This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 JACINTO LOPEZ, 2 Plaintiff-Appellant, 3

v. NO. 31,347 4 MUNICIPAL COUNCIL and MAYOR 5 OF THE CITY OF ARTESIA, NEW MEXICO, 6 Defendants-Appellees. 7

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler-Gray, District Judge 9 Ramon I. Garcia 10 Roswell, NM 11 for Appellant 12 Montgomery & Andrews, PA 13 Stephen S. Hamilton 14 Jaime R. Kennedy 15 Santa Fe, NM 16 McCormick, Caraway, Tabor & Byers, L.L.P. 17 John M. Caraway 18 Carlsbad, NM 19 for Appellees 2023 MEMORANDUM OPINION 1 BUSTAMANTE, Judge. 2 The City of Artesia (the City) resolvedthat Plaintiff Jacinto Lopez’s property 3 at 911 West Dallas, Artesia, New Mexico , should be condemned as a public menace. 4 Pursuant to Artesia, N.M., City Code § 5-5-4 (2004), Lopez sought de novo review 5 of the City’s resolution in district court. The court affirmed th e condemnation. Lopez 6 now argues that the ordinance exceeds th e authority granted to the City by NMSA 7 1978, Section 3-18-5 (1977), that the ordinance was improperly applied retroactively, 8 that the district court’s ruling was not s upported by substantial evidence, and that his 9 request for a jury trial was improperly denied. We agree that Ordinance 5-5-4 exceeds 10 the municipality’s authority by imposing a clearly erroneous standardof review on the 11 district court. Because the district court held a de novo trial but then applied the 12 incorrect standard, we remand for the district court to enter its findings of facts and 13 render judgment based on those findings. 14 I. BACKGROUND 15 In 2004 the City adopted Ordinances 5- 5-1 through 5-5-5 relating to dangerous 16 buildings and premises. Under certain ci rcumstances, these ordinances allowed the 17 City Council to determine by resolution that a property was a menace to the public. 18 Within ten days of service of such a resolution upon the property owner, the owner 194 is required to either begin removing the “building, structure, ruins, rubbish, wreckage 1 or debris” that created the menace, or to request a hearing be fore the City Council. 2 The ordinances also provide that an a dverse City Council decision may be appealed 3 de novo to the district court. 4 Lopez purchased the property at 911 West Dallas in Artesia over twenty years 5 ago. For several years, he lived and prac ticed medicine in the building. In 1985 or 6 1986, Lopez moved to California. During the time when he resided in California, the 7 building was vacant. Lopez returned about once a year to maintain the building, 8 usually in response to a notice from the C ity requesting that he remove weeds from 9 the property. 10 On June 22, 2010, the City notifie d Lopez that it was contemplating 11 condemnation of Lopez’s building. The le tter identified Sections 5-5-1 through 5-5-5 12 of the City of Artesia’s Municipal Codeas authority for the condemnation. On 13 August 10, 2010, the City passed a resolution finding that Lopez’s property “is 14 damaged and dilapidated or c overed with ruins, rubbish, wreckage, debris or weeds 15 to the extent that it is a menace to the pub lic comfort, health, peace and safety.” The 16 City again identified Sections 5-5-1 through 5-5-5 as authority for the resolution. 17 After Lopez objected, a hearing was held, and the City Council determined that the 18 resolution should be enforced. 195 Lopez appealed to the district court. A de novo trial was held at which exhibits 1 were entered into evidence and witnesses were examined. At the conclusion of this 2 trial, the district court orally observedthat, according to the evidence presented, 3 Lopez’s property was dilapidated and the City Council’s action of condemnation was 4 appropriate. However, the written judgment entered by the court made no such 5 findings. Instead, it concluded that the City ’s ruling was not clearly erroneous. It is 6 from this judgment that Lopez now appeals. 7 II. DISCUSSION 8 Lopez argues that Building Code Secti on 117.1 was improperly applied against 9 him retroactively, that the district c ourt’s ruling was not supported by substantial 10 evidence, that Ordinance 5- 5-4 exceeds the authority gran ted to the City by Section 11 3-18-5, and that his request for a jury trial was improperly denied. In order to clarify 12 the standard of review applicable to this proceeding, we begin with Lopez’s argument 13 that the city ordinances exceed th e authority granted by Section 3-18-5. 14 A. Standard of Review 15 Lopez argues that Ordinance 5-5- 4 exceeds the authority granted to 16 municipalities by Section 3-18-5 because the ordinance imposes a higher standard of 17 proof on his appeal to the district court th an the standard of appeal under Section 3- 18 18-5. The City contends thatthis argument is irrelevant because the district court did 196 not apply the standard from Ordinance 5-5- 4, but instead conducted a de novo trial on 1 the merits. The City also argues that Lopez failed to preserve this argument and that 2 the Ordinance does not exceed the City ’s authority under Section 3-18-5. 3 Pursuant to NMSA 1978, Section 3-17-1 (1993), municipalities may enact 4 ordinances to provide for the health and safety of their inhabitants so long as the 5 ordinances do not conflict with the laws of the State of New Mexico. The City 6 enacted an ordinance allowing it to condemn buildings that, in its judgment, were a 7 menace to the public comfort, health, peace, or safety. Artesia, N.M., City Code § 5- 8 5-1 (2004). A separate ordinance provi ded for review by the district court: 9 Any person aggrieved bythe determination of the city council may 10 appeal to the district c ourt . . . . The district c ourt shall hear the matter de 11 novo and enter judgment in accordance with its findings. The burden of 12 persuasion shall be upon the party taki ng the appeal to show that the 13 decision of the city council is clearly erroneous. 14 Artesia, N.M., City Code § 5-5-4. Bothof these ordinances closely follow the 15 language of Section 3-18-5. However, Or dinance 5-5-4 depart s from the language of 16 Section 3-18-5(E) by adding a final sentence purporting to impose a “clearly 17 erroneous” standard of review on the district court. 18 Administrative decisions are subject to tw o categories of review in the district 19 courts. In most cases the review is deferential, looking to the whole record to 20 determine “whether the agen cy acted arbitrarily or cap riciously, whether the agency 217 decision was supported by substantial eviden ce, and whether the agency acted within 1 the scope of its authority.” See Clayton v. Farmington City Council , 120 N.M. 448, 2 453, 902 P.2d 1051, 1056 (Ct. App. 1995); see also NMSA 1978, § 39-3-1.1 (1999); 3 Rule 1-074(R) NMRA. In whole record re view cases, this Court applies the same 4 standard of review as the district court. However, this proce ss does not apply “when 5 the statute controlling appeal [allows] some form of de novo review” by the district 6

court. Clayton , 120 N.M. at 453, 902 P.2d at 1056. 7 Clayton identified two factors which must bepresent in order to conclude that 8 a statute allows de novo review of administrative decisions. Id. First, the statute must 9 “contemplate[] additional evidentiary pres entation beyond the record created in front 10 of the administrative agency.” Id. Second, the statute must “allow[] the district court 11 more discretion in its judgment than simply reversal of the agency’s decision and 12 remand for further proceedings.” Id. Review by trial de novo means that the initial 13 reviewing court—generally, the district c ourt—“considers the issues presented on its 14 own, not bound, controlled or necessarily in fluenced, in any way by the action of the 15 inferior tribunal.” Id. at 454, 902 P.2d at 1057 (internal quotation marks and citation 16 omitted). 17 The Clayton Court applied these rules to analyze NMSA 1978, Section 3-19-8 18 (1965) (amended 1999). Regarding the first re quirement, the Court concluded that the 198 provision that the trial shall be “de novo and shall be governed by the rules of civil 1 procedure of the district court” allowe d or required “an entirely new evidentiary 2 inquiry.” Clayton , 120 N.M. at 454, 902 P.2d at 1057. The parties also agreed that 3 the district court was required to accept ne w evidence and, in light of the “de novo” 4 language in the statute, the c ourt accepted this contention. Id. at 455, 902 P.2d at 5 1058. As to the second requirement, the st atutory language implied that the remedy 6 could be broader than mere reversal. Although the statute discussed actions “to vacate 7 and set aside” the agency’s order, it also contemplated the district court granting relief 8 “by injunction, mandamus or any other extraordinary remedy.” Id. at 454, 902 P.2d 9 at 1057. Clayton concluded that the district court was required to exercise its own 10 judgment based on the agency ruling and the evidence presented at trial. Id. at 455, 11 902 P.2d at 1058 Accordingly, the Court in Clayton did not perform a whole record 12 review of the agency’s decision, but insteadreviewed the district court’s ruling for 13 substantial evidence and mistakes of law. Id. 14 Subsequently, Section 3-19-8 was modified to provide that appeals from 15 municipal planning commission decisions would be governed by Section 39-3-1.1. 16 1999 N.M. Laws, ch. 265, § 5. Section 39-3-1.1 provides a framework for 17 administrative appeals that applies the deferential whole record approach discussed 18 above. See § 39-3-1.1(D). It applies only whenexplicitly adopted. § 39-3-1.1(A). 199 Dozens of statutes have adopted Secti on 39-3-1.1; however, the Legislature has 1 chosen not to replace the appeal procedur e in Section 3-18-5 with a reference to 2 Section 39-3-1.1. Wetherefore now apply Clayton ’s reasoning to determine the 3 standard of review applicable to di strict court review under Section 3-18-5. 4 Section 3-18-5 provides that on appeal from a municipality’s decision, the 5 “district court shall hear the matter de novo and enter judgment in accordance with its 6 findings.” Section 3-18-5(E)(2 ). This language contemplates that the district court 7 will hear additional evidence. Like the statute in Clayton , it provides for de novo 8 review. Additionally, it instructs the districtcourt to make findings, an instruction that 9 is incompatible with the deferential whole record review described in Section 39-3-1.1 10 and Rule 1-074. See Cadena v. Bernalillo Cnty. Bd. of Cnty. Comm’rs , 2006-NMCA11 036, ¶ 18, 139 N.M. 300, 131 P.3d 687 (holding that a district court may not make 12 findings of fact when reviewing under Sec tion 39-1-1.1). The language also allows 13 the district court to do more than simply reverse and remand—the court must enter a 14 judgment based on its findings. We therefore conclude that S ection 3-18-5 requires 15 de novo review of decisions by municipalities in the district courts. 16 Ordinance 5-5-4 attempts to restrict re view, not just to the deferential review 17 of Section 39-3-1.1 and Rule 1-074, but to review under a clearly erroneous standard, 18 which is only a small portion of whole record review. Because this purported 1910 restriction conflicts with Section 3-18-5, the City had no authority to pass it. See § 3- 1 17-1. The correct procedure was for the court to conduct a de novo proceeding, 2 hearing new evidence and entering its judgment based on its findings. If the district 3 court has applied the correct standard, we will not apply w hole record review to the 4 City Council’s resolution, but will instead vi ew the proceedings in the district court 5 through the lenses of our traditional standards of review. 6 B. Substantial Evidence 7 We now turn our attention to the proceedi ngs before the district court. In doing 8 so, we also examine Lopez’s argument that the district court’s conclusion that his 9 property violated Ordinance 5-5-1 is not supported by substantial evidence. 10 Ordinance 5-5-1 provides that 11
Whenever any building or structure is ruined, damaged and dilapidated, 12 or any premises is covered with ru ins, rubbish, wreckage or debris, the 13 city council may, by resolution, fi nd that the ruined, damaged and 14 dilapidated building or structure or premises is a menace to the public 15 comfort, health, peace or safety and require the removal from the city of 16 the building, structure, ruins, rubbish, wreckage or debris. 17 The City made such a resoluti on, and the district court de termined that the resolution 18 was not clearly erroneous. 1911 “Substantial evidence is such relevant evidence that a r easonable mind would 1 find adequate to s upport a conclusion.” Salazar v. D.W.B.H., Inc. , 2008-NMSC-054, 2 ¶ 6, 144 N.M. 828, 192 P.3d 1205 (internal quot ation marks and citation omitted). 3 [W]hen considering a claim of in sufficiency of the evidence, the 4 appellate court resolves all disputes of facts in favor of the successful 5 party and indulges all reasonable inferences in support of the prevailing 6 party. Additionally we will not re weigh the evidence nor substitute our 7 judgment for that of the fact finder. The question is not whether 8 substantial evidence exists to support the opposite result, but rather 9 whether such evidence s upports the result reached. 10 Las Cruces Prof’l Fire Fighters v. City of Las Cruces , 1997-NMCA-044, ¶ 12, 123 11 N.M. 329, 940 P.2d 177 (citations omitted). 12 The district court held a hearing at wh ich it heard evidence regarding the state 13 of Lopez’s property. Ms. Hinkle testified that the property was run down, boarded up, 14 and covered in trash and debris. Photographs were introduced in to evidence showing 15 evidence of structural problems, leaks, filth, and possibly mold. At the hearing, the 16 district court stated its opinion that no objective observer of the photographs would 17 conclude that the building was not dilapidated. We agree with the district court that 18 the photographs and testimony are relevantevidence from which a reasonable mind 19 could conclude that the property was dilapi dated and covered withrubbish and debris. 20 Although the district court correctly conducted a de novo trial, hearing new 21 evidence and drawing its own conclusions fro m the evidence, there is nevertheless one 2212 problem that prevents us from simply affirming its result. The or der filed by the court 1 did not set forth the findings and conclusions the court made orally at the hearing. 2 Instead, the order stated that“[a]fter hearing the matter de novo , the [c]ourt [f]inds that 3 Plaintiff has failed to meet its burden of persuasion to s how that the decision made by 4 the Artesia City Council is clearly erroneous.” The court also made it clear that this 5 conclusion was based on Ordinance 5-5-4. Ho wever, as we have discussed, the City 6 was without authority to impose a clearly e rroneous standard of review on the district 7

court. 8 The error is significant because the clearly erroneous standard is more difficult 9 for Lopez to overcome than the standard–presumably a preponderance of the 10 evidence–which would apply at a de novo trial on the merits. The error also prevents 11 us from simply affirming, as it is possible that the district court believed th at Lopez 12 would have prevailed under the lower standard, but did not prevail under the clearly 13 erroneous standard. We therefore remand fo r the district court to make findings and 14 enter its judgment in accordance with the valid portion of Section 5-5-4 and the 15 discussion in this Opinion. 1613 C. Retroactivity 1 Having discussed the areas in which there was error, we proceed to the issues 2 in which there was not. L opez argues that the city improperly applied Section 117.1 3 of its building code against him retroactively. Relying on Howell v. Heim , 118 N.M. 4 500, 506, 882 P.2d 541, 547 (1994), the City argues that an ordinance is not 5 retroactively construed when it is applied to a condition existing on its effective date. 6 Alternatively, the City argue s that its actions were also authorized by Section 3-18-5. 7 We presume that a statute applies pros pectively unless the Legislature clearly 8 intends to give it retroactive effect. State v. Morales , 2010-NMSC-026, ¶ 8, 148 N.M. 9 305, 236 P.3d 24. Because the ordinances at issue here do not explicitly declare that 10 the Legislature intended them to apply retr oactively, “we must interpret [them] to 11 apply prospectively and ensure that there is no retroactive effect.” GEA Integrated 12 Cooling Tech. v. State of N. M. Taxation & Revenue Dep’t , 2012-NMCA-010, ¶ 17, 13 , N.M. , P.3d . Whether a statute operates retroactively is a question 14 of statutory construction that we review de novo. See id. ¶ 5. 15 “A statute or regulation is considered retroactive if it impairs vested rights 16 acquired under prior law or re quires new obligations, imposes new duties, or affixes 17 new disabilities to past transactions.” Howell , 118 N.M. at 506, 882 P.2d at 547. 18 “Thus, to determine whether a statutory ame ndment is retroactive the court must ask 1914 whether the new provision attaches new le gal consequences to events completed 1 before its enactment.” Morales , 2010-NMSC-026, ¶ 9 (internal quotation marks and 2 citation omitted). “[A] statute does not operate retroactiv ely merely because some of 3 the facts or conditions which are relied upon existed prior to the enactment.” Howell , 4 118 N.M. at 506, 882 P.2d at 547 (internal quotation marks and citation omitted). 5 We discern no retroactive application of ordinances in this case. As an initial 6 matter, we note that although Lopez directs his argument at Section 117.1 of the 7 building code, the City actually exercise d its powers under Ordinance 5-5-1, and we 8 will treat Lopez’s argument as applying to that ordinance. Furthermore, we agree with 9 the City that Section 3-18- 5, which predates Lopez’s purchase of the property and 10 which confers upon the City the powers identical to Ordinance 5-5-1, applies 11 prospectively here and justifies affirman ce under a right for any reason theory. But 12 in any event, no ordinance was applied re troactively here because the City has not 13 sought to penalize Lopez for a condition that existed and was terminated prior to the 14 ordinance’s adoption. Instead, the City ba sed its resolution on a condition that existed 15 prior to the ordinances in question and which continued to exist despite years of 16 efforts to get Lopez to comply. We th erefore conclude that the City did not 17 impermissibly apply any ordinance retroactively. 1815 D. No Right to Jury Trial 1 Lopez contends that the district court wrongfully denied his request for a trial 2 by jury. His argument appears to rest on a distinction between administrative appeals, 3 which he implies do not require a jury, and trials de novo, which he suggests do. 4 “The right of trial by jury as it has heretofore existed shall be secured to all and 5 remain inviolate.” N.M. Const. art. II, § 12. “It was the purpose of the Constitution 6 framers to retain the right to trial by jury as it heretofore existed in the Territory of 7 New Mexico except in special proceedings unless express provision for jury trial was 8 included therein.” El Paso Elec. v. Real Estate Mart, Inc. , 98 N.M. 490, 495, 650 9 P.2d 12, 17 (Ct. App. 1982). “Article II, Section 12 of the New Mexico Constitution 10 has been interpreted so as to preserve the right to a jury trial as it existed at the time 11 the constitution was adopted.” Smith v. First Alamogordo Bancorp, Inc. , 114 N.M. 12 340, 342, 838 P.2d 494, 496 (Ct. App. 1992). 13 At the time the New Mexico Constituti on was adopted, no provision existed for 14 trial by jury in a proceeding of this type because no proceeding of this type existed. 15 Authority for a municipality to condemn pr operty is currently granted by Section 3- 16 18-5, which was originally enacted in 1965. 1965 N.M. Laws, ch. 300. The statute 17 does not explicitly grant the right to trial by jury. See § 3-18-5(E) (contemplating that 18 the court will enter judgment based on its findings, not on a jury’s verdict). 1916 Furthermore, Lopez has not identified any an alogous action that existed at the time the 1 New Mexico Constitution was adopted in which there was a right to a jury. See In re 2 Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Lopez’s only 3 citation is to rule 1-072(F) NMRA, which does not govern ad ministrative appeals. As 4 Lopez has not pointed us to any error in the district court’s denial of his jury request, 5 we decline to reverse the districtcourt’s decision on this basis. See Farmers, Inc. v. 6 Dal Mach. & Fabricating, Inc. , 111 N.M. 6, 8, 800 P.2d 1063, 1065 (1990) 7 (“Appellant must affirmatively dem onstrate its assertion of error.”). 8 III. CONCLUSION 9 For the foregoing reasons, we vacate the di strict court’s judgment of dismissal 10 and remand for further proceedings consistent with this Opinion. 11 IT IS SO ORDERED. 12 13 MICHAEL D. BUSTAMANTE, Judge 14 WE CONCUR: 15

16 CYNTHIA A. FRY, Judge 17

18 LINDA M. VANZI, Judge 1917