# Appendix — City Council of Albuquerque v. Albuquerque Commons Partnership

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1223%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 936

## Text

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ber 30, 2008, is withdrawn, and the following opinion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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1223%3A2. Public record. Not legal advice.