New Mexico Case Law

Petitioner-Appellee, v. CITY COUNCIL OF THE CITY OF
ALBUQUERQUE, Respondent-Appellant. Docket No. 24,026,
consolidated with No. 24,027 and No. 24,042. Court of
Appeals of New Mexico. Filing Date: April 26, 2006.
Certiorari Granted November 29, 2006. Revised December 19,

Appeal From the District Court of Bernalillo County Susan M.
Conway and William F. Lang, District Judges.

Certiorari Granted, No. 29,791, November 29, 2006.

Metter & LeCuyer, P.C., Stephen T. LeCuyer, Albuquerque, NM.

Bryan & Flynn-O’Brien, George R. Pat Bryan III, Timothy V.
Flynn-O’Brien, Albuquerque, NM, for Appellee.

Robert M. White, City Attorney, Mark Hirsch, Assistant City
Attorney, Albuquerque, NM.

Miller Stratvert P.A., Alice T. Lorenz, Albuquerque, NM,
Campbell & Wells, P.A., John S. Campbell, Albuquerque, NM.

Robinson & Cole, LLP, Dwight H. Merriam, James A. Wade,
Gregory W. McCracken, Hartford, CT, for Appellant.

Cassutt, Hays & Friedman P.A., Kenneth J. Cassutt, Santa Fe,

Garvey, Schubert & Barer, Edward J. Sullivan, Carrie
Richter, Portland, OR, for Amicus Curiae American Planning

Anita P. Miller, Attorney at Law, P.C., Anita P. Miller,
Albuquerque, NM.

Noble & Wickersham, LLP, Jay Wickersham, Cambridge, MA, for
Amicus Curiae Boston Society of Architects.

Keleher & McLeod, P.A., Richard L. Alvidrez, Albuquerque,
NM, for Amicus Curiae Greater Albuquerque Chamber of

New Mexico Municipal League, Inc., Randall D. Van Vleck,
Santa Fe, NM.

Freilich, Leitner & Carlisle, Robert H. Freilich, Robin A.
Kramer, Elisa L. Paster, Kansas City, MO, for Amici Curiae
New Mexico Municipal League, National League of Cities, and
International Municipal Lawyers Association.


{1} On motion for rehearing, the opinion filed December 9,
2005, is withdrawn, and the following opinion is
substituted in its place. Additionally, we append an order
on rehearing, in which we address four issues argued in the
motion for rehearing that were not developed in the
original opinion, were not addressed, or need clarification.
The motion is otherwise denied.

{2} This case is before us on the City Council of the City
of Albuquerque’s (City or City Council) appeal from a jury
verdict and on writs of certiorari that we granted to
review district court appeals of two administrative
decisions, all relating to the City’s 1995 amendment of the
Uptown Sector Plan (95USP). The district court determined
that the amendment targeted the property of Albuquerque
Commons Partnership (ACP) and resulted in a downzoning of
that property. The district court ordered the City to
consider ACP’s development plan under the previous sector
plan, the 1981 Uptown Sector Plan (81USP). Upon remand, the
City considered the development plan under the 81USP and
denied the development. ACP appealed that denial to the
district court. The court determined that the City had not
reviewed the development as ordered and concluded that the
development had to be approved. In the meantime, ACP’s
claim for damages for violation of constitutional rights,
resulting in a taking and violation of civil rights in
connection with the 95USP, proceeded to a jury trial. The
jury found for ACP and awarded damages of $8,349,095. We
reverse the district court’s initial conclusion regarding
the 95USP. Because that conclusion formed the basis for the
other two decisions, those decisions are likewise reversed.


{3} The record in these consolidated cases is quite
extensive and involves several thousand pages of record.
With this in mind, we will summarize many of the basic
facts in chronological order and then incorporate specific
facts into the discussion of the issues as necessary.

A.Development of the 81USP

{4} The City’s Comprehensive Plan designated the Uptown
Sector as one of several urban centers in the City. The
Uptown Sector is located in the northeast section of
Albuquerque, approximately 6.5 miles from the downtown
area. It contains more than 2 million square feet of retail
space, primarily in the two regional malls, Winrock Center
and Coronado Mall. In addition, the area contains 1.9
million square feet of office space, or 23 percent of the
total office space in Albuquerque. The area provides the
highest concentration of retail and office uses outside of

{5} An urban center is described as an area containing the
highest densities and the tallest and most massive
structures. It is intended to concentrate a wide range of
community activities and intense land uses for greater
efficiency, stability, image, and diversity and for a
positive effect on the urban form, environmental quality,
and the transportation network. Albuquerque Bernalillo
County Comprehensive Plan (Comprehensive Plan) at 15 (1988,
amended 1991). The goal of an urban center is “to create
specially designed concentrations of high-density mixed
land use and social/economic activities which reduce urban
sprawl, auto travel needs, and service costs, and which
enhance the urban experience.” Id. at 69.

{6} In 1981, the City implemented the 81USP. It defined the
area governed by the plan and set out the governing
concepts for development in the area. Part of the plan
dealt with traffic and transportation in the area, as well
as specifically contemplating the construction of a loop
road located in roughly the center of the sector. Excluding
roads, the Uptown Sector covers approximately 460 acres.
Under the 81USP, the majority of the Uptown Sector was
zoned SU-3, the periphery was zoned SU-2, and the
single-family homes along San Pedro Drive were zoned R-1 to
protect the existing residential uses. These zoning
classifications were not changed in the 95USP. See map of
Uptown Sector Development Plan Parcel Zoning (Appendix A)
and map of Uptown Sector outlining inner core surrounded by
Loop Road (Appendix B). SU-3 zoning provides suitable sites
for high-intensity mixed uses — commercial, office,
service, and residential. SU-2 provides suitable sites for
a low-to medium-intensity mixture of office, service,
institutional, and residential uses as a transition area
between the core of the urban sector center and the
surrounding low-density residential uses. The 81USP
contained specific standards for site development plans in
the SU-2 and SU-3 zones and required site development plan
approval by the City Planner and the Environmental Planning
Commission. The 81USP did not mandate development densities
or limit the amount of retail use in a development and did
not impose structured parking requirements. The 81USP did,
however, repeatedly refer to pedestrian-friendly
landscaping, open space, and building orientation within
the center of the Uptown Sector, in accordance with the
City’s Comprehensive Plan. According to the Comprehensive
Plan, Uptown is one of several urban centers; an urban
center is defined as having a concentration of contiguous
uses that include the highest densities and tallest and
most massive buildings, providing a unique sense of place.

{7} From 1981 to 1988, there were minor amendments to the
original 81USP, none of which affected the uses delineated
in the original plan. Accordingly, we refer to the 1981
Uptown Sector Plan, as amended through 1988, as the 81USP.
Review of the 81USP for content revision began in 1989; in
March 1993, the revisions began in earnest. In March 1994,
the first draft of the revisions to the 81USP was
distributed to various agencies for comment.

B.First Two Site Development Plans

{8} ACP is a Texas general partnership whose principal
partner is Albuquerque Uptown Partnership, another Texas
general partnership. At all times material in this case,
ACP was the leaseholder under a long-term ground lease with
the Archdiocese of Santa Fe of the old St. Pius High School
site, consisting of approximately 28 acres (28-acre parcel)
located at the northeast corner of Louisiana Blvd. NE and
Indian School Rd. NE, in the center of Albuquerque’s Uptown
Sector. The western 19.3 acres of the 28-acre parcel are
located in the SU-3 zone, and the eastern 8.7 acres are
located in the SU-2 zone. In 1987, ACP submitted a site
development plan under the 81USP, consisting of a hotel,
multistory office buildings, retail facilities, and a
7-acre arboretum. This proposed development included almost
1.3 million square feet in office space, 121,323 square
feet dedicated to retail, and a 400-room hotel. The plan
was approved by the City but was never built.

{9} The 28-acre parcel remained undeveloped until 1991,
when ACP decided to sell its leasehold. ACP selected Opus
Southwest Corporation (Opus) to assume development of the
property. Opus proposed either to purchase or to lease the
property if Opus could obtain approval of its site
development plan. In June 1994, Opus submitted a site
development plan for a 28-acre low-density “big box” retail
shopping center. Because the site development plan included
property in the SU-2 zone, Opus also requested a zone map
amendment, as well as an amendment to the 81USP. The public
strongly opposed the plan, and Opus withdrew it on August
31, 1994. The opposition was based on differing views of
the type of development that was appropriate for the Uptown
Sector: the suburban nature of the Opus plan conflicted
with the expectation of most of the surrounding property
owners that development of undeveloped land in the center
of the Uptown Sector would be urban in character. The
opposition became public; the negative reaction of the
surrounding property owners to the Opus site development
plan was reported by at least one newspaper, and a number
of letters criticizing the project were sent to the
planning department, one of which was copied to the Mayor
and councilors.

C.Final Site Development Plan and Development of the 95USP

{10} Soon after Opus withdrew its application, in
mid-September 1994, the City passed Memorial M7-1994,
requesting a comprehensive public review and revision to
the 81USP. The City stated that it was desirous of
fulfilling the vision of the plan, observed that the 81USP
was in need of significant revision and strengthening, and
requested that the planning department present its
“plan-amendment recommendations and a record of the public
review” of the 81USP to the City’s Environmental Planning
Commission (EPC) for consideration by the end of April 1995.

{11} On September 30, 1994, two weeks after passage of
M7-1994, Opus submitted a second application, this time for
development of a smaller, 17.9-acre low-density “big box”
project. The project was to be located entirely in the SU-3
zone, so no amendments to the zoning map or sector plan
were requested. See preliminary site plan (Appendix C).

{12} At this point, events follow two concurrent tracks:
Opus focused its energy on obtaining site approval for the
smaller development under an unrevised 81USP, while the
planning department was obtaining public input, arranging
for studies to be conducted, scheduling public hearings,
and working on revising the 81USP as per the terms of
M7-1994. The following is a summary of these activities.

{13} A public workshop on Uptown Sector issues was
presented for developers, landowners, businesses, and
neighborhood leaders by the planning department in early
November 1994; the department thus complied with the
request for “comprehensive public review,” as contained in
M7-1994. The workshop was attended by about seventy-five
people and covered numerous development issues, including
mixed uses, evolving market demand and conditions,
transportation, air-quality maintenance, and population
trends, among others. The idea of identifying an intense
urban core inside Loop Road was discussed, as was the use of
a floor area ratio (FAR). “FAR” is defined as the leasable
floor space divided by the site’s square footage.
Participants considered other related issues, such as
balancing retail use, proposing internalized parking,
encouraging evening activity, and improving transportation
management. Information from this meeting was considered by
the City in its revision of the 81USP.

{14} The Opus site plan had been originally set for a
hearing in November before the City’s EPC. Because Opus
wanted to revise the site plan, based on agency and staff
comments, Opus agreed to a deferral of that hearing to the
January EPC meeting. Opus’s revised site plan (Opus site
plan) was referred to the EPC for review on January 1995. At
the hearing on January 12, 1995, the EPC conducted a
lengthy discussion regarding whether the Opus site plan
should be deferred, pending revision of the 81USP. The EPC
ultimately decided to continue the hearing until the
January 26, 1995, meeting. At this meeting, the EPC was
informed that the City was considering a moratorium on
development in the Uptown Sector, pending revision to the
sector plan. Based on that information, the EPC deferred
hearing Opus’s development plan until February 9. The City
Council was concerned that development in the Uptown Sector
during the pending review and approval of amendments to the
81USP might be inconsistent or in conflict with the
proposed revisions; therefore, on February 6, the City
Council passed R-187. This resolution placed a four-month
moratorium on all development within the Uptown Sector. On
February 9, 1995, the EPC deferred hearing Opus’s
development plan until June, after the end of the
moratorium. There was no appeal of the imposition of the

{15} In February 1995, the planning department used a
fast-track schedule with specific deadlines to prepare
information necessary to evaluate proposed revisions to the
81USP. This information included a traffic impact analysis,
an air quality and building intensity analysis, and a
travel demand management scheme. By March 2, 1995, the
revised plan was distributed for review. The focus of the
revised plan was to quantify the policy set forth in the
81USP so that a true urban center would be sure to result.
The amendments to which ACP objected were related to the
additional regulations for an area inside the Loop Road,
referred to as an intense urban core (intense core).
Although the zoning designation remained SU-3, development
in the intense core would require a minimum FAR of .7 and a
maximum FAR of 1.5. A FAR of .7 requires that the leasable
floor space be at least 70 percent of the site’s total
square footage. A high FAR requires building up with very
little parking space. Therefore, development would have to
be predominantly office or other high-density use, with
only specialty retail and commercial on the ground floor.
All parking would be required to be in structures, except
for a small number of spaces serving the ground-level

{16} The proposed revisions established a minimum FAR of .3
outside the intense core and a maximum of 1.0, thus
allowing shopping centers and other retail uses. The
amendments also required a Transportation Management
Organization of Uptown, by which employers were to
implement strategies to reduce single-occupant car trips to
the area. Also included were recommendations regarding
making the area more pedestrian friendly. The Albuquerque
planning department made these recommendations on the bases
that development in the area was becoming suburban and that
the 81USP needed quantification in order for the City to
maintain the policy objectives in urban areas of intense
mixed use.

{17} The amendments were set for a series of public
hearings before the EPC, the Land Use Planning and Zoning
Committee (LUPZ), and the City Council. Through all of the
public hearings, ACP and Opus were vocal and vehement in
their objection to the amendments, which they argued
effected a downzoning of their property. The public,
representatives of neighborhood associations, and others
provided testimony for and against all or part of the
proposed revisions. Typically, the public viewed the
proposed revisions to the 81USP as a way to “create a new
sense of place, and protect [their] neighborhood[s] from
suburban sprawl.” One proponent was concerned about the
suburban sprawl to be created by the type of project
proposed by Opus, which was described as “a [nineteen-]acre
site, [fifteen] of [which] will be parking.” Generally, the
neighborhood associations urged a follow-through with the
vision of Uptown as a true urban center, and they opined
that this would be the long-term solution to transportation
and air quality concerns.

{18} The first public hearing on the proposed revisions was
held on April 13, 1995, before the EPC. After the staff
presentation, the EPC heard comments from proponents and
opponents of the proposal. On May 10, 1995, the LUPZ met
and took testimony both from the planning department and
the public. On May 24, 1995, a joint meeting of the EPC and
the LUPZ was held. At that time, traffic, transportation,
and air quality studies were reported. Issues that had been
raised by the public at the April EPC hearing and the May
10 LUPZ meeting were addressed by a supplemental staff
report presented at the joint meeting.

{19} At the conclusion of the joint meeting, the EPC
continued with its meeting and voted 5-3 to recommend
against the amendments. In the notification of its decision
to LUPZ, the EPC found that the air pollution problem in
the Uptown area would not be significantly affected by the
land uses advocated, especially without a citywide traffic
management plan. It also pointed out that there was
testimony from developers suggesting that the FAR minimums
and maximums would make development uneconomical, as
evidenced by development in the downtown urban sector with
similar FARs. Finally, the EPC found that the proposed
amendment to the 81USP did not comply with Resolution
270-1980, which sets forth certain requirements that must
be met in cases of zone changes. The text of this
resolution is contained in paragraph 64 herein. The EPC
agreed that the sector plan needed revising but stated that
the revisions proposed were unsatisfactory.

{20} The LUPZ met on May 30, 1995, and continued discussion
on the amendments to the plan. The testimony at this
hearing specifically addressed the findings on which the
EPC based its recommendation not to adopt the revised plan.
As to air pollution, a planner with the Environmental
Health Division addressed the differences between the
Parson’s air quality study done for the City and the
analysis of the data by JHK & Associates (JHK) that was
performed for ACP. In addressing JHK’s position that there
was no meaningful difference in air quality between
high-density office use and retail, the planner explained
that the JHK conclusion was based on selected data only and
that when all the data are used, mixed uses, together with
any amount of transportation management strategies, will
result in fewer exceedances of the carbon monoxide

{21} Also at this meeting, there was testimony from three
people with experience in the real estate or financial
field, who provided information regarding office vacancy
rates in Uptown and who were of the opinion that the vacant
land in the intense core could develop under the 95USP. One
of the witnesses represented an owner of vacant land in the
intense core.

{22} As to the need to follow the requirements of
Resolution 270-1980, the city attorney explained that in
his opinion, the changes to the sector plan were not map
changes and that the resolution therefore did not apply. At
the close of the testimony, one of the councilors observed
that the problems inherent in the findings of the EPC had
been “significantly addressed” during the meeting of the
LUPZ. At the conclusion of the LUPZ hearing, the committee
voted to send the revised sector plan on to the full City

{23} The City Council met on June 5, 1995, to hear the
matter. At that time, a number of amendments were proposed
that had apparently been the result of negotiation among
councilors, their constituents in the neighborhoods
surrounding the Uptown Sector, and Uptown Sector
businesses. Because the public had not been given the
amendments prior to the meeting and was unprepared to
discuss the amendments, the City Council deferred final
hearing on the matter for about two weeks.

{24} On June 19, 1995, after adoption of several amendments
to the revised sector plan and extensive argument both for
and against the plan, the City Council voted 7-0 in favor
of the revisions to the 81USP. In its resolution adopting
the 95USP (Resolution 94-1995), the City Council made a
number of findings, including that the plan’s policy
objectives needed to be quantitatively defined. It found
that Uptown, as an urban center, affects the entire City
and that Uptown’s land use, transportation, and development
have an impact on the safety and air quality of the entire
metropolitan area.

{25} On July 6, 1995, the EPC voted to defer indefinitely
Opus’s site plan because it did not comply with the 95USP.
Thereafter, ACP filed a petition in district court for
review of the approval and adoption of the 95USP. ACP’s
complaint in district court sought review of the adoption
of the 95USP and review of the City’s refusal to hear the
Opus site plan under the 81USP. That complaint was later
amended to include claims for damages for violation of
constitutional rights, resulting in a taking of property
and violation of civil rights. The district court conducted
the administrative review of the adoption of the 95USP
first and, for the reasons detailed in paragraph 32 herein,
concluded that the intense core provisions of the 95USP
could not be applied to the Opus site plan. The district
court therefore remanded the matter to the City to consider
the Opus site plan under the 81USP, the previous sector

{26} The EPC heard the plan in November 1999 and denied it
on the basis that it did not create the type of urban place
that the master plan had intended. ACP appealed to the City
Council, which agreed with the EPC and voted to deny the
development. An appeal to district court resulted in a
determination that the site plan did in fact comply with
the 81USP, and the district court ordered that the plan be

{27} The City filed a petition for writ of certiorari from
that administrative decision. We denied the writ, based on
our determination that the entire case had not yet been
disposed of and that the appeal was premature. Albuquerque
Commons P’ship v. City of Albuquerque, 2003-NMCA-022,
§ 1, 133 N.M. 226, 62 P.3d 317.

{28} In February 2003, a jury trial was conducted on ACP’s
claims of constitutional taking and violation of due
process. The claims were based on the City’s adoption of
the 95USP and its application to ACP’s property. 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.
Finding that ACP’s due process rights were violated, the
jury awarded damages.

{29} After judgment on the verdict, the City filed two
petitions for writ of certiorari with regard to the two
administrative decisions on the adoption and application of
the 95USP. The City also filed a notice of appeal from the
jury verdict. All three cases are consolidated.