed.2d 30

(1978) (“Although the underlying substantive interest

6a

is created by an independent source such as state

law, federal constitutional law determines whether

that interest rises to the level of a legitimate claim of

entitlement protected by the Due Process Clause.”

(internal quotation marks and citation omitted)).

a. MState-Created Property Right

{8} Our Supreme Court has explained that constitu-

tionally protected “property interests are those to

which an individual has a claim of entitlement.”

Mills v. N.M. State Bd. of Psychologist Exam’rs,

1997-NMSC-028, 7 15, 123 N.M. 421, 941 P.2d 502.

Although it is well settled under New Mexico law

that a property owner has no vested right in a partic-

ular zoning classification, Aragon & McCoy v. Albu-

querque Nat'l Bank, 99 N.M. 420, 423, 659 P.2d 306,

309 (1983), ACP relies on requirements associated

with “downzoning” in order to establish a property

right. According to ACP, because its property was

downzoned, and not simply re-zoned, the City was

required to establish a mistake in the original zoning

or subsequent changed conditions in the neighbor-

hood before the zoning could be legally changed. Mil-

ler v. City of Albuquerque, 89 N.M. 503, 506, 554 P.2d

665, €68 (1976). The requirement enunciated in Mil-

ler is referred to as the “change or mistake” rule. Our

Supreme Court agreed with ACP’s position and held

that “the City’s actions did constitute a downzoning

of [ACP’s] property without complying with impor-

tant standards set forth in Miller and Davis [v. City

of Albuquerque, 98 N.M. 319, 321, 648 P.2d 777, 779

(1982)].” ACP IIT, 2008-NMSC-025, 7 2, 144 N.M. 99,

184 P.3d 411.

{9} In addition, the City’s applicable zoning regula-

tion—Resolution 270-1980—tracks the “change or

mistake” requirement. ACP II], 2008-NMSC-025, 28,

7a

144 N.M. 99, 184 P.3d 411. In order to implement a

map amendment to a zoning classification, Resolution

270-1980 requires the City to “demonstrate that the

existing zoning is inappropriate because (1) there was

an error when the existing zone map pattern was

created, or (2) changed neighborhood or community

conditions justify the change, or (3) a different use

category is more advantageous to the community.”

ACP II, 2006-NMCA-143, 64, 140 N.M. 751, 149 P.3d

67 (internal quotation marks and citation omitted).

In the present case, the Supreme Court has held that

the 1995 USP was a map amendment, which trig-

gered the requirements of Resolution 270-1980. ACP

ITI, 2008-NMSC-025, 7 50, 144 N.M. 99, 184 P.3d 411.

{10} Based on these New Mexico cases and Resolu-

tion 270-1980, we agree with the trial court that ACP

had a right, under state law, to continued zoning in

the face of downzoning or a map amendment unless

the City was able to justify a zoning change under

the requirements enunciated by Resolution 270-1980

and Miller. Accordingly, we conclude that ACP had a

state-created property interest.

b. Federal Protection

{11} The next inquiry is whether the federal cofistitu-

tion extends its protection to this state-created prop-

erty right. A party claiming a federally protected

property interest must have a “legitimate claim of

entitlement to it.” Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d

548 (1972). “[A) legitimate claim of entitlement is

created only when the statutes or regulations in

question establish a framework of factual conditions

delimiting entitlements which are capable of being

explored at a due process hearing.” Eidson v. Pierce,

745 F.2d 453, 459-60 (7th Cir. 1984). In the context of

8a

municipal land use regulation, “(t]he entitlement

analysis centers on the degree of discretion given the

decisionmaker and not on the probability of the deci-

sion’s favorable outcome.” Hyde Park Co. v. Santa Fe

City Council, 226 F.3d 1207, 1210 (10th Cir.2000)

(internal quotation marks and citation omitted).

Accordingly, we must decide whether the applicable

law, Resolution 270-1980 or Miller, substantively

limited the City’s discretion to pass the 1995 USP.

See Jacobs, Visconsi & Jacobs, Co, v. City of Lawrence

(Jacobs), 927 F.2d 1111, 1116 (10th Cir. 1991). “Oth-

erwise, the city’s decisionmaking lacks sufficient

substantive limitations to invoke due process guaran-

tees.” Id.

{12} As we have explained, Resolution 270-1980

requires the City to justify zone map amendments by

establishing (1) errors at the time the existing zone

map pattern was created, or (2) changes in the

neighborhood or community conditions that justify

the amendment, or (3) that a different use category is

more advantageous tc the community. These are

substantive and direct limitations on the City’s

discretion: By its own rules, the City cannot make a

zone map amendment without demonstrating, in

some fashion, at least one of these criteria. See ACP

III, 2008-NMSC-025, 7 28, 144 N.M. 99, 184 P.3d 411

(stating that Resolution 270-1980 requires the propo-

nent of a piecemeal downzoning to establish one of

three criteria).

{13} In addition, Miller unequivocally limits the

City’s ability to downzone a particular piece of prop-

erty. 89 N.M. at 506, 554 P.2d at 668. “[Blefore a pie-

cemeal zoning change is sought, the above principles

and considerations must be taken into account, par-

ticularly when the zoning change of a piece of prop-

9a

erty is sought by the zoning authority instead of by

the owner of the property affected.” Jd. (emphasis

added) (internal quotation marks and citation omit-

ted). The ACP III Court concluded that passage of the

1995 USP created a zone map amendment, 2008-

NMSC-025, 9 50, 144 N.M. 99, 184 P.3d 411, and

that it had the effect of downzoning ACP’s property.

Id. | 43. The requirements of both Resolution 270-

1980 and the requirements under Miller were there-

fore triggered; however, ACP III again provides guid-

ance. Because rigid application of the Miller rule

would “unduly impede the zoning authority’s ability

to make zoning decisions that are ultimately benefi-

cial to the community at large,” our Supreme Court

concluded that the requirements of “Resolution 270-

1980 adequately accommodate[] the need for plan-

ning and zoning flexibility.” ACP III, 2008-NMSC-

025, J 30, 144 N.M. 99, 184 P.3d 411. As a result, it

was necessary for the City to establish one of the

three criteria set forth in Resolution 270-1980,

including that “the change is more advantageous to

the community, as articulated in the Comprehensive

Plan or other City master plan.” Jd. (internal quota-

tion marks and citation omitted).

{14) Our Supreme Court explained in ACP II] that

the zoning changes effected by the City in the present

case “must be justified pursuant to the Miller rule

and Resolution 270-1980” and that such changes

“require specific factual findings relating to the

affected properties.” ACP III, 2008-NMSC-025, 7 32,

144 N.M. 99, 184 P.3d 411. The parties are entitled

to individual notice, to “an opportunity to be heard, to

an opportunity to present and rebut evidence, to a

tribunal which is impartial in the matter—i.e., hav-

ing had no pre-hearing or ex parte contacts concern-

ing the question at issue—and to a record made and

10a

adequate findings executed.” Jd. §, 34 (internal quota-

tion marks and citation omitted). All of these proce-

dural requirements are necessary in order for the

City to properly establish the substantive criteria:

change, mistake, or a more advantageous use cate-

gory. See id. J 30 (establishing the minimum “proof

required to demonstrate a more advantageous use

category). When attempting to accomplish the type of

downzoning at issue in this case, the City has no

discretion to proceed without providing evidence to

justify the change in accordance with these criteria.

See id. J 51 (“The [95 USP] Intense Core restrictions

singled out a small section of the Uptown Sector and

downzoned that area, requiring the City, as the

proponent of the zone change, to justify that change

in accordance with the criteria set forth in Miller and

Resolution 270-1980.”).

{15} The focus in this inquiry is not the City’s fail-

ure or success in establishing change, mistake, or a

more advantageous use. Rather, the property right is

created in the language of the Resolution, Miller,

Davis, and most recently, ACP III, all of which elimi-

nate the City’s discretion to engage in spot down-

zoning without considering the factors. See ACP III,

2008-NMSC-025, 7 32, 144 N.M. 99, 184 P.8d 411

(“[BJecause such [spot downzoning] must be justified

pursuant to the Miller rule and Resolution 270-1980

(or a similar locai policy), they require specific factual

findings relating to the affected properties.”). To

reiterate, any failure by the City to actually establish

one of the criteria does not lead to a property depri-

vation or a due process violation redressable under

Section 1983. Such a deprivation or violation only

arises in the event that a party is denied notice or a

meaningful opportunity to be heard.

lla

{16} The City argues that it has enormous discre-

tion in its application of the Resolution 270-1980

factors—particularly in the application of the “more

advantageous use” criterion—and that because the

factors do not dictate the outcome of the City’s spot

downzoning decision, Resolution 270-1980 and Miller

do not create a protected property right. We first

observe that our Supreme Court has substantially

narrowed the City’s discretion in the application of

this factor. In ACP III, the Court explained that the

“proof of a more advantageous use category “would

have to show, at a minimum, that 1) there is a

public need for a change of the kind in question, and

(2) that need will be best served by changing the

classification of the particular piece of property in

question as compared with other availabie property.”

2008-NMSC-025, 7 30, 144 N.M. 99, 184 P.3d 411

(quoting Fasano v. Bd. of County Comm’rs of Wash.

County, 264 Or. 574, 507 P.2d 23, 28 (1973), super-

ceded by statute as stated in Menges v. Bd. of County

Commis of Jackson County, 44 Or.App. 603, 606 P.2d

681 (1980)).

{17} Second, we are not persuaded that the cases

cited by the City require us to conclude that in order

for ACP to have a federally protected property inter-

est to be free from spot downzoning absent

a Miller / Davis / Resolution 270-1980 inquiry, the out-

come of the City’s spot-zoning determination must be

predetermined by the governing law. The City cites

Kentucky Department of Corrections v. Thompson

(Thompson), 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d

506 (1989), Hyde Park Co., Jacobs, and Sylvia Devel-

opment Corp. v. Calvert County, 48 F.3d 810 (4th Cir.

1995).

12a

{18} In Thompson, the Supreme Court of the

United States concluded that prison regulations did

not place sufficient substantive limitations on the

state’s discretion to allow a prisoner to receive

visitors. 490 U.S. at 464-65, 109 S.Ct. 1904. As a

result, the prisoner did not have a protected liberty

interest in the regulations that allowed for visitors.

Id. at 465, 109 S.Ct. 1904. The Court explained that

“the most common manner in which a [s]tate creates

a liberty interest is by establishing substantive

predicates to govern official decision-making, and,

further, by mandating the outcome to be reached

upon a finding that the relevant criteria have been

met.” Jd. at 462, 109 S.Ct. 1904 (internal quotation

marks and citation omitted). Ultimately, the Court

reasoned that “[t]he overall effect of the regulations is

not such that an inmate can reasonably form an

objective expectation that a visit would necessarily be

allowed absent the occurrence of one of the listed

conditions.” Id. at 464-65, 109 S.Ct. 1904. The Court

continued: “Or, to state it differently, the regulations

are not worded in such a way that an inmate could

reasonably expect to enforce them against the prison

officials.” Jd. at 465, 109 S.Ct. 1904.

{19} The City’s reliance on Thompson is misplaced.

First, the case concerns the constitutional rights of a

prisoner, which have been construed narrowly over

the past thirty years. See Ahmed A. White, The Con-

cept of “Less Eligibility” and the Social Function of

Prison Violence in Class Society, 56 Buff. L. Rev. 737,

777 (2008) (“[T]he courts made clear that, while they

are not entirely beyond the realm of constitutional

protection, prisoners only enjoy such constitutional

rights as are consistent with legitimate penological

interests; and that in determining what those inter-

ests are, courts must generally defer to the discretion

13a

of prison officials, granting them wide deference in

fashioning and implementing penological policies.”

(internal quotation marks and footnotes omitted)).

Second, the property right in the present case is the

right to continued zoning in the face of spot down-

zoning, absent a showing of evidence under Miller /

Davis/ Resolution 270-1980. Considering the manda-

tory language in Miller and Resolution 270-1980,

ACP could “reasonably form an objective expectation”

that its zoning category would remain in effect absent

evidence that could establish at least one of the

required criteria. See Thompson, 490 U.S. at 465,

109 S.Ct. 1904.

{20} In Hyde Park Co., the Tenth Circuit Court of

Appeals was faced with a different factual scenario.

In that case, a developer applied to the City of Santa

Fe for approval of a proposed subdivision plat. 226

F.3d at 1209. The proposal was denied and the devel-

oper appealed, arguing that it had a constitutionally

protected property right in approval of its plat. Jd.

The Hyde Park Co., Court disagreed because “the

applicable ordinances read as a whole fail to place

any discernible substantive limitations on the [city’s]

discretion in this matter.” Jd. at 1212. According to

the ordinance in Hyde Park Co., the city “had the

power to affirm, reverse, or modify the. . . decision as

ought to be made.” Jd. “Without clearly defined limi-

tations on the [city’s] exercise of discretion to assist

{in the] construction of local law,” the Tenth Circuit

hesitated “to infer such limits and involve [a] federal

court in a land use regulation dispute which is purely

a matter of local concern.” Jd. In order to have

demonstrated the requisite limitation on the city’s

discretion, the plaintiffs in Hyde Park Co. would have

had to show that “a set of conditions exist under state

and local law, the fulfillment of which would give rise

l4a

to a legitimate expectation” of plat approval—the

asserted federally protected right. Jd. at 1210 (inter-

na! quotation marks and citation omitted). -

{21} In the present case, ACP had to show a set of

conditions existing under local law which, if fulfilled,

would give rise to a legitimate expectation that the

City would provide evidence regarding the zoning

change according to Miller and Resolution 270-1980.

Unlike the ordinance in Hyde Park Co., Resolution

270-1980 provides “clearly defined limitations” on the

City’s discretion to engage in spot downzoning, and

there is no need to infer substantive limitations—

those limitations are delineated in the ordinance. See

226 F.3d at 1212.

{22} In Jacobs, the Tenth Circuit Court of Appeals

also considered whether a zoning body’s discretion

was sufficiently limited such that the parties had a

“legitimate expectation to the rezoning of their prop-

erty.” 927 F.2d at 1116. The landowners in that case

argued that certain factors set out in a state court

opinion were sufficient to limit the discretion of the

city commissioners. Jd. at 1114, 1116. The Jacobs

Court disagreed because the state supreme court had

acknowledged that the factors were not meant to be

limits but, instead, “meant only as suggestions.” Jd.

at 1116. Therefore, the state law did not “arm [the]

appellants with sufficient rules or mutually explicit

understandings that support [their] claim of entitle-

ment.” Id. at 1117 (second alteration in original)

(internal quotation marks and citation omitted). The

limitations set forth in Miller and in Resolution 270-

1980 are not merely suggestions. The Miller Court

expressed in no uncertain terms that prior to piece-

meal downzoning, the stated “principles and consid-

erations must be taken into account.” 89 N.M. at 506,

15a

554 P.2d at 668. Resolution 270-1980 states that

the applicants “must demonstrate” at least one of the

three requirements enumerated in the resolution.

The language of Miller and Resolution 270-1980

is sufficiently mandatory to support a claim of

entitlement.

{23} Sylvia Development Corp. is similar to Hyde

Park Co. and Jacobs: a developer applied to the

county board of commissioners for a special zoning

designation, which was denied after vociferous public

outcry. Sylvia Dev. Corp., 48 F.3d at 815, 816. The

developer appealed and argued, in relevant part, that

it was entitled to approval of its application if all

of the criteria set forth in the applicable zoning

ordinance were met. Jd. at 825-26. The Fourth Circuit

Court disagreed for two reasons: (1) till county had

complete discretion to create the requested special

zoning designation because of permissive language in

the ordinance and (2) the criteria in the zoning

ordinance were merely preconditions to be met by an

applicant before the county would consider creating a

special zoning designation. Jd. at 826. As we have

explained, Resolution 270-1980 is neither permissive

in its language nor does it outline preconditions that

a property owner is required to meet. Instead, in the

event of a spot downzoning, Resolution 270-1980

and Miller require the City to provide proof of the

listed criteria. See ACP III, 2008-NMSC-025, 7 34,

144 N.M. 99, 184 P.3d 411 (“The burden is on the

proponent of the zone change to establish that the

change is justified.”).

{24} We note a further distinction between the

present case and Hyde Park Co., Jacobs, and Sylvia

Development Corp. In these three federal cases, the

nlaintiffs sought to obtain an as yet non-existent

16a

benefit: approval of a plat, Hyde Park Co., 226 F.3d

at 1209, a zoning change, Jacobs, 927 F.2d at 1113,

or a special zoning designation. Sylvia Dev. Corp.,

48 F.3d at 815. In the present case, ACP seeks to

maintain an already existing benefit—a zoning

classification—in the face of the Citys attempt to

downzone the property. See ACP III, 2008-NMSC-025,

Y 43, 144 N.M. 99, 184 P.3d 411. “[P]rocedural pro-

tection of property has been recognized as a valid

safeguard of ‘interests that a person has already

acquired in specific benefits’ and as a means ‘to

protect those claims upon which people rely in their

daily lives.” Jacobs, 927 F.2d at 1118 (quoting Roth,

408 U.S. at 577, 92 S.Ct. 2701). The City is required

to justify piecemeal zone map amendments according

to Resolution 270-1980 and piecemeal downzoning

under Miller. That justification is a benefit that ACP

acquired prior tc the proposal and adoption of the

1995 USP. See River Park, Inc. v. City of Highland

Park, 23 F.3d 164, 166 (7th Cir. 1994) (“Those things

people can hold or do without the government’s aid

count as property or liberty no matter what criteria

the law provides.”).

{25} We consider the present case to bear a certain

resemblance to Memphis Light. In that case, the

United States Supreme Court considered whether

homeowners had a constitutionally protected prop-

erty interest in continued utility service. 436 U.S. at

3, 98 S.Ct 1554. The Memphis Light Court concluded

that “t]he outcome of that inquiry is clear in this

case,” id. at 9, 98 S.Ct 1554, because the law of the

state did “not permit a public utility to terminate

service ‘at will.’ Jd. at 11, 98 S.Ct 1554. Instead, in

that state, a public utility could “terminate service

only for cause.” Jd. As a result, the homeowner had a

continued right to utility service until the public

17a

utility could establish cause to terminate service. See

id. In the present case, the City could only adopt the

1995 USP if it could establish at least one of the

requirements of Resolution 270-1980—just as the

utility could only terminate service for cause. Neither

ACP nor the homeowner had “rights of undisputed

ownership.” Memphis Light, 436 U.S. at 11, 98 S.Ct

1554 (internal quotation marks and citation omitted).

Nevertheless, both parties asserted a “legitimate

claim of entitlement within the protection of the Due

Process Clause.” Jd. at 12, 98 S.Ct 1554 (internal

quotation marks and citation omitted).

{26} Although ACP’s pre-existing benefit, or

entitlement, is limited and is triggered only under

the conditions explained in Miller or outlined in Res-

olution 270-1980, we conclude that ACP has a feder-

ally protected property interest to continued zoning

under the narrow circumstances presented by this

case. Accordingly, we turn next to consider whether

ACP received all of the process that it was due in

order to protect its property right.

2. Process Due

{27} We next consider whether the process provided

by the City was sufficient to safeguard ACP’s consti-

tutionally protected property right. The City argues

that ACP received all of the process that was due

because the City provided and ACP participated in

seven hearings about the adoption of the 1995 USP.

Further, the City argues that because the adoption of

the 1995 USP was a legislative act, constitutional

due process was not required. We first note that our

Supreme Court held in ACP III that the adoption of

the 1995 USP was a quasi-judicial, and not a legisla-

tive, act. ACP III, 2008-NMSC-025, 9] 37-39, 43, 144

N.M. 99, 184 P.3d 411.

18a

{28} We also observe that our Supreme Court in

ACP III outlined the quasi-judicial hearing process to

which piecemeal or spot downzoned property owners

are entitled. 2008-NMSC-025, J 34, 144 N.M. 99, 184

P.3d 411. While this process is certainly necessary to

satisfy state law, Section 1983 actions are brought

under federal law. The United States Supreme Court

has explained that “[plrocess is not an end in itself.

Its constitutional purpose is to protect a substantive

interest to which the individual has a legitimate

claim of entitlement.” Olim v. Wakinekona, 461 U.S.

238, 250, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). The

Olim Court concluded that while a state may choose

to require certain procedures, “making that choice . . .

does not create an independent substantive right.” Id.

at 250-51, 103 S.Ct. 1741. In particular, the characte-

rization of a zoning process as quasi-judicial does not

engender the “expectation of a property interest or

otherwise place substantive limitations on official

discretion.” Jacobs, 927 F.2d at 1117. From these

authorities, we conclude that the failure to hold a

particular type of hearing was not by itself a failure

of due process actionable under Section 1983.

{29} “The fundamental requirement of due process

is the opportunity to be heard at a meaningful time

and in a meaningful manner.” Mathews v. Eldridge,

424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)

(internal quotation marks and citation omitted),

abrogated on other grounds as recognized by State v.

Gonzales, 2001-NMCA-025, 7 58 & n.1, 130 N.M. 341,

24 P.3d 776. “[Rjesolution of the issue whether the

administrative procedures provided here are consti-

tutionally sufficient requires analysis of the govern-

mental and private interests that are affected.”

Mathews, 424 U.S. at 334, 96 S.Ct. 893; see also

Erica, Inc. v. N.M. Regulation & Licensing Dep't,

19a

Alcohol & Gaming Div., 2008-NMCA-065, 27, 144

N.M. 132, 184 P.3d 444. That analysis includes three

factors:

First, the private interest that will be affected by

the official action; second, the risk of an errone-

ous deprivation of such interest through the pro-

cedures used, and the probable value, if any, of

additional or substitute procedural safeguards;

and finally, the [glovernment’s interest, includ-

ing the function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893. We have

already identified ACP’s private interest: the right

to continued zoning unless the City can justify down-

zoning according to the requirements of Resolution

270-1980.

{30} The second factor considers (1) the risk of erro-

neous deprivation absent the requested procedure

and (2) the probative value of the additional safe-

guard. To analyze the second factor, we must first

consider what procedure ACP requested. The City

points out that ACP had an opportunity to partici-

pate in seven hearings and that seven hearings satis-

fied any procedural due process right. ACP disagrees.

{31} In order to resolve this issue, we reed only

turn to one aspect of the hearing—the type of

tribunal. During its review of the downzoning issue,

our Supreme Court concluded that the City made “no

effort to provide ACP with an impartial tribunal by

limiting ex parte contacts on the part of the council

members.” 2008-NMSC-025, 7 36, 144 N.M. 99, 184

P.3d 411. The question remains, however, whether

an impartial tribunal would substantially reduce the

20a

risk of erroneous deprivation of ACP’s protected right

and what the probable value of an impartial tribunal

would be.

{32} It is well established that “a fair trial in a fair

tribunal is a basic requirement of due process.” With-

row v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456 43

L.Ed.2d 712 (1975) (internal quotation marks and ci-

tation omitted). Our Supreme Court has determined

that the City Council was a biased tribunal. ACP III,

2008-NMSC-025, 7 36, 144 N.M. 99, 184 P.3d 411.

Hearings before a biased tribunal create a substan-

tial risk of erroneous deprivation. See NM Bd. of

Veterinary Med. v. Riegger, 2007-NMSC-044, J 27,

142 N.M. 248, 164 P.3d 947 (“Pro-cedural due process

requires a fair and impartial hearing before a trier of

fact who is disinterested and free from any form of

bias or predisposition regarding the outcome of the

case.” (internal quotation marks and citation omit-

ted)). The present case exemplifies the risk. The City

perceived itself to be conducting a legislative hearing.

While a quasi-judicial hearing is not required to

satisfy due process, a legislative hearing before a

legislative tribunal led to actual ex parte contact in

this case. See Withrow, 421 U.S. at 47, 95 S.Ct. 1456

(explaining that a contention of bias “must overcome

a presumption of honesty and integrity of those

serving as adjudicators”). Prior to the adoption of the

1995 USP, a non-counselor contacted a counselor—

outside of the hearings—and “encouraged” her not to

propose amendments to the 1995 USP that would

have allowed ACP to proceed with its project. ACP

ITI, 2008-NMSC-025, 7 36 n. 3, 144 N.M. 99, 184 P.3d

411. The counselor acted on the contact, withdraw-

ing her proposed amendments. Jd. Thus, this ex parte

contact had a direct, negative effect on ACP’s

protected property right, and an impartial tribunal

2la

would have had a great deal of value as an additional

safeguard.

{33} Analysis of the third factor shows that there is

no added burden on the City to provide a meaningful

opportunity to be heard before an impartial tribunal.

Taking all of the factors together, we conclude that

the balance weighs in favor of providing a property

owner with an impartial tribunal—one free from ex

parte contacts—prior to implementing a piecemeal

downzone.

3. Adequacy of State Remedies

{34} Despite our holding that the City’s procedure

failed to provide ACP with adequate process to

protect its property rights, we continue our analysis

to determine whether ACP properly established a

Section 1983 cause of action in light of available

state-law remedies. See Starko, Inc. v. Gallegos,

2006-NMCA-085, 719, 140 N.M. 136, 140 P.3d 1085

(explaining that “not all deprivations of property

interests, even if they are in violation of state law,

are actionable under [Section] 1983” because plain-

tiffs must show that “state remedies provided inade-

quate procedural safeguards”). The City makes two

arguments in this regard: (1) a due process depriva-

tion is not complete until the process has failed and

whether the process has failed cannot be determined

until the deprived party has navigated the entire

system of available state appeals and (2) any proce-

dural error that may have occurred in the present

case was simply a mistake and “is not tantamount to

a violation of a federal right.” We address each argu-

ment in turn.

{35} The City’s first argument is based on the

multiple levels of state court review that were avail-

22a

able to ACP after the 95 USP passed. The City

contends that at the first level of review in the

district court, ACP argued against remand for the

City to conduct a quasi-judicial review of the

ACP/Opus site plan. Thus, the City argues, any due

process violation was never complete because review

of the passage of the 95 USP was available in the

district court, this Court, and our Supreme Court,

and ACP refused to participate in that procedure.

ACP maintains that no state remedy was available to

adequately address its loss. With this argument, ACP

appears to focus on its financial loss rather than on

any due process violation. It is well established that

“{ajlthough the state remedies may not provide the

respondent with all the relief which may have been

available if he could have proceeded under [Section]

1983, that does not mean that the state remedies

were not adequate to satisfy the requirements of due

process.” Parratt v. Taylor, 451 U.S. 527, 544, 101

S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327, 106

S.Ct. 662, 88 L.Ed.2d 662 (1986). Having disposed of

ACP’s challenge to the adequacy of the available

state remedies to address the financial loss, we turn

to consider whether the state appellate process was

adequate to address the due process violation in the

present case.

{36} The Supreme Court of the United States has

explained that in some cases, “due process requires a

predeprivation hearing before the [s]tate interferes

with any liberty or property interest enjoyed by its

citizens,” id. at 537, 101 S.Ct. 1908, and, as a result,

state appellate procedures are not sufficient to cure a

due process violation. In such cases, “deprivations of

property [are] authorized by an established state

procedure and due process [requires] predeprivation

23a

notice and [a] hearing in order to serve as a check on

the possibility that a wrongful deprivation [clould

occur.” Id. at 538, 101 S.Ct. 1908. In other cases, for

example in Parratt itself, “random and unauthorized”

state acts that lead to deprivations of property are

cured by a postdeprivation hearing—or an appeal—

because a predeprivation hearing is impractical. Id.

at 541, 543, 101 S.Ct. 1908. We thus consider whether

the City’s actions were random and unauthorized in

order to determine whether the available appellate

process was a constitutionally sufficient remedy for

ACP’s due process deprivation.

{37} The City cites McKinney v. Pate, 20 F.3d 1550

(11th Cir. 1994), which held that a biased decision-

maker is an inherently random and unauthorized act

because bias is not sanctioned by the state. Jd. at

1563. As a result, the McKinney court concluded that

the plaintiff was not deprived of due process unless

the state refused to address the alleged bias on

appeal from the administrative proceeding. See id.

at 1562. We are unpersuaded by McKinney for two

reasons.

{38} First, McKinney was decided in the context of

employment termination proceedings and the long

line of cases that establish a fired employee’s due

process rights. Jd. (“[I]n the case of an employment

termination case, due process [does not] require the

state to provide an impartial decisionmaker at the

pre-termination hearing. The state is obligated only

to make available the means by which [the employee]

can receive redress for the deprivations.” (internal

quotation marks and citation omitted)). Second,

although the logic of McKinney is superficially attrac-

tive—that a biased tribunal is inherently not autho-

rized by the state—the facts of the present case do

24a

not bear out this presumption. The City’s improper

process was neither unpredictable nor the result of

the rogue actions of one city councilor. The City chose

to proceed by legislative hearings—a procedure that

did not provide an impartial tribunal and allowed for

ex parte contact. In addition, we are faced with the

rare circumstance of having allegations of bias borne

out by the record: a city councilor had indicated one

course of action, was contacted by a constituent with

an opposing view, and after that contact, the counci-

lor changed her position and her vote. See ACP III,

2008-NMSC-025, 7 36 n.3, 144 N.M. 99, 184 P.3d

411. The decision to proceed legislatively is not suffi-

cient alone to create a due process violation; it is

possible that a legislative hearing could provide a

meaningful opportunity to be heard or could be

conducted without evidence of ex parte contact

resulting in improper influence. Under the facts of

the present case, however, as recognized by our

Supreme Court in ACP III, there is substantial

evidence to support the jury’s decision that ACP did

not receive an impartial tribunal and that the flawed

process was selected and endorsed as an official act of

the whole governmental power of the City. See id. As

a result, we are unpersuaded by the presumption

applied in McKinney.

{39} The present circumstances are more closely

aligned with Zinermon v. Burch, 494 U.S. 113, 110

S.Ct. 975, 108 L.Ed.2d 100 (1990). The plaintiff in

Zinermon was admitted as a voluntary mental

patient even though he was incompetent to provide

informed consent for his admission. Jd. at 114-15, 110

S.Ct. 975. The defendants argued that a postdepri-

vation remedy was sufficient, in lieu of a Section

1983 action, because the constitutional deprivation

was the result of a random and unauthorized action

25a

by a state employee. Jd. at 115, 110 S.Ct. 975. The

Supreme Court of the United States explained that

generally, “the Constitution requires some kind of a

hearing before the State deprives a person of liberty

or property.” Id. at 127, 110 S.Ct. 975. The random

and unauthorized rule articulated in FParratt

represents “a special case . . . in which postdepriva-

tion tort remedies are all the process that is due,

simply because they are the only remedies the [s]tate

could be expected to provide.” Zinermon, 494 U.S. at

128, 110 S.Ct. 975. In Zinermon, the state statute

delegated broad authority to hospitals to admit

patients, effectively without informed consent. Id. at

135, 110 S.Ct. 975. As a result, the hospital staff had

“state authority to deprive pensons of liberty [and]

the Ccnstitution imposed on them the [s]tate’s

concomitant duty to see that no deprivation occur

without adequate procedural protections.” Id. The

Zinermon Court concluded that the postdeprivation

procedures were inadequate because the deprivation

was not unpredictable, predeprivation procedures

were not impossible, and the deprivation was not

unauthorized. Jd. at 136-38, 110 S.Ct. 975.

{40} In the present case, the City—as it strenuously

argues—has broad authority to make zoning deci-

sions that can lead to deprivations of constitutionally

protected property rights. Part and parcel with that

authority is the duty to provide adequate predepriva-

tion procedural protections. Similar to the depriva-

tion in Zinernon, an impermissibly biased tribunal

was not unpredictable: the City’s decision to proceed

legislatively carried with it the risk of ex parte con-

tact and bias and, based on the record, the risk was

elevated to reality. In addition, it was not impossible

for the City to provide an unbiased tribunal. In Par-

ratt, the deprivation involved the loss of personal

26a

property by prison officials—an action which was

impossible for the state to predict and prevent by

predeprivation hearing. 451 U.S. at 541, 101 S.Ct.

1908. In the present case, the City was contemplat-

ing spot downzoning of ACP’s property, had a work-

ing knowledge of the common procedures involved in

legislative hearings, and could have anticipated that

councilors would be contacted outside of the official

proceedings. It cannot be said that the instance of ac-

tual bias that resulted from the procedures employed

was unpredictable. Finally, we have already

addressed the argument that the biased tribunal was

unauthorized and need not repeat our analysis here.

{41} We now reach the City’s second argument,

which concerns the decision to proceed legislatively.

The City maintains that its decision to proceed

legislatively was merely a procedural error that does

not rise to the level of a constitutional violation and

that if ACP is permitted to recover under Section

1983 based on a procedural flaw in the proceedings,

property owners will have “the unilateral option to

cash in on any procedural flaw in an administrative

proceeding by declining remand and pursuing a

[Section] 1983 action.” We disagree.

{42} The bias in the present case was more than a

procedural flaw because ACP had a protected

property interest, it was entitled to due process, and

there is evidence of actual bias in the process

afforded by the City. An unbiased tribunal was a

constitutional requirement in the present case. See 1

E.C. Yokley, Zoning Law and Practice § 3A-1{d], at

3A-23 (4th ed. 2008) (“Procedural due process,

however, will apply where a decision is administra-

tive or quasi-judicial and the property owner has an

entitlement rather than an expectancy to whatever

27a

he or she sought.” (footnotes omitted)). In addition,

the decision to proceed under Section 1983, rather

than to pursue administrative remedies, is a tactical

and risk-laden choice. See 2 Steven H. Steinglass,

Section 1983 Litigation in State Courts § 17:3, at 17-7

to 17-8 (2008) (discussing the tactical reasons for

resorting to a Section 1983 action or for voluntarily

submitting claims to administrative proceedings).

The litigant takes the risk of receiving no remedy at

all should he neglect to pursue administrative reme-

dies, and the Section 1983 action may be blocked by

the myriad of requirements that stand between a

plaintiff and relief.

{43} We recognize that other courts have concluded

that minimal process is due under the Constitution in

zoning cases and that a municipality’s failure to

provide the process required under local law is a

matter for state courts, not Section 1983. See River

Park, Inc., 23 F.3d at 166-67. The River Park, Inc.

court succinctly explained that “the due process

clause permits municipalities to use political methods

to decide, so that the only procedural rules at stake

are those local law provides, and these rules must be

vindicated in local courts.” Jd. at 167. Nevertheless,

our analysis of the present case leads to the conclu-

sion that ACP had a property right that was to be

afforded federal due process protections. Due process

requires notice of the pending deprivation and a

meaningful opportunity to be heard. In the present

case, the meaningful opportunity to be heard was

foreclosed by evidence of actual and impermissible

bias on the tribunal—bias that was the foreseeable

result of the political process chosen by the City as its

official act to effectuate the deprivation of ACP’s

property. Under the unusual circumstances of this

case, we therefore hold that ACP’s Section 1983

28a

action was not foreclosed by available state remedies

and that the City’s failure to provide ACP with an

impartial tribunal violated ACP’s right to procedural

due process. See ACP III, 2008-NMSC-025, 7 52, 144

N.M. 99, 184 P.3d 411 (“[T]he City’s decision lacked

procedural fairness and did not comport with due

process of law.”).

4. Ripeness of the Section 1983 Claim

{44} The City contends that because ACP prevailed

on both the due process and the takings issues at

trial, ACP cannot recover damages for the Section

1983 claim until it has attempted to recover compen-

sation for the taking. As a result of ACP’s failure to

seek recovery for the taking, the City argues that the

due process claim is not ripe. For support, the City

cites Rocky Mountain Materials & Asphalt, Inc. v.

Board of County Commissioners (Rocky Mountain),

972 F.2d 309 (10th Cir. 1992). In that case, the Tenth

Circuit provided the following explanation:

When a plaintiff alleges that he was denied a

property interest without due process, and the

loss of that property interest is the same loss

upon which the plaintiffs takings claim is based,

we have required the plaintiff to utilize the

remedies applicable to the takings claim. It is

appropriate in this case to subsume the more

generalized Fourteenth Amendment due process

protections within the more particularized

protections of the Just Compensation Clause.

Accordingly, until a plaintiff has resorted to the

condemnation procedures to recover compensa-

tion for the alleged taking, the procedural due

process claim is likewise not ripe because it is in

essence based on the same deprivation.

29a

Id. at 311 (internal quotation marks and citation

omitted). ACP argues that (1) federal ripeness juri-

sprudence does not apply, (2) the takings claim was

not coextensive with the due process claim, and (3) no

state remedy existed for the takings claim, and ACP

was therefore not required to pursue a non-existent

remedy. For the reasons listed below, we agree with

ACP that the takings claim and the due process claim

were not coextensive, and we therefore do not

address ACP’s other points.

{45) Rocky Mountain identified two sets of circums-

tances. In one scenario, the loss of the property inter-

est is the same loss upon which the takings claims is

premised. Jd. This is the scenario which the City

argues is similar to the present case. However Rocky

Mountain goes on to explain that “[t]here are many

intangible [property] rights that merit the protection

of procedural due process although their infringe-

ment fall short of an exercise of the power of eminent

domain for which just compensation required under

the Fifth and Fourteenth Amendments.” Jd. (altera-

tions in original), (internal quotation marks and cita-

tion omitted).

{46} In the present case, the property right that

forms the basis for the due process claim is an

intangible right—the right to continuation of a

certain zoning classification until the City can estab-

lish specific circumstances, as we have identified in

preceding paragraphs. ACP’s loss resulting from the

due process violation was loss of opportunity to

meaningfully participate in a hearing related to the

adoption of the 1995 USP. Our Supreme Court has

determined that ACP’s deprivation of this meaningful

hearing resulted in its inability to develop its prop-

erty. See ACP III, 2008-NMSC-025, 7 59, 144 N.M.

30a

99, 184 P.3d 411. The jury was instructed accor-

dingly on damages for that claim: place ACP in the

position it would have been in had it been permitted

to develop its property as proposed. The basis for the

takings claim was that the passage of the 1995 USP

did not advance a legitimate public interest and

deprived ACP of all economically viable use of the

property without compensation. The takings dam-

ages instruction directed the jury to award the value

of the use of the property taken. The differences

between the claims were reflected in the jury’s

verdict on damages—six million dollars for takings

and more than eight million dollars for due process.

It is further apparent that the right to receive mea-

ningful process could not be redressed by the remedy

for the takings claim—adequate compensation for

deprivation of the use of property. We therefore

conclude that the two claims were not coextensive

and that ACP was under no obligation to seek

condemnation and compensation before recovering

damages for the due process violation.

5. Damages Under the Section 1983 Claim

{47} In Section 1983 cases, the plaintiff must prove

a causal connection between the wrongful conduct

and the injury in order to justify an award of

compensatory damages. Jacobs v. Meister, 108 N.M.

488, 495-96, 775 P.2d 254, 261-62 (Ct. App. 1989),

disapproved of on other grounds by Carrillo v. Rostra,

114 N.M. 607, 623 n. 16, 845 P.2d 130, 146 n. 16

(1992). The City contends that ACP’s evidence relat-

ing to damages measured only the loss of profit that

resulted from the inability to develop the property as

planned. Specifically, the City argues that ACP was

required to prove that if the City had provided due

process, the 1995 USP would not have been approved

3la

and that the ACP/Opus site plan would have been

approved under the 1981 USP. We disagree.

{48} “It is recognized that a Section 1983 action is a

species of tort liability, and that the common law of

tort damages will be a starting point for Section 1983

damages[.]” Wells v. County of Valencia, 98 N.M. 3, 5,

644 P.2d 517, 519 (1982). Our Supreme Court has

explained that according to long-established principles

of tort law, “the purpose of compensatory damages is

to make an injured person whole.” Lovelace Medical

Center v. Mendez, 111 N.M. 336, 349, 805 P.2d 603,

616 (1991). The Mendez Court continued and stated

that “one of the functions of compensatory damages is

to indemnify the injured party against financial

losses proximately caused by the negligence of

another.” Jd. Thus, in the context of the present case,

ACP was required to prove that its financial losses

were caused by the City’s actions.

{49} As we have explained, the City failed to

provide adequate process to protect ACP’s constitu-

tionally protected property right and, therefore, the

passage of the 1995 USP violated ACP’s due process

rights. Absent the improperly passed 1995 USP, the

1981 USP governed the ACP/Opus site plan. Conse-

quently, we turn to whether the ACP/Opus site plan

would have been approved under the 1981 USP.

{50} In ACP III, the Supreme Court determined

that

[t]he record shows that the [ACP/]Opus site plan,

though it needed some adjustments (adjustments

that were in the process of being made at the

time the City imposed the moratorium to

consider the 1995 [USP] amendments), complied

with the requirements of the 1981 [USP] and

32a

was no different from a number of projects that

the City had previously allowed under that

sector plan.

2008-NMSC-025, 7 59, 144 N.M. 99, 184 P.3d 411.

This statement by our Supreme Court is the law of

the case. “Under the law of the case doctrine, if an

appellate court has considered and passed upon a

question of law and remanded the case for further

proceedings, the legal question so resolved will not be

determined in a different manner on a subsequent

appeal.” Scanlon v. Las Cruces Pub. Sch., 2007-

NMCA-150, 9 7, 143 N.M. 48, 172 P.3d 185 (altera-

tions omitted) (internal quotation marks and citation

omitted). We therefore conclude that the ACP/Opus

site plan would have been approved according to the

1981 USP, see ACP III, 2008-NMSC-025, 4 58, 144

N.M. 99, 184 P.3d 411, and that ACP proved that its

financial losses were caused by the City’s failure to

provide adequate process.

{51) The City also briefly contends that ACP did

not prove a portion of the damages related to

reimbursement of a percentage of funds used to

construct a road. The Supreme Court did not address

this argument in ACP III, and we thus consider

whether ACP provided substantial evidence to

support the jury’s verdict that ACP’s damages were

caused by the City’s actions. The City argues that

there was no agreement that the City would

reimburse ACP for construction of Loop Road, a road

adjacent to the site, and that damages related to the

road were improperly awarded based on ACP’s

assumption that the City would reimburse for road

construction costs. The record supports ACP’s

assumption in that there was evidence at trial that

the City had paid a percentage of another access

33a

road, that the City had identified the cost of such a

road as a cost to the City, and that the 1981 USP

required public financing of the road. Accordingly, we

conclude that ACP put on evidence to support the

jury’s assessment of damages in this regard.

B. Post-eiudgment Interest

{52} We review the trial court’s construction of the

post-judgment interest statutes de novo. Bird v. State

Farm Mut. Auto. Ins. Co., 2007-NMCA-088, J 36, 142

N.M. 346, 165 P.3d 343. New Mexico is somewhat

unique in how it handles the payment of post-

judgment interest by the state and its political subdi-

visions. We look to NMSA 1978, § 56-8-4(D) (2004),

which exempts the state and political subdivisions

from paying post-judgment interest unless otherwise

provided by statute or case law. This statute has been

construed narrowly, and in order for a prevailing

party to recover post-judgment interest from the

state or a political subdivision, our courts have

required an explicit waiver of sovereign immunity.

Nava v. City of Santa Fe, 2004-NMSC-039, 7 23, 136

N.M. 647, 103 P.3d 571 (refusing to award post-

judgment interest when immunity from post-

judgment interest is not expressly waived); Trujillo v.

City of Albuquerque, 1998-NMSC-031, 9 47, 125 N.M.

721, 965 P.2d 305 (same). The City argues that

because Section 1983 and 42 U.S.C. § 1988 (2000) do

not provide for post-judgment interest, the trial court

improperly assessed post-judgment interest. ACP

counters that post-judgment interest is mandatory in

Section 1983 actions filed in federal] court and that it

should therefore be allowed in state proceedings. We

agree with the City.

{53} As the City recognizes, post-judgment interest

is routinely awarded in Section 1983 cases filed in

34a

federal court. The basis for those awards, however,

is 28 U.S.C. § 1961 (2000). See, e.g., Transpower

Constructors v. Grand River Dam Auth., 905 F.2d

1413, 1423 (10th Cir. 1990) (“[IJnterest shall be

allowed on any money judgment in a civil case recov-

ered in a [federal] district court.” (internal quotation

marks and citation omitted)); see also 28 U.S.C. § 451

(1982) (defining “district court” according to Title 5 of

Chapter 28 U.S.C. in which 28 U.S.C.§ 132 (1963)

describes a district court as “a court of record known

as the United States District Court for the district”).

Section 1961(c)(4) explicitly provides that it “shall not

be construed to affect the interest on any judgment of

any court not specified in this section.” State courts

are not specified in the section; therefore, there is no

basis on which to apply the terms of Section 1961 to a

Section 1983 claim filed in state court. It becomes

clear that the federal precedent which permits post-

judgment interest in Section 1983 claims does not

supply the necessary authority to satisfy the

mandate of New Mexico’s Section 56-8-4(D). Apart

from the requirements of Section 1961, ACP provides

no federal or state authority to establish that

prevailing parties in Section 1983 claims filed in

state court are entitled to payments of post-judgment

interest by a political subdivision of the state. We,

too, have researched federal law and can find no

additional authority for such a proposition.

{54} We have also conducted a survey of the law in

other states. The majority of jurisdictions do permit

the recovery of post-judgment interest against the

state or political subdivisions, either by statute, by

case law, or by both. See Alaska Stat. § 09.50.280

(1997); Ariz. Rev. Stat. § 12-823 (1984); 735 Tl. Comp.

Stat. 5/2-1303 (1987); Ind. Code § 34-54-8-5 (1998);

Kan. Stat. Ann. § 16-204 (1996); N.Y. State Finance

35a

Law § 16 (1982); Okla. Stat. tit. 12, § 727.1(B) (2004);

Tenn. Code Ann. § 9-8-307(d) (2005); State of Ala.

Highway Dep’t v. Milton Constr. Co., 586 So.2d 872,

876 (Ala. 1991); Ca. Fed. Sav. & Loan Ass’n v. City of

Los Angeles, 11 Cal.4th 342, 45 Cal.Rptr.2d 279, 902

P.2d 297, 300 (1995); Palm Beach County v. Town of

Palm Beach, 579 So.2d 719, 720 (Fla. 1991); Profit

Recovery Group, USA, Inc. v. Comm’r, Dep’t of Ad-

min. & Fin. Servs., 2005 ME 58, 99 32-33, 871 A.2d

1237; Md. State Highway Admin. v. Kim, 353 Md.

313, 726 A.2d 238, 241 (1999); Lienhard v. State, 431

N.W.2d 861, 865-66 (Minn. 1988); City of Jackson v.

Williamson, 95-CT-01072-SCT (9714-15) 740 So.2d

818, 821-22 (Miss. 1999); Nault v. N & L Dev. Co.,

146 N.H. 35, 767 A.2d 406, 407, 409 (2001); Judy v.

Ohio Bureau of Motor Vehicles, 100 Ohio St.3d 122,

2003-Ohio-5277, 797 N.E.2d 45, at | 32; Woods v.

Dep’t of Transp., 163 Pa.Cmwlth. 379, 641 A.2d 633,

635 (1994); Mulvaney v. Napolitano, 671 A.2d 312,

313 (R.I. 1995); Hart v. Salt Lake County Comm'n,

945 P.2d 125, 140 (Utah Ct.App. 1997).

{55) There are a handful of other states that, as a

general proposition, do not permit successful plain-

tiffs to recover post-judgment interest on verdicts

against the state. See Chun v. Bd. of Trs. of the Em-

ployees’ Ret. Sys., 106 Hawai’i 416, 106 P.3d 339, 356

(2005) (requiring express statutory relinquishment of

the state’s sovereign immunity from post-judgment

interest); Kenton County Fiscal Ct. v. Elfers, 981

S.W.2d 553, 559-60 (Ky.Ct.App. 1998); C & M Constr.

Co. v. Commonwealth, 396 Mass. 390, 486 N.E.2d 54,

56 (1985); Our Lady of Lourdes Hosp. v. Franklin

County, 120 Wash.2d 439, 842 P.2d 956, 966 (1993)

(en banc). Montana is unique in that it provides a

grace period of sorts. Its legislature has directed that

under most circumstances, “if a governmental entity

36a

pays a judgment within 2 years after the day on

which the judgment is entered, no penalty or interest

may be assessed.” Mont. Code Ann. § 2-9-317 (1997).

{56} None of the states with law comparable to New

Mexico have addressed the specific question of post-

judgment interest in a Section 1983 case filed in state

court. Our research thus reveals that there is no

support for ACP’s position that the City is required to

pay post-judgment interest in this case.

(57) ACP argues that the denial of post-judgment

interest for Section 1983 claims brought in state

court will have a twofold effect. First, ACP quotes

Wells to argue that “(t]he Legislature cannot enact a

law which would have the practical effect of depriving

a party of his rights secured by the United States

Constitution.” 98 N.M. at 7, 644 P.2d at 521. We note

that Section 56-8-4(D) circumscribes only a party’s

ability to collect post-judgment interest against the

state and political subdivisions; in no way does the

statute prevent a party from bringing a cause of

action against the state or its political subdivision in

order to vindicate constitutional rights. Second, ACP

contends that “[s]tate law that creates different

outcomes in federal and state court cannot be given

effect.” For support, ACP cites Felder v. Casey, 487

U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988).

Felder considered whether a party must comply with

a state’s pleading procedures in order to properly

bring a Section 1983 claim. Felder, 487 U.S. at 138,

108 S.Ct. 2302. The United States Supreme Court

held that

[blecause the notice-of-claim statute at issue here

conflicts in both its purpose and effects with

the remedial objectives of [Section] 1983, and

because its enforcement in such actions will

37a

frequently and predictably produce different out-

comes in [Section] 1983 litigation based solely on

whether the claim is asserted in state or federal

court, we conclude that the state law is pre-

empted when the [Section] 1983 action is brought

in a state court.

Id. We do not believe that the New Mexico prohibi-

tion against the recovery of post-judgment interest

against the state and political subdivisions “conflicts

in both its purpose and effects with the remedial

objectives of [Section] 1983.” Id. The remedial objec-

tives of Section 1983 are certainly achieved when a

plaintiff successfully brings suit for damages against

the state to vindicate constitutional rights. The

recovery of post-judgment interest operates only as

an enforcement mechanism to encourage the timely

payment of damages efter judgment has _ been

entered. See Bird, 2007-NMCA-088, J 42, 142 N.M.

346, 165 P.3d 343 (“An award of post-judgment inter-

est serves three purposes: compensating the plaintiff

for being deprived of compensation from the time of

the judgment until payment . . . by the defendant,

discouraging unsuccessful defendants from pursuing

frivolous appeals, and minimizing court supervision

of the execution of judgments.” (internal quotation

marks and citation omitted)). We therefore hold that

the trial court improperly granted ACP post-

judgment interest. Because post-judgment interest is

not permissible under Section 56-8-4(D) in these

circumstances, we need not consider whether the

interest was properly assessed according to the state,

and not the federal, interest rate.

38a

C. Attorney Fees and Costs

1. Recovery Under Section 1988 For State Law

Claims

{58} The City first contends that the trial court

improperly awarded attorney fees for the first

administrative appeal under Section 1988, which

only allows recovery for federal civil rights actions.

See N.C. Dep’t of Transp. v. Crest St. Cmiy. Council,

Inc., 479 U.S. 6, 12, 107 S.Ct. 336, 93 L.Ed.2d 188

(1986) (“On its face, [Section] 1988 does not authorize

a court to award attorney’s fees except in an action to

enforce the listed civil rights laws.”); Bogan uv.

Sandoval County Planning & Zoning Comm’n, 119

N.M. 334, 345, 890 P.2d 395, 406 (Ct. App. 1994)

(explaining that a “plaintiff must prevail on some

federal civil rights claim in order to be eligibie for a

fee award” under Section 1988). We review the trial

court’s award of attorney fees for abuse of discretion.

Nava, 2004-NMSC-039, 9 24, 136 N.M. 647, 103 P.3d

571. In the first administrative appeal, the trial

court determined that the City was required to

review ACP’s proposal under the 1981 USP and not

the 1995 USP. The City’s position is that no part of

the first administrative appeal was necessary in

order to vindicate ACP’s civil rights. Instead, the City

claims that the “sole issue under the petition . . . was

an appellate review of the action of the City Council

to determine the validity of a zoning decision—the

adoption of the 1995 [USP].”

{59} ACP contends that without the work per-

formed for the first administrative appeal, the civil

rights claim would not have been successful. The trial

court agreed and found that “virtually everything [in

the first administrative appeal] focused on whether

there was a downzone.” As we discussed above,

39a

ACP’s identifiable property right is to be free from

downzoning unless the City can establish certain

criteria. Therefore, there was no abuse of discretion

to permit attorney fees for the first administrative

appeal because that appeal decided an issue that was

crucial to the later and successful constitutional

claim. See N.C. Dep’t of Transp., 479 U.S. at 15, 107

S.Ct. 336 (“A court hearing one of the civil rights

claims covered by [Section] 1988 may still award

attorney's fees for time spent on administrative pro-

ceedings to enforce the civil rights claim prior to the

litigation.”).

2. Costs

{60} The City next argues that specific costs

awarded by the trial court were either (1) improperly

categorized in the cost bill or (2) not recoverable

under state or federal law. We review a trial court’s

determination of costs for abuse of discretion. Bird,

2007-NMCA-088, 49 27, 142 N.M. 346, 165 P.3d 343.

In a Section 1983 action brought in state court, the

prevailing party may recover some expenses of litiga-

tion under either federal or state law. Federal law

permits the prevailing party to recover attorney fees

under Section 1988, and fees may include “reasonable

out-of-pocket expenses not normally absorbed as part

of law firm overhead.” Brown v. Gray, 227 F.3d 1278,

1297 (10th Cir. 2000). These costs under Section 1988

are considered to be included in the award of attor-

ney fees; therefore, amounts paid to third parties who

are not attorneys are not recoverable under Section

1988. Brown, 227 F.3d at 1297. However, other costs

may be awarded under the general costs statute. See

id. Also, Rule 1-054(D\(2) NMRA permits the recov-

ery of certain costs under state law. It includes the

recovery of the following expenses under certain

40a

circumstances: filing fees; fees for service of

summonses, subpoenas, writs and other service of

process; jury fees; transcript fees including those for

daily transcripts and transcripts of hearings prior or

subsequent to trial; the cost of a deposition if any

part is used at trial or in successful support or

defense of a motion for summary judgment; witness

mileage or travel fare and per diem expenses; expert

witness fees for services; translator fees; reasonable

expenses involved in the production of exhibits

admitted into evidence; official certification fees for

documents admitted into evidence; and interpreter

fees for judicial proceedings and depositions.

{61} The City contends that ACP improperly cate-

gorized some expenses under Section 1988 that were

not recoverable under that section and other

expenses under Rule 1-054 that were not permitted

under that rule. The trial court concluded that any

improper categorization of the requests did not

“require that the request be disallowed [ilf it is oth-

erwise compensable under the law.” Although ACP

acknowledges that it claimed some items under both

statutes, it repeatedly asserted that double recovery

was not sought for expenses that were claimed under

both laws. We agree with the trial court that if

certain costs were permissible under any law—

federal or state—ACP was entitled to recover those

costs. See Rule 1-054(D)(1) ([Closts, other than

attorney fees, shall be allowed to the prevailing party

unless the court otherwise directs[.]”). We therefore

review each of the City’s arguments regarding

whether a particular expense is allowable under

either Section 1988 or Rule 1-054(D).

{62} ‘ihe City disputes the trial court’s award of

copy costs, subpoena fees, and transcript fees. These

4la

arguments are without merit because either Rule

1-054(D)(2) or Section 1988 permit the recovery of

these costs, and the City admits that copy costs are

billed through as attorney fees. See Case v. Unified

School Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir.

1998) (“Reasonable expenses incurred in representing

a client in a civil rights case should be included in the

attorney's fee award if such expenses are usually

billed in addition to the attorney’s hourly rate.”); see

also Rule 1-054(D\(2)(b) (permitting the recovery

of subpoena fees); Rule 1-054(D)(2)(d) (permitting

the recovery of transcript fees); H-B-S P’ship uv.

Aircoa Hospitality Servs., Inc., 2008-NMCA-018, J 27,

143 N.M. 404, 176 P.3d 1136 (holding that Rule 1-

054(D\(2)Xd) does not require advance approval of

transcript requests in order for the cost to be

recoverable).

{63} The City also challenges the trial court’s

award of mediation fees and deposition costs. Section

1988 and Rule 1-054(D) are silent with regard to

mediation costs. New Mexico trial courts are

cautioned that “[closts generally are recoverable only

as allowed by statute, Supreme Court rule[,] and case

law,” Rule 1-054(D)(2), and “{w]Je therefore expect...

courts to exercise their discretion sparingly with

regard to costs that are not specifically authorized.”

H-S-B P’Ship, 2008-NMCA-013, 7 24, 143 N.M. 404,

176 P.3d 1136. Nevertheless, we conclude that the

trial court was within its discretion to award ACP

mediation costs because the court “explain[ed] the

circumstances justifying the award.” Jd. (internal

quotation marks and citation omitted). The trial

court informed the parties that ACP was permitted to

recover mediation fees because the mediation was

court-ordered and because the City did not partici-

pate in the mediation with good faith. The trial court

42a

made a similar award for deposition costs and

expenses. Although Rule 1-054(DX(2)(e) normally re-

quires that depositions be used at trial or in a

successful motion for summary judgment in order for

the prevailing party to recover the costs, the trial

court in the present case permitted the recovery of all

deposition costs. The court explained that this was a

complicated case and that the attorneys involved had

to sift through a great deal of information in order to

determine what testimony was relevant and not

duplicative. The trial court noted that none of the

depositions taken were unreasonable and as a result

awarded all deposition costs under Rule 1-054. Under

these circumstances, we see no abuse of discretion in

the awards for mediation and deposition costs. See H-

S-B P’Ship, 2008-NMCA-013, J 28, 143 N.M. 404,

176 P.3d 1136 (“Because the district court affirma-

tively explained its reasons justifying any deviation

from Rule 1-054(D)(2), we affirm its allowance of

the... casts.”).

{64} In its final argument, the City contends that

the trial court improperly allowed ACP to recover

costs related to expert witnesses. The parties do not

dispute that Section 1988 does not permit recovery

for expert witnesses in Section 1983 actions. See

§ 1988 (permitting the recovery of expert witness fees

in proceedings to enforce the provisions of 42 U.S.C.

§§ 1981 or 1981la (2000)—but omitting reference to

Section 1983); see also James v. Sears, Roebuck &

Co., 21 F.3d 989, 995 (10th Cir. 1994) (“There must

be an explicit statutory authorization before expert

witness fees will be awarded.”). ACP characterized

witnesses Phil Garcia and William Kraemer as

paralegals and thereby recovered those costs under

Section 1988. The City argues that these witnesses

were experts, and costs are therefore not recoverable.

43a

The trial court did not permit ACP to recover for all

of the work performed by these witnesses because

some of the work was more akin to expert work than

paralegal work. It was not contrary to logic and

reason for the trial court to carefully examine the

work done by these witnesses, conclude that some

work was investigatory, and permit costs for that

work. See Case, 157 F.3d at 1249 (applying Section

1988 and concluding that “[a]s to services provided by

non-lawyers, if law clerk and paralegal services are. .

. not reflected in the [attorney’s fee], the court may

award them separately as part of the fee for legal

services” (some alterations in original) (internal quo-

tation marks and citation omitted)). Accordingly, we

hold that the trial court did not abuse its discretion

by permitting the recovery by ACP of the costs

related to Garcia and Kraemer.

{65} The City also objects to the recovery of costs

for Rainhart, Dahlstrom, and Ricker. The trial court

found that Rainhart and Ricker testified at trial as

experts and that the City did not object. It was not

therefore not an abuse of discretion to allow ACP to

recover costs for those experts. See NMSA 1978,

§ 38-6-4(B) (1983); Fernandez v. Espafiola Pub. Sch.

Dist., 2005-NMSC-026, 7 5, 138 N.M. 283, 119 P.3d

163 (acknowledging that a party may recover costs

for experts who testify in person or by deposition). We

observe that Dahlstrom did not testify by deposition

or in person at trial. Instead, ACP argues that it

should recover costs for the time that Dahlstrom

spent preparing an affidavit for a summary judgment

motion. Generally, the preparation of an affidavit by

an expert is insufficient to allow the recovery of costs

for expert testimony under Rule 1-054(D)\(2)(g). Pierce

v. State, 121 N.M. 212, 231, 910 P.2d 288, 307 (1995).

Nevertheless, the trial court questioned the parties

44a

about Dahlstrom’s work in this case and learned that

the preparation of the affidavit required review of the

entire, not insubstantial, record. The trial court’s

rationale described above, about the complicated

nature of this case, also supports the decision to allow

Dahlstnom’s work to be recovered as costs. As a

result, the trial court concluded that the costs were

reasonable and we agree. See H-S-B P’Ship, 2008-

NMCA-013, 9 24, 143 N.M. 404, 176 P.3d 1136

(“[Clourts have the discretion to grant a prevailing

party the necessary and reasonable costs incurred in

litigating a case.”).

HI. CONCLUSION

{66} We affirm the trial court and the jury verdict

on the Section 1983 claim and the award of damages,

costs, and fees, with the exception of the award of

post-judgment interest. We remand the matter to the

trial court for an entry of judgment consistent with

this opinion.

{67} IT IS SO ORDERED.

/s/ CELIA FOY CASTILLO

CELIA FOY CASTILLO, Judge

WE CONCUR:

/s/ MICHAEL D. BUSTAMANTE

MICHAEL D. BUSTAMANTE, Judge

/s/ LYNN PICKARD

LYNN PICKARD, Judge Pro Tempore

45a

APPENDIX B

SUPREME COURT OF NEW MEXICO

Nos. 29,791, 29,799

ALBUQUERQUE COMMONS PARTNERSHIP,

Petitioner-Petitioner,

Vv.

CiTy COUNCIL OF THE CITY OF ALBUQUERQUE,

Respondent-Respondent.

ALBUQUERQUE COMMONS PARTNERSHIP,

Petitioner-Petitioner,

Vv.

City COUNCIL OF THE CITY OF ALBUQUERQUE,

Respondent-Respondent.

Feb. 18, 2008.

Rehearing Denied May 2, 2008.

OPINION

BOSSON, Justice.

{1) In Miller v. City of Albuquerque, 89 N.M. 503,

554 P.2d 665 (1976), this Court held that when a

zoning authority rezones a piece of property to a more

restrictive use (known as “downzoning”), the zone

change must be justified by either a change in the

surrounding community or a mistake in the original

zoning. We later reaffirmed this rule in Davis v. City

of Albuquerque, 98 N.M. 319, 648 P.2d 777 (1982),

46a

and applied it to a rezoning pursuant to a sector plan.

In this case, the City of Albuquerque adopted a new

sector plan that restricted the uses on Petitioner’s

property. Petitioner argues, and the district court

agreed, that, in adopting this sector plan, the City

downzoned Petitioner’s property without complying

with Miller and in violation of Petitioner’s procedural

due process rights. A jury also agreed with Petitioner

and awarded damages under 42 U.S.C. § 1983.

{2} The City claims, and the Court of Appeals

agreed in reversing the damages award, that Miller

and Davis do not apply to the City’s zoning action

because (1) the adoption of the sector plan in this

case was a legislative act, and (2) the zone change

was done pursuant to a text amendment, as opposed

to a map amendment, and was therefore not the type

of zone change to which Miller and Davis apply. See

Albuquerque Commons P’ship v. City Cu.ncil of the

City of Albuquerque, 2006-NMCA-143, 140 N.M. 751,

149 P.3d 67, cert granted, 2006-NMCERT-6i1, 140

N.M. 846, 149 P.3d 943 (Commons II ). We now hold

that the City’s actions did constitute a downzoning of

Petitioner's property without complying with impor-

tant standards set forth in Miller and Davis, which

we reaffirm in this Opinion. Accordingly, we reverse

the Court of Appeals and remand for further proceed-

ings.

BACKGROUND

(3} The facts pertinent to this appeal are set forth

thoroughly and comprehensively in the Court of

Appeals opinion, and we refer only to those portions

of the record that are necessary to resolve this

appeal.

{4} From 1987 to 1998, Petitioner Albuquerque Com-

mons Partnership (“ACP”) held a long-term ground

47a

lease for the old St. Pius High School site in

Albuquerque, located north of the Winrock Shopping

Center. This property is part of an approximately

460-acre area designated by the City’s Comprehen-

sive Plan as the Uptown Sector, one of several urban

centers in the city. When ACP leased the 28-acre

parcel from the Archdiocese of Santa Fe, the zoning

was governed by the 1981 Uptown Sector Plan, under

which the majority of the 460 acres, including ACP’s

property, was zoned SU-3, with the periphery being

zoned either SU-2 or R-1. “SU-3 zoning provides

suitable sites for high-intensity mixed uses—com-

mercial, office, service, and residential.” Commons II,

2006-NMCA-143, 7 6, 140 N.M. 751, 149 P.3d 67.

Important to our later analysis, the 1981 Uptown

Sector Plan standards did not mandate minimum

development densities, mixed uses, or parking struc-

tures, and did not prohibit free-standing buildings,

limit the amount of retail use in a development, or

require that an entire project be built at once instead

of in phases.

(5) From the time the City adopted the 1981

Uptown Sector Plan until it passed the 1995

amendments that are the subject of this suit, the City

approved several suburban retail projects within the

same area, including a Beall’s, a Dillard’s addition, a

theater, mall expansion, and three new restaurants

(all at Winrock), as well as three new restaurants

and two new stand-alone retail projects outside

Winrock. The City also approved a zone change

allowing Toys R Us to demolish office space and

replace it with a new stand-alone “medium box” retail

building. As we shall see, these projects would not

have been allowable under the 1995 Uptown Sector

Plan amendments.

48a

{6) In 1991, ACP decided to sell its leasehold,

selecting Opus Southwest Corporation (“Opus”) to

assume development of the property. Opus proposed

to either purchase or lease the property if it could

obtain approval of its site development plan. In June

1994, Opus submitted a site plan for a stand-alone

retail project on ACP’s property. This proposal also

included a request for a zone map amendment

because the site plan included property in the SU-2

zone. Due to strong public opposition, Opus withdrew

its proposal on August 31, 1994.

{7} Two weeks after Opus withdrew its first site

plan proposal, the City passed Memorial M7-1994, re-

questing a comprehensive public review and revision

of the 1981 Uptown Sector Plan. The City stated its

desire to fulfill the vision of the Comprehensive Plan

and observed that the 1981 Uptown Sector Plan

needed to be revised and strengthened. Thus, the

City “requested that the planning department present

its ‘plan-amendment recommendations and a record

of the public review’ of the [1981 Uptown Sector Plan]

to the City’s Environmental Planning Commission

(EPC) for consideration by the end of April 1995.”

Commons II, 2006-NMCA-143, 7 10, 140 N.M. 751,

149 P.3d 67.

{8} Shortly thereafter, on September 30, 1994,

Opus submitted its second site plan, this time

proposing a smaller, 17.90-acre low-density “big-box”

retail project. This project was to be located entirely

within the SU-3 zone and would not require any zone

map amendments. Jd. The Planning Department’s

initial reports to the EPC on the project stated that

the retail uses were allowed by the 1981 Uptown

Sector Plan, and proposed consistent EPC findings.

49a

{9} The Opus site plan was originally set for a

hearing before the EPC in November 1994, but Opus

agreed to a deferral of the hearing until January

1995. EPC then deferred consideration of the site

plan until February 9, 1995, due to information that

the City was considering a moratorium on

development in the Uptown Sector pending revision

of the 1981 Uptown Sector Plan. On February 6,

1995, the City Council passed a resolution placing a

four-month moratorium on all development within

the Uptown Sector.

{10} After instituting the moratorium and deferring

consideration of ACP’s project, the Planning Depart-

ment implemented “a fast-track schedule with spe-

cific deadlines to prepare information necessary to

evaluate proposed revisions to the [1981 Uptown

Sector Plan].” Commons II, 2006-NMCA-143, 7 15,

140 N.M. 751, 149 P.3d 67. The proposed revisions

split the existing SU-3 zone into two new sub-zones:

the “Intense Core” and the “Outside of Intense Core,”

separated by the Loop Road. Though the zoning

classification remained the same for the entire area,

additional regulations applicable only to the Intense

Core were significantly more restrictive than those

under the 1981 Uptown Sector Plan or in the Outside

of Intense Core. The newly-proposed Intense Core

regulations prohibited free-standing retail, imposed

limitations on the size of retail buildings, and

required mixed uses, with retail comprising no more

than 10 percent of space built on a site. Additionally,

the Intense Core regulations required a specific den-

sity of uses, structured parking, and, significantly,

construction of an entire project at once, without

phasing to match construction demand. In contrast,

the Outside of Intense Core regulations allowed retail

uses to continue at existing density. Retail was

50a

limited to 10 percent of mew space, but “rede-

velopment/replacement of existing space” was

exempted.

{11} ACP’s leased property was located entirely

within the Intense Core zone. Only two other

property owners owned land in the Intense Core, and

ACP’s property made up two-thirds of the affected

land. Further, though all three tracts of land were

vacant, only ACP had a pending site plan submitted

to the City. As a practical matter, therefore, the new

regulations affected primarily ACP and its leasehold

interest.

{12} A series of public hearings was scheduled

before the EPC, the Land Use Planning and Zoning

Committee (LUPZ), and the City Council to consider

the amendments. The City initially claimed that the

purpose of the amendments was to improve air

quality. While the EPC agreed that the 1981 Uptown

Sector Plan was in need of revision, it recommended

against adopting the 1995 Uptown Sector Plan,

finding that “the air pollution problem in the Uptown

area would not be significantly affected by the land

uses advocated.” The EPC also observed that testi-

mony from developers indicated that the Floor Area

Ratio minimums and maximums would make devel-

opment uneconomical. Finally, the EPC found that

the proposed amendments to the 1981 Uptown Sector

Plan did not meet the requirements for zone changes

set forth in the City’s Resolution 270-1980, which

sets forth policies and criteria that the City must

follow when deciding zone change applications. More

will be said later about Resolution 270-1980.

{13} The EPC’s findings were discussed at a later

meeting of the LUPZ. At this hearing, the city

attorney stated his opinion that the City did not have

5la

to comply with the requirements of Resolution

270-1980 because those requirements only apply to

zone map amendments and the 1995 Uptown Sector

Plan amendments were text amendments. A planner

with the Environmental Health Division challenged

the EPC’s finding that the amendments would not

significantly improve air quality, stating that the

finding was based only on selected data and explain-

ing that when all data were used, mixed uses,

together with any amount of transportation manage-

ment strategies, would result in fewer exceedances of

the carbon monoxide standards.' Three people with

experience in the real estate or financial field also

testified that the vacant land in the Intense Core

could develop under the 1995 Uptown Sector Plan

restrictions. At the close of the testimony, one of the

councilors stated that the issues underlying EPC’s

recommendation against adoption of the 1995 Up-

town Sector Plan had been significantly addressed,

and LUPZ voted to recommend passage of the revised

sector plan.

{14} The City Council then held two public hearings

on the 1995 Uptown Sector Plan and on June 19,

1995, the Council voted 7-0 in favor of adopting the

amended sector plan. In its resolution adopting the

1995 Uptown Sector Plan, the Council recited intro-

ductory “whereas” paragraphs that tracked similar

paragraphs in the Council’s memorial directing the

1981 Uptown Sector Plan’s revision. These broad

statements did not address the specific criteria that

Though this testimony indicates that air quality would be

improved with mixed uses combined with transportation man-

agement strategies, the district court found that no traffic

demand management measures were included in the 1995

Uptown Sector Plan.

52a

apply to rezonings, as will be discussed later in this

Opinion. Pursuant to the City’s adoption of the 1995

Uptown Sector Plan, the EPC voted to defer con-

sideration of Opus’ site plan indefinitely because it

did not comply with the revised sector plan.

{15} In July 1995, ACP sought district covrt review

under NMSA 1978, Section 3-21-9 (1965), of the

City’s decision to adopt the 1995 Uptown Sector Plan.

That petition was subsequently amended to add

claims under § 1983 for damages allegedly caused by

the City’s deniai of ACP’s rights to substantive and

procedural due process in the adoption of the 1995

Uptown Sector Plan, for inverse condemnation under

state law, and for an unconstitutional taking in

violation of the Fifth Amendment. The district court

found that the 1995 Uptown Sector Plan amend-

ments downzoned ACP’s property and that the City

had not complied with applicable state law, as well as

its own policies and procedures under Resolution

270-1980, in enacting the new sector plan. Therefore,

the court held that the new restrictions in the 1995

Uptown Sector Plan were invalid as applied to ACP

and remanded the case to the City for consideration

of Opus’ site plan under the 1981 Uptown Sector

Plan. The court also found that ACP suffered a

deprivation of its right to procedural due process, and

thus allowed ACP to go forward with its § 1983

damages claim as well as its federal takings claim.

The court dismissed the state takings claim along

with the § 1983 claim based on substantive due

process, ruling that the decision to adopt the 1995

Uptown Sector Plan was not arbitrary and capricious.

{16} While the damages claims proceeded in the

district court, ACP requested that the City Council

conduct a hearing on the Opus site plan under the

53a

1981 Uptown Sector Plan, pursuant to the district

court’s ruling in the first administrative appeal. The

EPC denied approval of the plan, and in March 2000,

the City Council affirmed the EPC’s decision and

denied approval under the 1981 Uptown Sector Plan.

{17} ACP then sought review of the City Council’s

ruling in a second administrative appeal to the

district court pursuant to NMSA 1978, Section

39-3-1.1 (1998). The district court reversed the City

Council’s decision denying approval of the site plan

under the 1981 Uptown Sector Plan and ordered the

City Council to approve the site plan. The City

sought an immediate appeal of the district court’s

ruling in the second administrative appeal to the

Court of Appeals, but on October 3, 2002, the Court of

Appeals ruled that the order was non-final and not

appealable because “ACP’s claim for damages for the

violation of procedural due process claim [sic][was]

still pending.” Albuquerque Commons P’ship v. City

of Albuquerque, 2003-NMCA-022, 9 11, 133 N.M. 226,

62 P.3d 317 (Ct.App.2002) (Commons I ).

{18} In February 2003, ACP’s federal procedural

due process and takings claims were tried to a jury.

“The jury was instructed that the law of the case was

that ACP’s property had been downzoned and that

ACP was entitled to a quasi-judicial hearing before

the property was downzoned.” Commons _ II,

2006-NMCA- 143, J 28, 140 N.M. 751, 149 P.3d 67.

The jury returned a verdict in favor of ACP on both

claims. The verdict for damages for the takings claim

was dismissed pursuant to the election of remedies

doctrine, and on April 11, 2003, the district court

entered final judgment against the City on the due

process verdict in the amount of $8,349,095.00.

54a

{19} The City then sought certiorari review of both

district court administrative reviews in the Court of

Appeals, and also appealed from the district court

judgment on the jury verdict. Commons II, 2006-

NMCA-143, J 29, 140 N.M. 751, 149 P.3d 67. The

Court of Appeals granted the petitions seeking

review of the two administrative appeals and

consolidated all three appeals. Jd.

{20} The Court of Appeals overturned all three

district court decisions. With regard to the first

administrative appeal, the Court of Appeals reversed

the district court, and held that the 1995 Uptown

Sector Plan amendments were legislative text

amendments that did not downzone ACP’s property,

did not need to satisfy the standards of Miller and

Davis, and were therefore valid as applied to ACP.

Id. {{ 39, 67. Because the other two decisions—the

order requiring the City to approve the site plan

under the 1981 Uptown Sector Plan and the § 1983

verdict—were based on the district court’s initial

conclusion with regard to the 1995 Uptown Sector

Plan, the Court of Appeals reversed those decisions

as well. Id. { 78. We granted certiorari to address

issues relating to procedural fairness in the passage

of the 1995 Uptown Sector Plan amendments and, in

particular, the continued applicability of our

precedent in Miller and Davis.

DISCUSSION

First Administrative Appeal

{21} We begin with the first administrative appeal

challenging the City’s adoption of the 1995 Uptown

Sector Plan and its application of the amended sector

plan to ACP’s proposed project. The Court of Appeals

viewed the “pivotal” issue in this matter to be

55a

whether the City’s action in adopting the 1995

Uptown Sector Plan was legislative or quasi-judicial

in nature. See Commons II, 2006-NMCA-143, J 33,

140 N.M. 751, 149 P.3d 67. Finding that the City’s

action was legislative, the Court of Appeals went on

to determine that the City followed proper procedures

in adopting the 1995 Uptown Sector Plan, and that

there was no downzoning of ACP’s property to which

the rules pertinent to such actions would apply. See

id. J 78.

{22} Instead of evaluating the nature of the City’s

action as quasi-judicial or legislative, we begin with

whether the City’s adoption of the 1995 Uptown

Sector Plan Intense Core restrictions effected a down-

zoning of ACP’s property. We view this to be the

critical inquiry because its outcome will determine

what processes the City was required to employ,

what it was required to show, and how much

discretion it had in making its decision. The effect of

the City’s action on the property owner—whether it

constitutes a downzoning or not—determines the

degree of process due, not the label the City employs.

The City acknowledges that it did not follow

quasi-judicial procedures and did not attempt to

satisfy the criteria for a downzoning; it simply denies

that a downzoning took place. Thus, if the 1995

Uptown Sector Plan did not downzone ACP’s pro-

perty, there was nothing wrong with the City’s

adoption of that sector plan by a legislative rather

than a quasi-judicial process. On the other hand, if

the 1995 Uptown Sector Plan amendments did effect

a downzoning of ACP’s property, then those amend.

ments will be invalid as applied to ACP because they

were not justified according to the applicable stan-

daras, or passed pursuant to quasi-judicial proce-

56a

dures designed to safeguard the affected property

owner’s due process rights.

{23} We therefore begin by examining New

Mexico’s law on rezoning amd the standards and

procedures that apply to rezoning actions. We then

address the Citys arguments as to why those

standards and procedures do not apply to the

adoption of the 1995 Uptown Sector Plan

amendments. In doing so, our focus is not on how the

City characterized its zoning action and what

procedures it used, but on what kind of action the

City in fact took, and what procedural protections are

required to accompany such actions.

New Mexico Law on Rezoning: Downzoning and the

Miller Rule

{24} New Mexico courts use the term “downzoning”

to describe rezoning to a more restrictive use. See

KOB-TV, L.L.C. v. City of Albuquerque, 2005-NMCA-

049, J 27, 137 N.M. 388, 111 P.3d 708 (*“KOB”) (citing

Davis, 98 N.M. at 320-21, 648 P.2d at 778-79, for the

proposition that “downzoning consists of the rezoning

of a property to a more restrictive use”). The term as

it has been employed by our courts is essentially a

term of art that implies a rezoning action instituted

by someone other than the landowner—most often

the municipality itself—that is directed at a single

parcel or a small number of parcels within a larger

zone area, and that expands the restrictions on the use

of the property. See Commons II, 2006-NMCA-143,

{ 68, 140 N.M. 751, 149 P.3d 67 (““Downzoning’ is an

informal word of art that almost never appears in the

statutes or ordinances.”); see also Davis, 98 N.M. at

321, 648 P.2d at 779 (noting that Miller involved a

downzoning when the landowner’s property was

rezoned to a more restrictive use upon the City’s

57a

initiative); 3 Edward H. Ziegler, Jr., Rathkopfs The

Law of Zoning and Planning (“Ziegler”) § 38:13, at

38-10 to -11 (2005) (noting that “downzonings are

seldom initiated by the rezoned property owner,

rather, they usually occur at the behest of neighbors

or community groups, or at the initiative of the local

government itself”). Such a targeted rezoning action

is also called a “piecemeal rezoning” and stands in

contrast to a “comprehensive rezoning,” which “affect([s]

a substantial portion of land within the zoning

jurisdiction belonging to many landowners.” Ziegler

§ 38:14, at 38-12; see also KOB, 2005-NMCA-049,

{@ 27, 187 N.M. 388, 111 P.38d 708 (recognizing no

downzoning when rezoning involved amendments

that applied city-wide); Turner v. Bd. of County

Supervisors of Prince William County, 263 Va. 283,

559 S.E.2d 683, 685 (2002) (court found that

ordinance was “piecemeal downzoning” because it

was initiated by the county board, it selectively

targeted certain property, and it reduced the

potential density of the property owners’ land below

that recommended by the county’s master plan).

{25} New Mexico courts have often used the term

“downzoning” as shorthand for those actiens that

require justification pursuant to the “change or

mistake” rule and the zoning authority’s own regula-

tions for zoning amendments, which in this case are

contained in the City’s Resolution 270-1980. The

“change or mistake” rule, adopted by this Court in

Miller and reaffirmed in Davis, dictates that the

proponent of a zoning change, in this instance the

City, must show that such a change is justified due to

either a change in conditions in the community or a

mistake in the original zoning. Miller, 89 N.M. at

506, 554 P.2d at 668 (“The fundamental justification

for an amendatory or repealing zoning ordinance is a

58a

change of conditions . . . necessary to protect the

public interest [or to] cover and perfect previous

defective ordinances or correct mistakes or injustices

therein.” (Quoted authority omitted.)); see also Davis,

98 N.M. at 321, 648 P.2d at 779 (declining to overrule

Miller and rejecting City’s argument that the change

or mistake rule should not apply to rezonings accom-

plished pursuant to amendments to a sector plan).

The rule evidences a concern over the stability of

zoning regulations and a landowner’s right to rely on

existing zoning rules. See Miller, 89 N.M. at 506, 554

P.2d at 668 (noting that the change or mistake rule

supports the “desirable stability of zoning classifica-

tions upon which the property owner has a right to

rely, since property may be purchased and sold or

uses of the property undertaken in reliance on exist-

ing classifications”). As we acknowledged in Miller,

while a property owner does not have a vested right

in a particular zoning classification, before a piece-

meal zoning change is implemented, due considera-

tion must be given to whether such a change is

justified, particularly when the zoning authority and

not the landowner seeks to rezone a piece of property.

Id.

{26} New Mexico courts have not limited the Miller

rule’s applicability to piecemeal rezonings of single

parcels, but have extended it to downzonings done

pursuant to a comprehensive plan, and even to an

upzoning of a specific property upon petition of the

landowner.’ See, e.g., Davis, 98 N.M. at 321, 648 P.2d

at 779 (noting that the fact that the downzoning in

? An upzoning is a zoning action that rezones a parcel to a

less restrictive use. Such zoning actions are usually favored by

landowners as they give greater flexibility in the use of

property.

59a

that case was done pursuant to a comprehensive plan

did not, in itself, distinguish that case from Miller);

W. Old Town Neighborhood Ass'n v. City of Albuquer-

que, 1996-NMCA-107, {9 17-18, 122 N.M. 495, 927

P.2d 529 (holding that an amendment to a sector

plan rezoned landowner’s property to a less restric-

tive use, and thus the City had to justify the change

in accordance with the Miller rule and the City’s

Resolution 270-1980), superceded by statute as stated

in C.F.T. Dev., LLC v. Bd. of County Comm’rs of

Torrance County, 2001-NMCA-069, J 14, 130 N.M.

775, 32 P.38d 784. The characteristic common to those

zoning actions which we have held must be justified

by a change or mistake appears to be that they have

focused on specific properties or small groups of

properties within an otherwise similarly situated

class, restricting or allowing uses in ways that do not

apply to the surrounding area or similar areas within

the city.

{27} To illustrate, in Davis we held that a

downzoning of an eight-block area pursuant to a

sector plan amendment was subject to the change or

mistake rule. 98 N.M. at 321-22, 648 P.2d at 779-80.

Our decision was informed by evidence that the eight

blocks appeared to have been singled out from the

rest of the sector plan, being severely downzoned

while the other areas within the sector plan were

allowed to continue at substantially the same density

and with the same types of structures. Jd. Similarly,

in W. Old Town, 1996-NMCA-107, | 21, 122 N.M.

495, 927 P.2d 529, our Court of Appeals held that the

Miller rule applied to the City’s approval of an

upzoning of a landowner’s property when the City

“attempted to limit the effect of the rezoning to [that]

property alone as a unique situation.”

60a

{28} Also applicable to zoning amendments are the

City’s own rules and policies set forth in Resolution

270-1980. See W. Old Town, 1996-NMCA-107, { 18,

122 N.M. 495, 927 P.2d 529. This provision is quoted

in its entirety in the Court of Appeals opinion. See

Commons II, 2006-NMCA-143, 7 64, 140 N.M. 751,

149 P.3d 67. Resolution 270-1980 tracks the change

or mistake rule, requiring that the proponent of the

zoning change “demonstrate that the existing zoning

is inappropriate because (1) there was an error when

the existing zone map pattern was created, or (2)

changed neighborhood or community conditions jus-

tify the change.” Commons II, 2006-NMCA-143, {| 64,

140 N.M. 751, 149 P.3d 67. The Resolution also

recognizes an additional criterion that can justify a

zoning amendment, stating that the proponent of the

change may show that “a different use category is

more advantageous to the community, as articulated

in the Comprehensive Plan or other City master plan,

even though (1) or (2) above do not apply.” Jd.

{29} The relationship between the Miller rule and

Resolution 270-1980 is unclear; Miller and Davis

appear to speak only in terms of change or mistake as

the exclusive criteria upon which a zoning amend-

ment may be based. However, upon closer reading,

both cases suggest that a demonstration of a change

in the community or a mistake in tb¢ original zoning

are not the only valid justifications for a zoning

change. Miller expresses a primary concern over “the

desirable stability of zoning classifications upon

which the property owner has a right to rely, since

property may be purchased and sold.” 89 N.M. at 506,

554 P.2d at 668. The change or mistake criteria are

referred to as “principles and considerations [that]

must be taken into account, particularly when the

zoning change of a piece of property is sought by the

6la

zoning authority instead of by the owner of the prop-

erty affected.” Jd. Thus, change or mistake were not

envisioned as strict, all-encompassing requirements,

without which a zoning change will never be justified.

Similarly, in Davis, we recognized that “a more rea-

sonable downzone or a more reasonable comprehen-

sive plan might be sufficient to remove the case from

the Miller requirements of ‘mistake or change.” 98

N.M. at 321, 648 P.2d at 779. Thus, the third crite-

rion in Resolution 270-1980 is not necessarily incom-

patible with the principles set forth in Miller and

Davis.

{30} The enhanced procedures that are required to

accompany proposed zoning changes directed at a

small number of properties constitute the primary

protection for the landowner. Rigid application of the

Miller rule to those proposed changes is therefore

unnecessary and can unduly impede the zoning

authority's ability to make zoning decisions that are

ultimately beneficial to the community at large.

Resolution 270-1980 adequately accommodates the

need for planning and zoning flexibility. Therefore,

without adopting any absolute standards or

mechanical tests, we recognize that a municipality

may be able to justify an amendment that downzones

a particular property by demonstrating that the

change is “more advantageous to the community, as

articulated in the Comprehensive Plan or other City

master plan.” Resolution 270-1980; accord Commons

II, 2006- NMCA-143, 9 64, 140 N.M. 751, 149 P.3d

67. The proof in such a case would have to show, at a

minimum, that “(1) there is a public need for a

change of the kind in question, and (2) that need will

be best served by changing the classification of the

particular piece of property in question as compared

with other available property.” Fasano v. Bd. of

62a

County Comm’rs of Washington County, 264 Or. 574,

507 P.2d 23, 28 (1973), superceded by statute as

stated in Menges v. Bd. of County Comm’rs of

Jackson County, 44 Or.App. 603, 606 P.2d 681 (1980)

(en banc).

Quasi-Judicial Versus Legislative Zoning Decisions

{31} The essence of ACP’s challenge to the 1995 Up-

town Sector Plan Intense Core restrictions is that

ACP’s property was singled out for a downzoning and

the City failed to follow the proper procedures or comply

with the requisite criteria in adopting those amend-

ments. The nature of a particular zoning action as

either legislative or quasi-judicial is determinative of

the procedures that the zoning authority is required

to follow in implementing that action. See Hart v.

City of Albuquerque, 1999-NMCA-043, 9 13, 126 N.M.

753, 975 P.2d 366 (“Zoning decisions can be either

legislative or quasi-judicial depending upon the im-

pact of the zoning change.”); Ziegler § 40:22, at 40-49

(noting that characterization of a rezoning as quasi-

judicial can result in the parties being entitled to

greater procedural rights and enabling reviewing

courts to conduct a closer scrutiny of the merits of the

rezoning decision). We note that while we use the

labels “legislative” and “quasi-judicial” for the sake of

convenience, the real question here is whether the

City’s adoption of the 1995 Uptown Sector Plan

amendments was fair overall, affording ACP ade-

quate due process of law. See Hacker v. Baesler, 812

S.W.2d 706, 709 (Ky.1991) (“Much argument has

been offered as to whether [a zoning map] amend-

ment process ought to be labeled legislative, judicial,

[or] quasi-judicial. [T]he ultimate question is, con-

sidering the nature, subject, and purpose of the

proceeding and the constitutional rights of the par-

63a

ticipants, how much process of law is due?”); Ed

Zaagman, Inc. v. City of Kentwood, 406 Mich. 137,

277 N.W.2d 475, 499 n. 33 (1979) (Levin, J., for

affirmance and remand) (cautioning that discussion

of the labels “legislative” and “quasi-judicial” “should

not be emphasized to the point of distraction from the

underlying concepts [because t]he issue is one of

procedural fairness and predictability that is adapt-

able to local conditions and capabilities” (quoted

authority omitted)), overruled on other grounds by

Schwartz v. City of Flint, 426 Mich. 295, 395 N.W.2d

678, 679 (1986).

(32) The Court of Appeals aptly explained the

differences between legislative and quasi-judicial

actions as follows:

(Llegislative action reflects public policy relating

to matters of a permanent or general character,

is not usually restricted to identifiable persons or

groups, and is usually prospective; quasi-judicial

action, on the other hand, generally involves a

determination of the rights, duties, or obligations

of specific individuals on the basis of the applica-

tion of currently existing legal standards or

policy considerations of past or present facts

developed at a hearing conducted for the purpose

of resolving the particular interest in question.

Commons II, 2006-NMCA-143, 9 36, 140 N.M. 751,

149 P.3d 67. Small-scale zone changes to which the

Miller rule and Resolution 270-1980 apply are nec-

essarily quasi-judicial, not legislative, in nature. As

we noted earlier, the term “downzoning” is used to

indicate a rezoning directed at a small number of

properties, newly restricting the uses of those

properties in ways that are not applicable to the

surrounding area. Such restrictions are limited to

64a

identifiable properties and are not general policy

decisions that apply broadly. Further, because such

changes must be justified pursuant to the Miller rule

and Resolution 270-1980 (or a similar local policy),

they require specific factual findings relating to the

affected properties. See Strawberry Hill 4 Wheelers v.

Bd. of Comm'rs for Benton County, 287 Or. 591, 601

P.2d 769, 775-76 (1979) (en banc) (noting that where

pre-existing criteria guide the result, quasi-judicial

proceedings are necessary to elicit the determinative

facts). These qualities are the hallmarks of a quasi-

judicial action.

{33} Characterization of a zoning action as quasi-

judicial carries with it important procedural conse-

quences. Thus, when a zoning authority initiates a

proposal to downzone a particular property, the zon-

ing authority must afford enhanced procedural pro-

tections to landowners whose properties are the

subject of the zone change. See Ziegler § 40:22, at

40-49 (noting that characterization of a rezoning as

quasi-judicial can result in the parties being entitled

to greater procedural rights and enabling reviewing

courts to conduct a closer scrutiny of the merits of the

rezoning decision). Quasi-judicial zoning matters are

not politics-as-usual as far as the municipal govern-

ing body is concerned. In such proceedings, the

council does not sit as a mini-legislature, as it func-

tions in most matters, but instead must act like a

judicial body bound by “ethical standards comparable

to those that govern a court in performing the same

function.” High Ridge Hinkle Joint Venture v. City of

Albuquerque, 119 N.M. 29, 40, 888 P.2d 475, 486

(Ct.App.1994).

{34} Therefore, in addition to the right to individual

notice, interested parties in a quasi-judicial zoning

65a

matter “are entitled to an opportunity to be heard, to

an opportunity to present and rebut evidence, to a

tribunal which is impartial in the matter—i.e.,

having had no pre-hearing or ex parte contacts

concerning the question at issue—and to a record

made and adequate findings executed.” Fasano, 507

P.2d at 30. The burden is on the proponent of the

zone change to establish that the change is justified.

See South of Sunnyside Neighborhood League v. Bd.

of Comm’rs of Clackamas County, 280 Or. 3, 569 P.2d

10623, 1071 (1977) (en banc). While the specific

procedures employed “must adhere to fundamental

principles of justice and procedural due process,” they

are not required to comport with the same

evidentiary and procedural standards applicable to

a court of law. W. Bluff Neighborhood Ass’n,

2002-NMCA-075, 7 46, 1382 N.M. 433, 50 P.3d 182,

overruled on other grounds by Rio Grande Chapter of

Sierra Club, 2003-NMSC-005, 133 N.M. 97, 61 P.3d

806. The issue is one of procedural fairness and

predictability that is adaptable to local conditions

and capabilities. The use of terms such as cross-

examination, fair and impartial tribunal, and the

like, need not be interpreted in the same sense as it

might be in an attempt to reform the judicial process.

Ed Zaagman, Inc., 277 N.W.2d at 499 n. 33 (Levin,

J., for affirmance and remand). In New Mexico,

justification for small-scale zone changes is governed

by the criteria set forth in Miller and in the muni-

cipality’s own policies and procedures, which in this

case are contained in Resolution 270-1980.

{35} Regardless of the justification, the

decision-making body should provide “a _ clear

statement of what, specifically, [it] believes, after

hearing and considering all the evidence, to be the

relevant and important facts upon which its decision

66a

is based,” and a full explanation of why those facts

lead it to the decision it makes. South of Sunnyside

Neighborhood League, 569 P.2d at 1076. This is

critical for facilitating meaningful judicial review of

the action, “not for the purpose of substituting

judicial judgment for administrative judgment but for

the purpose of requiring the [zoning authority] to

demonstrate that it has applied the criteria

prescribed by . . . its own regulations and has not

acted arbitrarily or on an ad hoc basis.” Id.; see Smith

v. Bd. of County Comm’rs of Bernalillo County,

2005-NMSC-012, 32-33, 137 N.M. 280, 110 P.3d

496 (reversing County’s denial of a radio tower

permit upon finding that, in denying the permit after

having initially granted it, officials went against

their original interpretation of the relevant ordinance

and acted on an ad hoc basis).

The City’s Arguments

{36} In a conscious decision, the City chose not to

follow the procedural standards that attach to a

quasi-judicial downzoning. Instead, on advice of

counsel, the City adopted the 1995 Uptown Sector

Plan amendments in the form of a legislative

proceeding, thereby limiting evidence, preventing

cross-examination, and making no effort to provide

ACP with an impartial tribunal by limiting ex parte

contacts on the part of the council! members.*® Apart

° As an example of the legislative-type lobbying that accompa-

nied the passage of the 1995 Uptown Sector Plan amendments,

Ron Nelson, President of the Uptown Association, called Counci-

lor Vicki Perea after she had proposed amendments to the 1995

Uptown Sector Plan that would have eased the impact on ACP.

Mr. Nelson encouraged Councilor Perea not to make amend-

ments that would allow the Opus Plan to proceed and stated his

belief that if she worked at it, Councilor Perea could get the four

67a

from the broad and conclusory “whereas” points set

forth in the ordinance adopting the 1995 Uptown

Sector Plan, the City made no findings at all, let

alone any specific findings of fact and explanation of

how those facts justified the amendments under the

Miller and Resoiution 270-1980 criteria.

{37} However, the City argues, and the Court of

Appeals agreed, that the 1995 Uptown Sector Plan

Intense Core restrictions were valid because neither

quasi-judicial procedures nor justification pursuant

to Miller and Resolution 270-1980 were required in

this case. With regard to the procedures used, the

City contends that adoption of the 1995 Uptown

Sector Plan was a legislative act, and therefore did

not require any enhanced procedural protections for

the affected landowners. As to the applicability of

Miller and Resolution 270-1980, the City claims that

those rules do not apply to rezonings accomplished by

text amendments. This brings us to the crux of the

case and to the decisive points where we disagree

with the City and the Court of Appeals. We address

each argument in turn.

Adoption of the 1995 Uptown Sector Plan Intense

Core Restrictions Was Not a Legislative Act

{38} The Court of Appeals determined that adoption

of the 1995 Uptown Sector Plan was a legislative act,

reasoning that the City’s decision was drawn to apply

votes needed to pass the amendments favored by the Uptown

Association. Councilor Perea then withdrew her proposed amend-

ments. Such contacts and influence are common and appropri-

ate in the normal legislative functioning of a city council.

However, when a council sits in a quasi-judicial capacity, as it

must to effect a downzoning, its members must be insulated

from such contact.

68a

in the same way, both currently and in the future, to

all similarly situated properties, and was “premised

on a desire to clarify and strengthen the [1981

Uptown Sector Plan].” Commons II, 2006-NMCA-143,

{@ 39, 140 N.M. 751, 149 P.3d 67. In support of its

holding, the Court of Appeals analogized this case to

one of its earlier opinions. See KOB, 2005-NMCA-

049, IJ 37-39, 137 N.M. 388, 111 P.38d 708. In KOB,

2005-NMCA-049, ¥ 8, 137 N.M. 388, 111 P.3d 708,

the City of Albuquerque adopted an ordinance that

disallowed helipads in SU-2/O-1 zones, restricting

helipads to SU-1 zones only, with exceptions for law

enforcement and hospitals. KOB had obtained a

permit and constructed a helipad for its television

station under the formerly allowed uses for SU-2/O-1

zones. KOB argued that the ordinance downzoned its

property, and thus the City was required to justify

the new restrictions in accordance with the Miller

rule. Jd. { 27. The Court of Appeals held that the

City’s adoption of the ordinance was legislative in

nature because it established policy for the entire

city, such that all SU-2/O-1 zones were subject to the

same restrictions: no more helipads were to be

allowed. Id. | 23. Even though the ordinance had a

practical effect on only two landowners by virtue of

the fact that only two landowners within the affected

zones had helipads, the restrictions were comprehen-

sive in that they applied city-wide. Accordingly, the

Court of Appeals upheld the new restrictions as a

legislative act to which Miller did not apply.

{39} Relying on KOB, the Court of Appeals correctly

observed that a downzoning does not necessarily

occur, requiring quasi-judicial process, simply be-

cause only a small number of properties are impacted

by the decision or “a particular parcel is in the mind

of the zoning authority when it takes action.”

69a

Commons II, 2006-NMCA-143, 9] 37-39, 140 N.M.

751, 149 P.3d 67. That statement is true as far as it

goes, although the narrower the focus of the zoning

action, the more likely it is that Miller will be

implicated. By the same token, the fact that policy

decisions are involved does not necessarily mean that

a zoning action does not effect a downzoning. “Large-

scale decisions of specific applicability frequently, if

not inevitably, require of the decision-maker both the

creation and the application of policy.” Neuberger v.

City of Portland, 288 Or. 155, 603 P.2d 771, 776

(1979). Nor is a rezoning, that applies to more than a

single parcel, necessarily legislative. See South of

Sunnyside Neighborhood League, 569 P.2d at 1071 n.5

(emphasizing that, by using the terms “single tract”

and “single parcel,” the court did not intend to adopt

a test for determining when a given land-use decision

was quasi-judicial or legislative). When a zoning

action is specifically designed to affect a relatively

small number of properties and does not apply to

similarly situated properties in the surrounding area

or city-wide, that action is quasi-judicial, not legisla-

tive.

{40} This case involves restrictions of a different

nature than those addressed in KOB. The 1995

Uptown Sector Plan Intense Core restrictions, did not

apply city-wide, or to the other five urban centers in

the city, or even throughout the Uptown SU-3 a’ea.

Rather, the restrictions were confined to only a small

portion of the Uptown sector, comprising about six

percent of the total area and affecting only three

landowners, by far the largest being ACP. Had the

restrictions applied to all SU-3 zones in the city, or

even had they applied throughout the Uptown SU-3

sector, then KOB might be of some precedential

assistance. But, given that the restrictions were

70a

limited to three parcels comprising only six percent of

the Uptown sector, the Court of Appeals’ reliance on

KOB is misplaced.‘

{41} Further, it appears that the 1995 Uptown

Sector Plan amendments were not simply designed

“to clarify and strengthen the [1981 Uptown Sector

Plan],” as the Court of Appeals held. Commons II,

2006-NMCA-143, 9 39, 140 N.M. 751, 149 P.3d 67.

The plain language of the 1981 Uptown Sector Plan,

the City’s own construction of the 1981 Uptown

Sector Plan, and prior City approvals under that plan

treated all of the SU-3 zone in Uptown as a “subur-

ban commercial” center with shopping centers and

restaurants that could be built “to virtually any

intensity.” Indeed, as stated earlier, an initial staff

report on the second site plan submitted by Opus

acknowledged that “the zoning on this site plan

allows the proposed retail uses.” Moreover, the.

amendments, by not placing limitations on retail uses

for redevelopment or replacement of existing develop-

ments, were tailored to affect only ACP—the only

property owner in the Uptown sector with a pending

site plan—while exempting existing businesses.

{42} We are not persuaded by the City’s assertion

that the 1995 Uptown Sector Plan amendments

merely made explicit what was already implicit in

the 1981 Uptown Sector Plan. The very fact that the

City postponed a decision on ACP’s proposal while it

rushed the sector plan amendments through a leg-

islative process leads to a fair inference that the 1995

* Because this case is demonstrably different from KOB, we

need not inquire as to whether KOB correctly interprets and

distinguishes Miller and Davis. We do note that this Court

never had the opportunity to review that decision because KOB,

the losing party on appeal, never sought a writ of certiorari.

T1la

Uptown Sector Plan was meant to change the former

sector plan, not simply clarify it. It is difficult to see

why, if the City could have denied ACP’s permit

under the 1981 Uptown Sector Plan, it did not do so

at the outset. Instead, the City felt it necessary to

stall consideration of ACP’s permit and hastily

amend the original sector plan.°

{43} Regardless of how the City tries to construe its

actions, substantial evidence at trial showed that the

1995 Uptown Sector Plan Intense Core restrictions

were directed specifically towards ACP and were not

public policy matters of a general character. Those

changes amounted to a downzoning of ACP’s property

and required justification based on the specific,

fact-based criteria set forth in Miller and Resolution

270-1980. W. Old Town, 1996-NMCA-107, ¥{ 16, 122

N.M. 495, 927 P.2d 529 (“The procedures for amend-

ing a sector plan are . .. the same as those for

amending a zoning map.”). Thus, the City’s adoption

of the 1995 Uptown Sector Plan was the type of

zoning action that New Mexico courts, as well as

courts from other jurisdictions, have traditionally

© We observe that the City had ample opportunity prior to the

submission of the Opus site plan to amend the Uptown Sector

Plan. Indeed, the City had been in the process of reviewing the

1981 Uptown Sector Plan and developing draft revisions since

1989. The draft revisions submitted prior to ACP’s submission of

its site plan did not create a new Intense Core zone with heavier

restrictions than the surrounding area, and did not restrict

stand-alone retail projects, set mixed-use or density require-

ments, require structured parking, or prohibit phased construc-

tion to match demand. These initial draft revisions thus lend

further support to the argument that the amendments proposed

subsequent to ACP’s site-plan, and ultimately passed by the

City, were specifically designed to prevent ACP’s proposed

project.

72a

viewed as quasi-judicial in nature primarily because

of the disparate impact on only a small number of

landowners. See, e.g., W. Old Town, 1996-NMCA-107,

G@ 11, 122 N.M. 495, 927 P.2d 529; McPherson Land-

fill, Inc. v. Bd. of County Comm'rs of Shawnee

County, 274 Kan. 303, 49 P.3d 522, 524 (2002)

(“(Wlhere the focus of the zoning authority shifts

from the entire city or county to one specific tract of

land for which a zoning change is urged, the function

of the zoning authority becomes more quasi-judicial

in nature than legislative.”); South of Sunnyside

Neighborhood League, 569 P.2d at 1071 (“[T}he deci-

sion to amend the comprehensive plan as it applies to

[a] single parcel of land is a quasi-judicial, rather

than a legislative, decision.”); Fleming v. City of

Tacoma, 81 Wash.2d 292, 502 P.2d 327, 331 (1972)

(en banc) (“(IJn amending a zoning code, or reclassify-

ing land thereunder, [a municipal legislative body], in

effect, makes an adjudication between the rights

sought by the proponents and those claimed by the

opponents of the zoning change.”), overruled on other

grounds by Raynes v. City of Leavenworth, 118

Wash.2d 237, 821 P.2d 1204, 1208-09 (1992).

Rezoning By Text Amendment Versus Map

Amendment

{44} The City presents an alternate argument for

not following Miller and the Resolution 270-1980

criteria, premised on a purported distinction between

zoning text amendments and zoning map amenc-

ments. Specifically, the City argues that “the

adoption of the [1995 Uptown Sector Plan] was not a

rezoning of ACP’s property but was a text amend-

ment to the zoning code, which strengthened the

existing regulations in order to assure development of

an urban center, as already required by the [1981

73a

Uptown Sector Plan] and Comprehensive Plan.”

Commons II, 2006-NMCA-143, 7 40, 140 N.M. 751,

149 P.3d 67 (emphasis added). The Court of Appeals

found the distinction between a zoning text amend-

ment and a zoning map amendment persuasive. We

are somewhat skeptical.

{45} In analyzing this argument, the Court of

Appeals correctly observed that zoning map

amendments “involve[ ] the zoning district reclass-

ification of a particular tract of land by alteration of

the official zoning map,” while zoning text amend-

ments “do not affect the zoning district classification,

but rather change the allowed or permitted uses

within a particular zoning district.” Jd. | 42. Thus,

“[zloning text amendments do not affect the zoning

district classification, but rather change the allowed

or permitted uses within a particular zoning district.”

Id. Relying on two New Mexico Court of Appeals

cases, the Court of Appeals found this distinction

pivotal, reasoning that “the general term ‘rezoning’

seems to refer to a zone reclassification by map

amendment,” but not by text amendment. Jd. J 44. In

other words, the known consequences of a zoning

map amendment in terms of Miller and Resolution

270-1980 do not apply if the amendment is of the text

but not the map. We now turn to an analysis of those

two opinions.

{46) In Mandel v. City of Santa Fe, 119 N.M. 685,

686, 894 P.2d 1041, 1042 (Ct.App.1995), the City of

Santa Fe amended the text of the zoning code to

permit the Historic Design Review Board to limit the

height of structures within certain historic districts

to lesser heights than that allowed by the underlying

zoning. Pursuant to this text amendment, the Review

Board denied Mandel’s proposed construction project

T4a

based on the existence of inappropriate second-story

structures, and the City affirmed the denial. 7d. at

687, 894 P.2d at 1043. Mandel claimed that the

application of the height amendment to his property

was an unlawful downzoning. Jd. While the Court of

Appeals “accept{ed] the notion that the allowable use

of [Mandel’s] property [had] been restricted,” it

nevertheless held that Mandel’s property had not

been downzoned. Id. at 688, 894 P.2d at 1044. The

Court reasoned that “there was no rezoning that

affected only Mandel’s property or even Mandel’s

neighborhood. Rather, the City adopted a height

restriction that could be generally applied to all

properties in historic districts in the City.” Id. at 689,

894 P.2d at 1045.

{47} As it did when deciding whether the City’s

action was legislative or quasi-judicial, the Court of

Appeals again looked to KOB in its analysis of zoning

text amendments. See Commons II, 2006-NMCA-143,

1% 44-46, 140 N.M. 751, 149 P.3d 67. As noted pre-

viously, in KOB, the City of Albuquerque adopted an

ordinance that disallowed helipads in SU-2/O-1

zones, restricting them to SU-1 zones with exceptions

for law enforcement and hospitals. These changes

were made pursuant to text amendments to the zon-

ing code. The KOB court, relying in part on Mandel,

held that because the ordinance established policy for

the entire city such that all SU-2/O-1 zones were

subject to the same restrictions, the City’s actions did

not amount to a downzoning requiring a showing of

change or mistake.

{48} While it is true that both KOB and Mandel in-

volved text amendments that were held not to have

downzoned the complaining landowner’s property,

those decisions did not turn on the amendments

75a

being to the text as opposed to the map. Rather, it

was because the amendments were not site-specific

that there was no downzoning to which the Miller

rule would apply. As we have discussed, the City’s

amendments to the Uptown Sector Plan were very

much site-specific, and it is this fact that fundamen-

tally distinguishes KOB and Mandel from the present

controversy.

{49} While the restrictions on ACP’s property were

accomplished by text amendment, that is where the

similarity to Mandel and KOB ends. We agree in-

stead with the district court that the 1995 Uptown

Sector Plan Intense Core restrictions effectively

created a new sub-zone within the Uptown Sector,

regardless of whether such rezoning was accom-

plished by text amendment or map amendment. The

only factor distinguishing this case from Davis is that

the amendment in Davis was to the zoning map, not

to the text. As we have indicated, that distinction is

not dispositive; a bright-line rule that distinguishes

between text amendments and map amendments

such that the former can never constitute a rezoning

would be a classic elevation of form over substance.

We hold that the Intense Core restrictions imple-

mented by the 1995 Uptown Sector Plan rezoned

ACP’s property to a more restrictive use, an action for

which our courts have historically required justifica-

tion by a showing of change in the community or

mistake in the original zoning.

{50} For the same reasons, we reject the City’s argu-

ment and the Court of Appeals’ holding that Resolu-

tion 270-1980 does not apply in this case. While it is

true that Resolution 270-1980 refers only to zone

map changes and not text changes, the practical

76a

effect of the 1995 Uptown Sector Plan was a map

amendment, despite the labels used by the City.

{51} In this case, the City accomplished in practical

effect through text amendment what would normally

be done by map amendment. Indeed, in the 1995

Uptown Sector Plan, the Intense Core and the Out-

side of Intense Core are each labeled as a “zone.” The

1995 Uptown Sector Plan Intense Core restrictions

singled out a small section of the Uptown Sector and

downzoned that area, requiring the City, as the

proponent of the zone change, to justify that change

in accordance with the criteria set forth in Miller and

Resolution 270-1980. The City did not do so. “The

City may not ignore or revise its stated policies and

procedures for a single decision, no matter how well-

intentioned the goal may be.” W. Old Town, 1996-

NMCA-107, J 26, 122 N.M. 495, 927 P.2d 529.

{52} The City has failed to show that the adoption

of 1995 Uptown Sector Plan amendments was legisla-

tive in nature, or that because the amendments were

text amendments they did not rezone ACP’s property.

There is no legitimate justification for the City’s

failure to afford the proper procedural protections or

comply with the standards set forth in Miller and

Resolution 270-1980. We hold that the City’s decision

lacked procedural fairness and did not comport with

due process of law.

The Second Administrative Appeal and ACP’s § 1983

Damages Claim

{53) As described earlier, on remand from the first

administrative appeal, the City denied ACP’s site

plan under the 1981 Uptown Sector Plan, and ACP

appealed to the district court. On the second appeal,

Judge Lang found that the City had not considered

T7Va

the site plan as previously ordered by Judge Conway

on the first appeal. Judge Lang then found that the

site plan complied with the 1981 Uptown Sector Plan

and ordered the City to approve the plan. The City

appealed this ruling to the Court of Appeals, which

held that the ruling was not a final order because the

§ 1983 damages claim was still pending in the district

court. In the consolidated appeal below, the City

again argued that the district court lacked the power

to order the City to approve ACP’s site plan. Because

the Court of Appeals found the 1995 Uptown Sector

Plan valid, contrary to the district court, the Court of

Appeals did not have to reach the merits of the City’s

position that Judge Lang did not have the authority

to order the City to approve the Opus site plan under

the 1981 Uptown Sector Plan.

(54) We also do not reach that issue because it is

now moot. The Archdiocese of Santa Fe sold ACP’s

site, and a new development was approved and built

by another developer under later revisions to the

1995 Uptown Sector Plan which allowed the

increased retail use and phased construction that

was denied to ACP. Therefore, the only remaining

issues involve ACP’s § 1983 damages action and its

takings claim.

(55) With regard to the § 1983 damages action, the

City argued in the Court of Appeals that ACP had no

constitutionally protected property interest, and there-

fore did not satisfy the threshold requirement for a

§ 1983 claim. ACP countered that because § 1983

property interests are defined by state and not fed-

eral law, New Mexico recognizes a property owner's

right to be free from unjustified downzonings directed

at his property, as indicated in Miller and Davis. See

also Smith, 2005-NMSC-012, 7 33, 137 N.M. 280, 110

78a

P.3d 496 (“[Landowners} have a right to use their

property as they see fit, within the law, unless

restricted by regulations that are clear, fair, and

apply equally to all.”).®

(56) The City also argued that ACP, even if it had a

protected property interest, was only entitled to

nominal damages because it failed to show that if the

City had implemented a fair process and followed the

Miller and Resolution 270-1980 requirements, the

amendments would not have been passed in any

event.’ ACP claimed that this issue had been argued

and submitted to the jury, and that the jury’s verdict

demonstrated that ACP proved its entitlement to

compensatory damages. These arguments were not

addressed by the Court of Appeals based on its

* Other jurisdictions recognize a protected property interest

when a landowner has taken substantial steps in reliance on an

existing zoning classification. See, e.g., Nasierowski Bros. Inv.

Co. v. City of Sterling Heights, 949 F.2d 890, 897(6th Cir.1991)

(landowner who had taken substantial steps in reliance on the

existing zoning classification and representations by the city

that his planned development was permitted by that zoning had

property interest in the old zoning classification within which

his development was permitted).

7 We note that federal case law appears to allocate this bur-

den differently. Thus, when a § 1983 plaintiff successfully

proves a violation of procedural due process that results in a

deprivation of a protected property interest, it is the defendant's

(the City’s) burden to prove that the same results would have

been obtained, even if the plaintiff's due process rights had not

been violated. See, e.g., Gomes v. Wood, 451 F.3d 1122, 1131

(10th Cir.2006) (stating that “when a procedural due process

violation occurs and adverse action results, damages for injuries

caused by the adverse action may not be recovered if the defen-

dant can prove the action would have been taken even absent

the violation” (citing Carey v. Piphus, 435 U.S. 247, 260, 98

S.Ct. 1042, 55 L.Ed.2d 252 (1978) (emphasis added))).

19a

decision regarding the first administrative appeal.

Because we reverse that decision, we remand the

case to the Court of Appeals to consider the City’s

remaining issues argued on appeal in light of our

analysis on the first administrative appeal and our

discussion of Miller and Resolution 270-1980.

{57} With regard to the takings claim, the Court of

Appeals observed that ACP’s experts, who testified

that the 1995 Uptown Sector Plan prevented any

type of economically feasible development of the

property, did not take into account the effect of the

1981 Uptown Sector Plan on the site plan. The Court

of Appeals then stated that the effect of its opinion

was “to uphold the City’s denial of the site plan under

the [1981 Uptown Sector Plan].” Commons II,

2006-NMCA-143, 9 87, 140 N.M. 751, 149 P.3d 67.

Thus, the Court of Appeals reasoned that these

expert opinions could not form the basis for the

damages awarded by the jury on ACP’s takings

claim. Having so heid, the Court of Appeals

concluded that, “[s]ince ACP’s proposed development

could not have been built under the [1981 Uptown

Sector Plan], no damages could have resulted from

similar prohibitions under the [1995 Uptown Sector

Plan], and ACP therefore failed in its burden to prove

that the (1995 Uptown Sector Plan] effected an

unconstitutional taking caused by the denial of all

economically viable use of the property.” Jd.

{58} We disagree with the Court of Appeals that the

site plan was not approvable under the 1981 Uptown

Sector Plan. As we have observed, the very fact that

the City rushed to enact the 1995 Uptown Sector

Plan amendments before it considered ACP’s pro-

posed site plan—-a plan which the planning depart-

ment had already deemed to be in compliance with

80a

the 1981 Uptown Sector Plan—undermines the City’s

position that it could have denied that proposed plan

under the 1981 Uptown Sector Pian. Further, the

discretion that the City possesses to deny site plans

that are otherwise in compliance with existing zoning

regulations is limited by the requirement that the

City’s decision pass muster under judicial review for

administrative actions that are arbitrary and capri-

cious or otherwise contrary to law. Existing zoning

regulations and sector plans would mean little if the

City had limitless discretion to deny proposed

developments that were otherwise in compliance

with those requirements. See Smith, 2005-NMSC-012,

q 33, 187 N.M. 280, 110 P.3d 496 (“Ad hoc, standard-

less regulation that depends on no more than a

zoning official’s discretion would seriously erode basic

freedoms that inure to every property owner.”).

{59} The record shows that the Opus site plan,

though it needed some adjustments (adjustments

that were in the process of being made at the time

the City imposed the moratorium to consider the

1995 Uptown Sector Plan amendments), complied

with the requirements of the 1981 Uptown Sector

Plan and was no different from a number of projects

that the City had previously allowed under that

sector plan. See Smith, 2005-NMSC-012, { 30, 137

N.M. 280, 110 P.3d 496 (“Courts generally show little

deference to an agency’s interpretation of its own

statute when the interpretation is an unexplained

reversal of a previous interpretation or consistent

practice.” (Quoted authority omitted.)); High Ridge

Hinkle Joint Venture, 119 N.M. at 41, 888 P.2d at 487

(noting that the City Council “should not be permit-

ted to achieve retroactivity through the back door by

changing the meaning of an ordinance while leaving

the language the same”). Because our Opinion has

8la

now eliminated the basis for the Court of Appeals’

reversal of ACP’s takings claim, we remand the

takings claim for the Court of Appeals to consider the

other arguments raised by the City with respect to

that claim.®

CONCLUSION

{60} We reverse the Court of Appeals on the first

administrative appeal and affirm the district court on

that matter. The case is remanded to the Court of

Appeals to consider the City’s remaining cleims of

error.

{61) IT IS SO ORDERED.

WE CONCUR: EDWARD L. CHAVEZ, Chief

Justice, PATRICIO M. SERNA and PETRA

JIMENEZ MAES, Justices, and PAUL KENNEDY, J.

Pro-Tem.

* Of course, if the Court of Appeals finds for ACP on its § 1983

action and affirms the jury’s award of damages on that claim,

there will be no need to address the takings issue, as the tak-

ings verdict was an alternative to the due process verdict.

82a

APPENDIX C

COURT OF APPEALS OF NEW MEXICO.

Nos. 24,026, 24,027, 24,042.

ALBUQUERQUE COMMONS PARTNERSHIP,

Petitioner-Appellee,

Vv.

CiTy COUNCIL OF THE CITY OF ALBUQUERQUE,

Respondent-Appellant.

April 26, 2006.

Revised Dec. 19, 2006.

Certiorari Granted, No. 29,791, Nov. 29, 2006.

OPINION

CASTILLO, Judge.

{1} On motion for rehearing, the opinion filed Decem-

ber 9, 2005, is withdrawn, and the following opinion

is substituted in its place. Additionally, we append an

order on rehearing, in which we address four issues

argued in the motion for rehearing that were not

developed in the original opinion, were not addressed,

or need clarification. The motion is otherwise denied.

{2} This case is before us on the City Council of the

City of Albuquerque’s (City or City Council) appeal

from a jury verdict and on writs of certiorari that we

granted to review district court appeals of two

administrative decisions, all relating to the City’s 1995

amendment of the Uptown Sector Plan (95USP). The

83a

district court determined that the amendment targeted

the property of Albuquerque Commons Partnership

(ACP) and resulted in a downzoning of that property.

The district court ordered the City to consider ACP’s

development plan under the previous sector plan, the

1981 Uptown Sector Plan (81USP). Upon remand,

the City considered the development plan under the

81USP and denied the development. ACP appealed

that denial to the district court. The court determined

that the City had not reviewed the development as

ordered and concluded that the development had

to be approved. In the meantime, ACP’s claim

for damages for violation of constitutional rights,

resulting in a taking and violation of civil rights in

connection with the 95USP, proceeded to a jury trial.

The jury found for ACP and awarded damages of

$8,349,095. We reverse the district court’s initial

conclusion regarding the 95USP. Because that con-

clusion formed the basis for the other two decisions,

those decisions are likewise reversed.

I. BACKGROUND

{3} The record in these consolidated cases is quite

extensive and involves several thousand pages of

record. With this in mind, we will summarize many

of the basic facts in chronological order and then

incorporate specific facts into the discussion of the

issues as necessary.

A. Development of the 81USP

{4} The City’s Comprehensive Plan designated the

Uptown Sector as one of several urban centers in the

City. The Uptown Sector is located in the northeast

section of Albuquerque, approximately 6.5 miles from

the downtown area. It contains more than 2 million

square feet of retail space, primarily in the two

84a

regional malls, Winrock Center and Coronado Mall.

In addition, the area contains 1.9 million square feet

of office space, or 23 percent of the total office space

in Albuquerque. The area provides the highest

concentration of retail and office uses outside of

downtown.

{5} An urban center is described as an area con-

taining the highest densities and the tallest and most

massive structures. It is intended to concentrate a

wide range of community activities and intense land

uses for greater efficiency, stability, image, and

diversity and for a positive effect on the urban form,

environmental quality, and the transportation net-

work. Albuquerque Bernalillo County Comprehensive

Plan (Comprehensive Plan) at 15 (1988, amended

1991). The goal of an urban center is “to create

specially designed concentrations of high-density

mixed land use and social/economic activities which

reduce urban sprawl, auto travel needs, and service

costs, and which enhance the urban experience.” Jd.

at 69.

{6} In 1981, the City implemented the 81USP. It

defined the area governed by the plan and set out the

governing concepts for development in the area. Part

of the plan dealt with traffic and transportation in

the area, as well as specifically contemplating the

construction of a loop road located in roughly the

center of the sector. Excluding roads, the Uptown

Sector covers approximately 460 acres. Under the

81USP, the majority of the Uptown Sector was zoned

SU-3, the periphery was zoned SU-2, and the single-

family homes along San Pedro Drive were zoned R-1

to protect the existing residential uses. These zoning

classifications were not changed in the 95USP. See

map of Uptown Sector Development Plan Parcel

85a

Zoning (Appendix A) and map of Uptown Sector

outlining inner core surrounded by Loop Road

(Appendix B). SU-3 zoning provides suitable sites for

high-intensity mixed uses-commercial, office, service,

and residential. SU-2 provides suitable sites for a

low-to medium-intensity mixture of office, service,

institutional, and residential uses as a transition

area between the core of the urban sector center and

the surrounding low-density residential uses. The

81USP contained specific standards for site develop-

ment plans in the SU-2 and SU-3 zones and required

site development plan approval by the City Planner

and the Environmental Planning Commission. The

81USP did not mandate development densities or

limit the amount of retail use in a development and

did not impose structured parking requirements. The

81USP did, however, repeatedly refer to pedestrian-

friendly landscaping, open space, and building orien-

tation within the center of the Uptown Sector, in

accordance with the City’s Comprehensive Plan.

According to the Comprehensive Plan, Uptown is one

of several urban centers; an urban center is defined

as having a concentration of contiguous uses that

include the highest densities and tallest and most

massive buildings, providing a unique sense of place.

{7} From 1981 to 1988, there were minor amend-

ments to the original 81USP, none of which affected

the uses delineated in the original plan. Accordingly,

we refer to the 1981 Uptown Sector Plan, as amended

through 1988, as the 81USP. Review of the 81USP

for content revision began in 1989; in March 1993,

the revisions began in earnest. In March 1994, the

first draft of the revisions to the 81USP was distri-

buted to various agencies for comment.

86a

B. First Two Site Development Plans

{8} ACP is a Texas general partnership whose prin-

cipal partner is Albuquerque Uptown Partnership,

another Texas general partnership. At all times

material in this case, ACP was the leaseholder under

a long-term ground lease with the Archdiocese of

Santa Fe of the old St. Pius High School site, con-

sisting of approximately 28 acres (28-acre parcel)

located at the northeast corner of Louisiana Blvd. NE

and Indian School Rd. NE, in the center of Albuquer-

que’s Uptown Sector. The western 19.3 acres of the

28-acre parcel are located in the SU-3 zone, and the

eastern 8.7 acres are located in the SU-2 zone. In

1987, ACP submitted a site development plan under

the 81USP, consisting of a hotel, multistory office

buildings, retail facilities, and a 7-acre arboretum.

This proposed development included almost 1.3 mil-

lion square feet in office space, 121,323 square feet

dedicated to retail, and a 400-room hotel. The plan

was approved by the City but was never built.

{9} The 28-acre parcel remained undeveloped until

1991, when ACP decided to sell its leasehold. ACP

selected Opus Southwest Corporation (Opus) to

assume development of the property. Opus proposed

either to purchase or to lease the property if Opus

could obtain approval of its site development plan. In

June 1994, Opus submitted a site development plan

for a 28-acre low-density “big box” retail shopping

center. Because the site development plan included

property in the SU-2 zone, Opus also requested a

zone map amendment, as well as an amendment to

the 81USP. The public strongly opposed the plan, and

Opus withdrew it on August 31, 1994. The opposition

was based on differing views of the type of develop-

ment that was appropriate for the Uptown Sector:

87a

the suburban nature of the Opus plan conflicted with

the expectation of most of the surrounding property

owners that development of undeveloped land in the

center of the Uptown Sector would be urban in cha-

racter. The opposition became public; the negative

reaction of the surrounding property owners to the

Opus site development plan was reported by at least

one newspaper, and a number of letters criticizing

the project were sent to the planning department, one

of which was copied to the Mayor and councilors.

C. Final Site Development Plan and Development

of the 9S5USP

{10} Soon after Opus withdrew its application, in

mid-September 1994, the City passed Memorial M7-

1994, requesting a comprehensive public review and

revision to the 81USP. The City stated that it was

desirous of fulfilling the vision of the plan, observed

that the 81USP was in need of significant revision

and strengthening, and requested that the planning

department present its “plan-amendment recommen-

dations and a record of the public review” of the

81USP to the City’s Environmental Planning Com-

mission (EPC) for consideration by the end of April

1995.

(11) On September 30, 1994, two weeks after passage

of M7-1994, Opus submitted a second application,

this time for development of a smaller, 17.9-acre low-

density “big box” project. The project was to be

located entirely in the SU-3 zone, so no amendments

to the zoning map or sector plan were requested. See

preliminary site plan (Appendix C).

(12) At this point, events follow two concurrent

tracks: Opus focused its energy on obtaining site

approval for the smaller development under an

88a

unrevised 81USP, while the planning department

was obtaining public input, arranging for studies to

be conducted, scheduling public hearings, and

working on revising the 81USP as per the terms of

M7-1994. The following is a summary of these

activities.

{13} A public workshop on Uptown Sector issues was

presented for developers, landowners, businesses,

and neighborhood leaders by the planning depart-

ment in early November 1994; the department thus

complied with the request for “comprehensive public

review,” as contained in M7-1994. The workshop was

attended by about seventy-five people and covered

numerous development issues, including mixed uses,

evolving market demand and conditions, transporta-

tion, air-quality maintenance, and population trends,

among others. The idea of identifying an intense

urban core inside Loop Road was discussed, as was

the use of a floor area ratio (FAR). “FAR” is defined

as the leasable floor space divided by the site’s square

footage. Participants considered other related issues,

such as balancing retail use, proposing internalized

parking, encouraging evening activity, and improving

transportation management. Information from this

meeting was considered by the City in its revision of

the 81USP.

{14} The Opus site plan had been originally set for

a hearing in November before the City’s EPC.

Because Opus wanted to revise the site plan, based

on agency and staff comments, Opus agreed to a

deferral of that hearing to the January EPC meeting.

Opus’s revised site plan (Opus site plan) was referred

to the EPC for review on January 1995. At the

hearing on January 12, 1995, the EPC conducted a

lengthy discussion regarding whether the Opus site

89a

plan should be deferred, pending revision of the

8iUSP. The EPC ultimately decided to continue the

hearing until the January 26, 1995, meeting. At this

meeting, the EPC was informed that the City was

considering a moratorium on development in the

Uptown Sector, pending revision to the sector plan.

Based on that information, the EPC deferred hearing

Opus’s development plan until February 9. The City

Council was concerned that development in the

Uptown Sector during the pending review and

approval of amendments to the 81USP might be

inconsistent or in conflict with the proposed

revisions; therefore, on February 6, the City Council

passed R-187. This resolution placed a four-month

moratorium on all development within the Uptown

Sector. On February 9, 1995, the EPC deferred

hearing Opus’s development plan until June, after the

end of the moratorium. There was no appeal of the

imposition of the moratorium.

{15} In February 1995, the planning department

used a fast-track schedule with specific deadlines to

prepare information necessary to evaluate proposed

revisions to the 81USP. This information included a

traffic impact analysis, an air quality and building

intensity analysis, and a travel demand management

scheme. By March 2, 1995, the revised plan was

distributed for review. The focus of the revised plan

was to quantify the policy set forth in the 81USP so

that a true urban center would be sure to result. The

amendments to which ACP objected were related to

the additional regulations for an area inside the Loop

Road, referred to as an intense urban core (intense

core). Although the zoning designation remained SU-

3, development in the intense core would require a

minimum FAR of .7 and a maximum FAR of 1.5. A

FAR of .7 requires that the leasable floor space be at

90a

least 70 percent of the site’s total square footage. A

high FAR requires building up with very little park-

ing space. Therefore, development would have to be

predominantly office or other high-density use, with

only specialty retail and commercial on the ground

floor. All parking would be required to be in etruc-

tures, except for a smal] number of spaces serving the

ground-level establishments.

{16} The proposed revisions established a minimum

FAR of .3 outside the intense core and a maximum of

1.0, thus allowing shopping centers and other retail

uses. The amendments also required a Transporta-

tion Management Organization of Uptown, by which

employers were to implement strategies to reduce

single-occupant car trips to the area. Also included

were recommendations regarding making the area

more pedestrian friendly. The Albuquerque planning

department made these recommendations on the

bases that development in the area was becoming

suburban and that the 81USP needed quantification

in order for the City to maintain the policy objectives

in urban areas of intense mixed use.

{17) The amendments were set for a series of public

hearings before the EPC, the Land Use Planning and

Zoning Committee (LUPZ), and the City Council.

Through all of the public hearings, ACP and Opus

were vocal and vehement in their objection to the

amendments, which they argued effected a down-

zoning of their property. The public, representatives

of neighborhood associations, and others provided

testimony for and against all or part of the proposed

revisions. Typically, the public viewed the proposed

revisions to the 81USP as a way to “create a new

sense of place, and protect [their] neighborhood|s)

from suburban sprawl.” One proponent was con-

9la

cerned about the suburban sprawl] to be created by

the type of project proposed by Opus, which was

described as “a [nineteen-Jacre site, [fifteen] of

[which] will be parking.” Generally, the neighborhood

associations urged a follow-through with the vision of

Uptown as a true urban center, and they opined that

this would be the long-term solution to transporta-

tion and air quality concerns.

{18} The first public hearing on the proposed revi-

sions was held on April 13, 1995, before the EPC.

After the staff presentation, the EPC heard

comments from proponents and opponents of the

proposal. On May 10, 1995, the LUPZ met and took

testimony both from the planning department and

the public. On May 24, 1995, a joint meeting of the

EPC and the LUPZ was held. At that time, traffic,

transportation, and air quality studies were reported.

Issues that had been raised by the public at the April

EPC hearing and the May 10 LUPZ meeting were

addressed by a supplemental staff report presented

at the joint meeting.

{19} At the conclusion of the joint meeting, the EPC

continued with its meeting and voted 5-3 to recom-

mend against the amendments. In the notification of

its decision to LUPZ, the EPC found that the air

pollution problem in the Uptown area would not be

significantly affected by the land uses advocated,

especially without a citywide traffic management

plan. It also pointed out that there was testimony

from developers suggesting that the FAR minimums

and maximums would make development uneco-

nomical, as evidenced by development in the down-

town urban sector with similar FARs. Finally, the

EPC found that the proposed amendment to the

81USP did not comply with Resolution 270-1980,

92a

which sets forth certain requirements that must be

met in cases of zone changes. The text of this resolu-

tion is contained in paragraph 64 herein. The EPC

agreed that the sector plan needed revising but stated

that the revisions proposed were unsatisfactory.

{20} The LUPZ met on May 30, 1995, and continued

discussion on the amendments to the plan. The tes-

timony at this hearing specifically addressed the

findings on which the EPC based its recommendation

not to adopt the revised plan. As to air pollution, a

planner with the Environmental Health Division

addressed the differences between the Parson’s air

quality study done for the City and the analysis of

the data by JHK & Associates (JHK) that was per-

formed for ACP. In addressing JHK’s position that

there was no meaningful difference in air quality

between high-density office use and retail, the planner

explained that the JHK conclusion was based on

selected data only and tha

This text is long and has been trimmed here. Open the source document for the complete record.