Daily Development for Tuesday, August 24, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND PLANNING; PROCEDURE; APPEAL; JUDICIAL DEFERENCE: City government's interpretation of its own zoning ordinance is not entitled to judicial deference.

 High Ridge Hinkle Joint Venture v. City of Albuquerque, 970 P.2d 599 (N.M. 1998).

A property owner sought to build a miniature golf course and arcade. The City of Albuquerque denied his request based on an ordinance that permitted "[o]utside storage or activity" on the site. Albuquerque contended that the ordinance permitted only outside storage or activities related to outside storage, while the property owner argued that the ordinance permitted outside storage or other outside activities. The New Mexico Court of Appeals held that Albuquerque's interpretation of its own zoning ordinance was entitled to deference, and affirmed Albuquerque's zoning decision.

The New Mexico Supreme Court reversed. Ordinary principles of statutory construction apply to municipal ordinances, and the plain meaning of the words "outside storage or activity" is that "outside" modifies both "storage" and "activity." Although a municipality's long-standing interpretation of its own ordinance is given persuasive weight, in this case Albuquerque did not formally construe the ordinance until this lawsuit was filed. In fact, the history of the ordinance suggested that it previously had been interpreted to permit outside non-storage activities.

The doctrine of administrative gloss also supported the New Mexico Supreme Court's decision. That doctrine holds that when a zoning ordinance has been interpreted in a certain manner for a period of years without legislative interference, the municipality may not change the policy without going through the legislative process. In this case, the intent of the ordinance was to permit outside non-storage activities, and Albuquerque improperly attempted to amend the ordinance outside of the legislative process by offering a new interpretation of it. Comment: Note that the court denied deference to the municipality's interpretaton of its own ordinance. Where the ordinance established an area for discretion, it is likely that the court still would treat with deference the discretionary determination of whether certain statutory standards had been met.

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