This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 IN THE MATTER OF THE PETITION 2 FOR A HEARING ON THE MERITS 3 REGARDING AIR QUALITY PERMIT NO. 1677-M2 4 ANDY CARRASCO, PAT TOLEDO, 5 and DEMPSEY POWER, 6 Petitioners-Appellants, 7

v. NO. 33,269 8 THE CITY OF ALBUQUERQUE and 9 SMITH’S FOOD & DRUG CENTERS, INC., 10 Respondents-Appellees. 11 APPEAL FROM THE ALBUQUERQUE/BERNALILLO COUNTY AIR 12 QUALITY CONTROL BOARD 13 Felicia L. Orth, Hearing Officer 14 Domenici Law Firm 15 Pete Domenici, Jr. 16 Lorraine Hollingsworth 17 Albuquerque, NM 18 for Appellants 19 City of Albuquerque 20 David Tourek, City Attorney 21 Carol M. Parker, Assistant City Attorney 22 Donna J. Griffin, Assistant City Attorney 23 Albuquerque, NM 242 ABC-AQCB 1 Felicia L. Orth 2 Albuquerque, NM 3 for Appellee City of Albuquerque 4 Sutin, Thayer & Browne, P.C. 5 Frank C. Salazar 6 Timothy J. Atler 7 Albuquerque, NM 8 for Appellee Smith’s Food & Drug Centers, Inc. 9 MEMORANDUM OPINION 10 FRY, Judge. 11
{1} This case is an administrative app eal from the Albuquerque-Bernalillo County 12 Air Quality Control Board’s (the Board) di smissal of Petitioners’ petition for a hearing 13 based on lack of standing. Petitioners were challenging Smith’s Food and Drug 14 Centers, Inc.’s permit modification request that would allow it to increase the amount 15 of fuel it dispensed at a filling station located near the intersection of Central and 16 Tramway in Albuquerque, N.M. Petitioners ar gue that the Board erred in dismissing 17 their petition because, in regard to Pe titioners Toledo and Carrasco, they were 18 adversely affected by the City of Albuquerque Environmental Health Department’s 19 (EHD) refusal to hold a public hearing, and, in regard to Petiti oner Power, his failure 20 to participate in the permitting action was dueto inadequate notice. We conclude that 21 the Board properly determined that Petitioner Power did not have standing to appeal 223 the issuance of the permit because he failed toshow that his failure to participate in 1 the permitting action was due to legally insu fficient notice. However, we conclude 2 that the Board erred in determining that Petitioners Toledo and Carrasco did not have 3 standing to appeal the EHD’s refusal to hold a public hearing. Accordingly, we 4 reverse in regard to Petitioners Toledo and Carrasc o and affirm in re gard to Petitioner 5
Power. 6 BACKGROUND 7
{2} Smith’s submitted an application to th e EHD to modify an existing air quality 8 permit to allow it to increase the amount of fuel it dispensed at the filling station at 9 issue. The EHD published notice of the permit modification request in the legal 10 section of the Albuquerque Journal and also sent notice to local neighborhood 11 associations in the area surrounding the filli ng station. The notice provided that the 12 public had the opportunity to comment on the requested modification until April 24, 13 2013. 14
{3} Petitioners Toledo and Carra sco became aware of Smith ’s permit modification 15 request and submitted written objections to the modification. They also requested that 16 a public hearing be held on the permit modifi cation. In addition to Petitioners Toledo 17 and Carrasco’s comments, the EHD received a few questions from the local 18 neighborhood associations. The EHD answer ed these questions, and no more action 194 was taken by these groups. Following the end of the comment period, the EHD 1 determined that there was not significant public interest in Smith’s permit 2 modification request and denied Petitioners Toledo and Carrasco’s request for a public 3 hearing. The EHD granted Smith’s permit modification request. 4
{4} The EHD notified Petitioners Toledo and Carrasco that because they 5 participated in the permitting action, they were entitled to petition for a hearing before 6 the Board to review the EHD’s decision to grant the permit modification. Petitioners 7 filed a petition—including Petitioner Power, who did not participate in the initial 8 permitting action, as a petitioner—and alleged that the permit modification was issued 9 “without providing adequate notice and w ithout allowing the public the opportunity 10 to be heard at a public hearing prior to [its] issuance.” Petitioners Toledo and 11 Carrasco further alleged that they were “adversely affected by the permitting action 12 because they are members of the Albuquerque community who have an important 13 interest in ensuring that the modifications to Smith’s permit do not adversely affect 14 the quality of life in Albuquerque.” Petiti oner Power alleged that he was prevented 15 from participating in the permitting action due to inadequate notice. Petitioners 16 requested that the Board set aside the permit modification due to the EHD’s failure to 17 provide adequate notice and hold a public hearing. 185 {5} The Board set a hearing on the merits of Petitioners’ petition. Petitioners filed 1 notice with the Board limiting the issues to be heard to whether the EHD provided 2 adequate notice and whether it erred in refusing to hold a public hearing. Prior to the 3 hearing, Smith’s filed a motion to dismiss, arguing that the Petitioners lacked standing 4 to challenge EHD’s grant of the permit m odification. The Board held a hearing on 5 Smith’s motion to dismiss nearly two week s before the hearing scheduled for the 6 merits of the petition. The Board ultim ately determined that Petitioners lacked 7 standing because Petitioner Power did not participate in the permitting action and 8 Petitioners Toledo and Carrasco di d not show that they wereadversely affected by the 9 EHD’s actions. Petitioners now appeal. 10 DISCUSSION 11 Standard of Review 12
{6} This Court will set aside the Board’s action if the action is found to be “(1) 13 arbitrary, capricious, or an abuse of discretion; (2) not supported by substantial 14 evidence . . .; or (3) otherwise not in accordance with law.” NMSA 1978, § 74-2-9(C) 15 (1992). In this case, Petitioners argue thatthe Board incorrectlyapplied the law of 16 standing to dismiss their administrative appeal. We review whether a party has 17 standing de novo. Prot. & Advocacy Sys. v. City of Albuquerque , 2008-NMCA-149, 18 ¶ 17, 145 N.M. 156, 195 P.3d 1. 196 {7} “Standing is a judicially created doctrine designed to insure that only those with 1 a genuine and legitimate interest canparticipate in a proceeding.” Id. ¶ 18 (internal 2 quotation marks and citation omitted). Generally, to estab lish standing, litigants must 3 “allege three elements: (1) th ey are directly injured as a result of the action they seek 4 to challenge; (2) there is a causal relationship between th e injury and the challenged 5 conduct; and (3) the injury is likely to be redressed by a favorable decision.” ACLU 6 of N.M. v. City of Albuquerque , 2008-NMSC-045, ¶ 1, 144 N.M. 471, 188 P.3d 1222. 7
{8} We accept the material allegations of the petition as true and construe the 8 petition in favor of the complaining party. Prot. & Advocacy Sys. , 2008-NMCA-149, 9 ¶ 17. However, we are not limited to the allegations of the petition and may review 10 any supplementation to the petition by the petiti oner with affidavits or particularized 11 allegations of fact in order to determine whether standing exists. Id. If, after a review 12 of all materials of record, standing is not established, the petition must be dismissed. 13 Id. 14 Standing Under the Air Quality Control Act 15
{9} NMSA 1978, Section 74-2-7(H) (2003) , provides that “[a] person who 16 participated in a permitting action before th e department or the local agency and who 17 is adversely affected by such permitting ac tion may file a petition for hearing before 18 the environmental improvement board or th e local board.” The statute therefore 197 contains two prerequisites for seeking revi ew by the Board. First, the person must 1 have participated in the permitting action. Id. Second, the person must have been 2 adversely affected by the action. Id. We review Petitioners ’ arguments according to 3 these two requirements. We begin with Petitioner Power’s argument that inadequate 4 notice prevented him from participating inthe permitting action. We then consider 5 Petitioners Toledo and Carrasco’s argument that they were adversely affected by the 6 action. 7 Petitioner Power 8
{10} Petitioner Power argues that he was prevented from participating in the 9 permitting action because he did not receive notice of the permitting action. Petitioner 10 Power does not argue that the EHD’s notice of the permitting action was legally 11 insufficient under the then-applicable regul ation pertaining to the provision of public 12 notice. See 20.11.41.14(A)(3) NMAC (10/1/02) (re quiring that notice be published 13 “in a local newspaper of general circulation” and include “the name and address of the 14 applicant, location of the s ource, a brief description of the proposed construction or 15 modification, a summary of the estimated emissions and shall identify the manner in 16 which comments or evidence on the application may be submitted to the 17 Department”). In fact, Petitioners concededbelow in their answers to requests for 18 admissions that EHD’s notice complied with the regulation. Instead, Petitioner Power 198 argues that preventing people who did not receive notice from participating in an 1 appeal forecloses any opportunity to ch allenge the method inwhich notice was 2 provided. 3
{11} We are unpersuaded by Pe titioner Power’s argument. Participation in the 4 permitting action is a statutory prerequisite to appealing to the Board. Section 74-2- 5 7(H). The EHD is not tasked with ensuri ng that every person who might be affected 6 by the permitting action actually receive noti ce. And allowing ev ery person who does 7 not actually receive notice to appeal to the Board would obviate the statutory 8 requirement that the petitioner participated in the permitting action. Furthermore, it 9 was undisputed here that EHD complied withits regulation in providing notice to the 10 public. Accordingly, because Petitioner Po wer did not participate in the permitting 11 action, the Board correctly de termined that he did not have standing to challenge the 12 permit modification. 13 Petitioners Toledo and Carrasco 14
{12} Petitioners Toledo and Carra sco, who actually participated in the permitting 15 action, argue that they were adversely affected by the permitting action due to the 16 EHD’s failure to provide adequate public notice and hold a hearing prior to the 17 issuance of the permit modification. We have already decided that there is no viable 18 dispute regarding public notice. In regard to the EHD’s refusal to hold a public 199 hearing, Petitioners argue that the EHD’s action prevented them from presenting 1 comments and evidence on the proposed permit modification. 2
{13} In order to establish that one is adversely affected, the person must show that 3 the injury complained of is within the zoneof interests sought to be protected by the 4 statute at issue. N.M. Cattle Growers’ Ass’n v. N. M. Water Quality Control Comm’n , 5 2013-NMCA-046, ¶ 10, 299 P.3d 436, cert. quashed 2013-NMCERT-010, 313 P.3d 6 251. Thus, Petitioners’ argument implicates the first element of standing: whether 7 Petitioners have alleged an injury in fact. For this element, it has always been a 8 requirement that the litigant allege a direct in jury, even if the exte nt of that injury is 9 slight. ACLU, 2008-NMSC-045, ¶ 11. The injury must be actual or imminent. Id. 10 (“Rather, the litigant need only show that he is imminently threatened with injury, or 11 . . . that he is faced with a real risk of future injury, as a result of the challenged action 12 or statute.” (internal quotation marks and citations omitted)). A “general, 13 undifferentiated threat of a hypothe tical harm” will not suffice. Id. ¶ 18. A plaintiff 14 has standing to protect himself or herself against “injury as a result of unlawful 15 governmental action.” De Vargas Sav. & Loan Ass’ n of Santa Fe v. Campbell , 1975- 16 NMSC-026, ¶ 13, 87 N.M. 469, 535 P.2d 1320. 17
{14} As stated above, Petitioners argue that their injury was the denial by the EHD 18 of their request for a hearing. Respondent s, on the other hand, argue that Petitioners 1910 cannot establish standing because they cannot show that an increase in throughput (the 1 amount of fuel dispensed) would directly and concretely injure them. Respondents 2 further argue that Petitioners’ alleged injury is insufficient to establish standing 3 because the EHD properly exercised its di scretion in denying th eir request for a 4 hearing. See 20.11.41.14(B) NMAC (10/1/02) (stating that the EHD “shall hold a 5 public hearing if the director determines that there is significant public interest”). 6 Stated another way, Respondents argue that because the decision to grant a hearing 7 is discretionary, the denial of a request for such a hearing cannot, as a matter of law, 8 establish an invasion of a legally protected interest. 9
{15} We disagree with Respondents. Given th at Petitioners are only requesting the 10 Board to review whether the EHD’s refusal to hold a hearing was proper, the issue of 11 standing in regard to these Petitioners pres ents a relatively succinct procedural issue: 12 whether Petitioners were adversely affectedby the denial of their request for a 13 hearing. The determination of this issue doe s not require this Court to review whether 14 Petitioners would be adversel y affected by any alleged e nvironmental impacts of the 15 permit modification or whether the EHD properly exercised its discretion, the latter 16 being the exact issue Petitioners appealed to the Board. 17
{16} We therefore conclude that Petitioners had standing to request the Board to 18 review whether the EHD properly refuse d Petitioners’ request to holding a public 1911 hearing. It would be anomalous to concl ude that members of the public whose request 1 for a hearing was denied by the EHD were not “adversely affected” by that decision. 2 The Petitioners are members of the public that live within the EHD’s jurisdiction. 3 They were not barred from reque sting such a hearing, and th e regulations in effect at 4 the time did not limit those who could requesta public hearing to only members of the 5 public who could establish that they woul d experience an adverse impact from the 6 permit modification. 20.11. 41.14 NMAC (10/1/02). Instead, such a hearing, if 7 granted, could conceivably give a member of the public the opportunity to present 8 comment or evidence on what would otherwis e seem to be an attenuated harm from 9 a proposed permit. Thus, because Petitioners are members of the public living within 10 the EHD’s jurisdiction and requested a hearing, they had standing to appeal this 11 narrow procedural issue that arose due to the EHD’s denial of their request for a 12 hearing. Concluding otherwise would giveunfettered discretion to the EHD in the 13 determination of when significant public interest exist to hold a public hearing 14 because, as Respondents conceded at or al argument, it would foreclose the 15 opportunity for review of the EHD’s determination by the Board based on factors 16 unrelated to this specific issue. 17
{17} To clarify, we conclude only that Petitioners Toledo and Carrasco made a 18 sufficient showing that they have standing to allow them to argue their case before the 1912 Board on its merits. We have thus only considered whether these Petitioners were 1 adversely affected by the EHD’s actions, not whether the EHD properly denied their 2 request for a public hearing. Petitioners Toledo and Carrasco limite d the issues before 3 the Board to public notice and the refusal to hold a public hearing. We conclude 4 above that there is no viable dispute regarding public notice. Therefore, on remand, 5 the Board should determine whether Petitioners Toledo and Carrasc o’s request for a 6 public hearing, together with the emailed questions received by the EHD from the 7 local neighborhood associations, constituted “s ignificant public interest” to necessitate 8 a public hearing. 9 CONCLUSION 10
{18} For the foregoing reasons, we remand to the Board to hold a hearing on the 11 merits of whether the EHD improperly refused to hold a public hearing. 12
{19} IT IS SO ORDERED. 13

14 CYNTHIA A. FRY, Judge 15 WE CONCUR: 16
17 JAMES J. WECHSLER, Judge 18 19 TIMOTHY L. GARICA, Judge 20