This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 ARTHUR FIRSTENBERG, 2 Petitioner-Appellant, 3

v. No. 33,441 4 CITY OF SANTA FE, a municipality, 5 and AT&T MOBILITY SERVICES, LLC, 6 Respondents-Appellees. 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Sarah M. Singleton, District Judge 9 Arthur Firstenberg 10 Santa Fe, NM 11 Pro Se Appellant 12 City of Santa Fe 13 Marcos D. Martinez 14 Santa Fe, NM 15 for Appellee City of Santa Fe 16 Basham & Basham P.C. 17 Mark A. Basham 18 Santa Fe, NM 19 Mayer Brown LLP 202 Hans J. Germann 1 Chicago, IL 2 for Appellee AT&T Mobility Services, LLC 3 MEMORANDUM OPINION 4 SUTIN, Judge. 5
{1} Petitioner Arthur Firstenberg filed a petition for a writ of mandamus seeking 6 enforcement of a provision of the Santa FeCity Code (the Code) that Petitioner 7 interpreted to require AT&T Mobility Serv ices, LLC (AT&T) to apply for a special 8 exception from the City of Santa Fe’s Boar d of Adjustment before broadcasting “3G” 9 signals instead of “2G” signals from its Santa Fe base stations. After issuing an 10 alternative writ of mandamus, requiring the City of Santa Fe (the City) to either 11 commence enforcement proceedings against AT&T or to show cause why it had not 12 done so, and after considering Petitioner’s and the City’s (joined by AT&T) respective 13 arguments, the district court denied the petiti on. Petitioner appeals the district court’s 14 decision to deny his petition for a writ of mandamus, raising a number of arguments 15 in support of his request that this Court reverse the district court’s decision. 16
{2} We hold that Petitioner failed to meet the mandamus requirement of 17 demonstrating that the City had a clear-cut mandatory duty to re quire AT&T to apply 18 for a new special exception before emitting 3Gsignals from its Santa Fe base towers, 19 and we affirm the district court’s de nial of his petition. Because we resolve 201 Section 14-3.6(B)(4)(b) (2001) and other related provisions of the Code have 15 since been modified. Although some modifi cations were made prior to the district 16 court’s decision in this matter, neither party argued below nor do they argue on appeal 17 that the modifications render Petitioner’s appeal moot. As did the district court, we 18 limit our discussion to the then -applicable Code provisions. See State ex rel. Edwards 19 v. City of Clovis , 1980-NMSC-039, ¶¶ 5-7, 94 N.M. 136, 607 P.2d 1154 (stating that 20 “a [c]ity cannot, by enacting an ordinance, affect or change what would be the result 21 of a pending [mandamus] action . . . based upon valid ordinances existing at the time 22 of the application [for a writ of mandamus]”). 23 3 Petitioner’s appeal on that basis, we do not consider Petitioner’s various federal 1 statutory and constitutional arguments by wh ich he attempts to support his argument 2 regarding the City’s duty. Additionally, we reject Petitioner’s argument that the 3 district court’s decision was marred by unethi cal judicial conduct that resulted in a due 4 process violation. 5 BACKGROUND 6
{3} Petitioner sought a writ of mandamus requiring the City to enforce the then7 effective version of the Code, Santa Fe , N.M, City Code ch. 14, art. 14, § 14- 8 3.6(B)(4)(b) (2001, amended 2011) 1 . The at-issue ordinance, Chapter 14, Article 14, 9 constitutes the City’s “Comprehensive Land Development Ordinance” that applies “to 10 all land, buildings[,] and other structures, and their uses, located within the corporate 11 limits of Santa Fe[.]” See Santa Fe, N.M., City Code § 14-1 (2011) (editor’s note); 12 § 14-1.6 (emphasis omitted). Chapter 14 of the Code is governed by a “general plan” 13 that is “the basic policy guide for the admi nistration of Chapter 14[,]” and the general 144 plan “serves as the statement of goals, recommendations[,] and policies guiding the 1 development of the [City’s] physical envi ronment[.]” Santa Fe, N.M., City Code 2 § 14-1.3(A) (emphasis omitted) ; § 14-1.5 (emphasis omitted). 3
{4} Chapter 14 of the Code contains sp ecific regulations governing the physical 4 placement and the physical appearance of telecommunication facilities. See Santa Fe, 5 N.M., City Code § 14-6.1(E) (2001, amended 2011). Under the at-issue version of the 6 Code, when a telecommunications company, such as AT&T, sought to place a 7 telecommunication facility in a physical location not specifically authorized in 8 Chapter 14, it was required to seek a “special exception” from the Board of 9 Adjustment for such placement. See § 14-6.1(E)(6)(a)(i) (2001). AT&T acquired an 10 unspecified number of special exceptions pursuant to which it operated “cellular 11 phone base stations” within the City. 12
{5} When Petitioner filed his petition for a writ of mandamus in December 2010, 13 Section 14-3.6(B)(4)(b) (2001) provided: 14 The special exceptions listed in th is chapter, when granted, are 15 considered granted for a specific use and intensity, any change of use or 16 more intense use shall be allowed onl y if such change is approved by the 17 Board of Adjustment under a special exception. 18
{6} In his petition, Petitioner asserted that the cellular phone base stations that 19 AT&T operated within the City pursuant to special exceptions emitted a 2G (second 20 generation) signal until Nove mber 15, 2010, on which date AT&T began emitting 3G 215 (third generation) signals from those base st ations. According to Petitioner, the result 1 of AT&T switching from 2G to 3G signals was a vast increase in “the bandwidth of 2 their radio emissions, as well as” an increas e in the “average strength of their radio 3 emissions and their capacity to handle voice and data traffic from cell phones and 4 Smart Phones in Santa Fe.” Petitioner argued that “[i]ncreasing the radio emissions 5 and capacity of base stations constitutes a ch ange in the intensity of use” that required 6 the City to apply for a new special ex ception under Section 14-3.6(B)(4)(b) (2001). 7 Petitioner argued further that owing to his disability (electromagnetic 8 hypersensitivity), which requires him to avoid exposure to radio-frequency radiation 9 from cell phones, cell towers, and other sources, he was benefi cially interested in the 10 enforcement of Section 14-3.6(B)(4)(b) (2001). 11
{7} Prior to filing his petition for a writ of mandamus, Petitioner attended a 12 November 17, 2010, public hearing before the City’s Board of Adjustment (the Board) 13 pertaining to AT&T’s request to perform maintenance and repair at two of its base 14 stations. Although the maintenance and re pair at issue in the public hearing was 15 unrelated to AT&T’s switch from 2G to 3G (which had occurred two days prior to the 16 public hearing), Petitioner and others , who also suffer from electromagnetic 17 hypersensitivity, attended the hearing and rais ed the 2G-to-3G issue as it related to 18 their disability in an effort to persuade the City to require AT&T to apply for a new 192After the district court issued its alternative writ of mandamus, AT&T removed the 16 case to federal court alleging federal question jurisdiction. The United States District Court 17 granted AT&T’s motion to dismiss Petitioner’s petition, but the Tenth Circuit Court of 18 Appeals reversed that dismissal on the basis of a lack of federal jurisdiction over a claim that 19 arose under a city ordinance. See Firstenberg v. City of Santa Fe , 696 F.3d 1018, 1019-21 20 (10th Cir. 2012). The matter was remanded to th e district court, the proceedings in which 21 6 special exception for its switch to 3G. Petitioner and his fellow sufferers were 1 unsuccessful in their presentation to the Board, however, because the Board concluded 2 that it lacked “jurisdiction” to consider objections to an incr ease in radio-frequency 3 emissions. 4
{8} Following that hearing, Petitioner filed his petition for a writ of mandamus. In 5 his petition, Petitioner claimed that mandamu s was appropriate because he had “no 6 plain, speedy[,] and adequate remedy in the ordinary [course] of law” to enforce what 7 he interpreted as the City’s “duty” to require AT&T to request a special exception 8 pursuant to Section 14-3.6(B)(4)(b) (2001) before emitting 3G signals. See NMSA 9 1978, § 44-2-5 (1915) (stating that a writ of mandamus “shall not issue in any case 10 where there is a plain, speedy[ ,] and adequate remedy in th e ordinary course of law”). 11
{9} The district court issued an alternativ e writ of mandamus, requiring the City to 12 either require AT&T to “discontinue its 3Gbroadcasts within the City . . . within 13 [thirty] days” and require it to submit an application fo r a special exception “for each 14 base station from which it propose[d] to broadcast [3G] signals,” or that the City 15 “show cause . . . why it ha[d] not done so.” 2Having considered the parties’ respective 16are the subject of this app eal. We do not further address the federal proceedings in this 16 Opinion. 17 7 arguments in response to its alternative writ of mandamus, the district court concluded 1 that Section 14-3.6(B)(4)(b) (2001) was not violated by AT&T’s switch from 2G to 2 3G signals without first obtaining a special exception; accordingly, the district court 3 denied the petition. While the district c ourt concluded that “Petitioner’s claim must 4 be rejected” for the foregoing reason, it we nt further and found that Petitioner’s claim 5 was preempted by federal law, that Petitioner’s argument related to the Americans 6 with Disabilities Act failed to state a claim, that Petitioner’s equal protection argument 7 failed to establish that his right to equal protection was violated, and that Petitioner 8 had not been denied due process. 9
{10} On appeal from the district court’s decision, Petitioner argues that it was 10 unnecessary and improper for the district c ourt, in resolving the mandamus issue, to 11 have reached the issues implicating federal law; he nevertheless addresses the court’s 12 rulings, arguing that the court erred in each of its determinations. Because we 13 conclude that the district court properly denied Petitioner’s petition for a writ of 14 mandamus based on the conclusion thatSection 14-3.6(B)(4)(b) (2001) was not 153 Petitioner’s remaining arguments relate to whether, pursuant to various 18 federal laws, the City of Santa Fe mustregulate the emissi on of radio-frequency 19 waves. Petitioner’s petition seeking a writ of mandamus was based only on the 20 limited question whether a particular provisi on of the Code in fact regulates radio16 frequency emissions. Our conclusion that it does not resolves the mandamus issue. 17 The broader issue whether, in accord withfederal law, the City must or should 18 regulate radio-frequency emissi ons has no bearing on the solequestion in this appeal, 19 which is whether the Code, as written, regulates those emissions. 20 8 violated by AT&T’s switch from 2G to 3G, which issue resolves the mandamus issue 1 before us, we do not consider Petitioner’s remaining arguments 3

. 2 DISCUSSION 3
{11} We review the district court’s decision to deny a petition for a writ of 4 mandamus for an abuse of discretion. See FastBucks of Roswell, N.M., LLC v. King , 5 2013-NMCA-008, ¶ 7, 294 P.3d 1287 (“While mandamus procedure is technical in 6 nature and closely regulated by statute, the writ is an extraordinary remedy, and 7 district courts retain discretion when ruli ng on the propriety of issuing the writ in any 8 given case.” (alteration, internal quotation marks, and citations omitted)). A district 9 court decision that is based on a misapprehension of a law (or an ordinance), 10 constitutes an abuse of discretion. See Parkview Cmty. Ditch Ass’n v. Peper , 2014- 11 NMCA-049, ¶ 23, 323 P.3d 939; see also City of Albuquerque v. Ryon , 1987-NMSC12 121, ¶ 6, 106 N.M. 600, 747 P.2d 246 (recognizing that a city ordinance that is 13 promulgated pursuant to statutory authority has the “force of law”). Because the 149 mandamus action concerned a cityordinance, this Court, as well as the district court, 1 must give deference to the city’s in terpretation of its own ordinance. See Hyde v. Taos 2 Mun.-Cnty. Zoning Auth. , 1991-NMCA-114, ¶ 3, 113 N.M. 29, 822 P.2d 126. 3
{12} “In order for mandamus to issue, the act to be compelled must be ministerial, 4 constituting a nondiscretionary duty which th e respondent is required to perform.” 5 Hart v. City of Albuquerque , 1999-NMCA-043, ¶ 17, 126 N.M. 753, 975 P.2d 366 6 (alteration, internal quotation marks, and citation omitted). A nondiscretionary 7 ministerial duty is one that the respondent is “required to perform by direction of 8 law[.]” Id. (internal quotation marks and citation omitted). In the abse nce of a “clear9 cut mandatory duty” to perform the at-issue action, a writ of mandamus is not 10 appropriate. See State ex rel. Whitehead v. Vescovi-Dial , 1997-NMCA-126, ¶ 4, 124 11 N.M. 375, 950 P.2d 818. 12
{13} Because Petitioner seeks reversal of the district court’s decision denying his 13 petition for a writ of mandamus, the issue in this case boils down to whether AT&T 14 violated the applicable version of Section 14-3.6(B)(4)(b) (2001) by emitting 3G 15 instead of 2G signals without first obtai ning a new special exception from the Board. 16 If so, reversal is in order. If not, the district court properly denied Petitioner’s petition 17 for a writ of mandamus. 1810 {14} The district court’s finding that AT&T’s emission of 3G signals from its Santa 1 Fe base stations did not violate Sec tion 14-3.6(B)(4)(b) was based on two grounds. 2 First, the court found that Petitioner “faile d to identify anything in AT&T’s existing 3 special exceptions that limited AT&T’s use of its wireless equipment to 2G signals.” 4 Second, the district court gavedeference to and agreed “w ith the City’s interpretation 5 of its Code, under which the level of [r adio-frequency] emissions from wireless 6 telecommunications facilities are not an aspect of the ‘intensity’ of land use regulated 7 by the City under the Code.” Weconsider each of the district court’s findings in turn. 8
{15} Petitioner does not attack the district c ourt’s finding that the special exceptions 9 pursuant to which AT&T operated its Santa Fe base stations did not limit AT&T to 10 emitting a 2G signal. Nor, on this record, c ould he reasonably do so. As stated by the 11 district court, “the only evidence in the r ecord regarding permitted levels of [radio12 frequency] emissions” is from a 2008 memorandum to the Board from Daniel 13 Esquibel, Land Use Planner Senior. Mr. Esquibel recommended approving AT&T’s 14 requested special exception subject to the condition, among others, that “following the 15 construction of the facility [AT&T] shall pr ovide certified documentation . . . that the 16 telecommunication facility has been inspected for compliance with all [Federal 17 Communications Commission (FCC)] existing [radio-frequency] emissions standards 18 including but not limited to limiting human exposure to radio[-]frequency energy and 1911 structural integrity.” The Board’s approval of the 2008 special exception did not 1 qualify its approval by placing a limit on or even mentioning radio-frequency 2 emissions, nor did it mention the terms “2G” or “second generation.” 3
{16} In sum, the only apparent limitati on on AT&T’s radio-frequency emissions 4 anticipated in the special ex ception was that AT&T must comply with FCC standards. 5 Petitioner did not argue below nor does heargue on appeal that AT&T’s radio6 frequency emissions fail to comply with FCC standards. In the absence of any record 7 evidence indicating that AT&T’s special exception was otherwise limited to any 8 “intensity” of radio-frequency emissions and in the absence of any indication that the 9 special exception limited AT&T to emission of a 2G signal, Petitioner’s argument 10 that AT&T exceeded its authorization under the 2008 or any other special exception 11 is unavailing. 12
{17} Petitioner also argues that the district court’s conclusion th at radio-frequency 13 emissions are not regulated by the Code was “clearly erroneous.” We disagree. The 14 Code does not reflect that the Board or the City had a clear-c ut mandatory duty to 15 regulate radio-frequency emissions. Vescovi-Dial , 1997-NMCA-126, ¶ 4 (stating that 16 mandamus is not appropriate unless there is a “clear-cut mandatory duty” to perform 17 the at-issue action). While Petitioner has attempted to demonstrate otherwise by 18 relying on pieced-together selections of text from various provisions of the Code and 1912 employing false logic to attempt to persuade this Court that a special exception is a 1 permit to emit a specific amount of radio-fre quency radiation, weare not persuaded. 2
{18} Section 14-6.2(E) of the applicab le version of the Code, governing 3 “Telecommunication Facilities” reflects that the Code regulated the construction, 4 placement, and physical characteristics of towers and antennas. See Santa Fe, N.M, 5 City Code § 14-6.2(E)(3) (2001, amended 2011) (stating the general requirements of 6 the telecommunications ordinances pertai ning, among other things, to the lot size, 7 aesthetics, lighting, building and safety codes, sign placement, property maintenance, 8 landscaping, and dimensions of the towers or antennas). Notably absent from these 9 provisions was any stated limit on or even any mention of the term “radio-frequency.” 10 Id. 11
{19} Likewise, the Code’s provisi ons related specifically to “special exceptions” did 12 not purport to govern, regulate, or in any way limit the intensity of radio-frequency 13 emissions. See generally§ 14-6.2(E)(6) (2001). Rather, the obvious purpose of a 14 special exception was to ensure that tel ecommunication towers and antennas that were 15 constructed in zoning districts, where they were otherwise not permitted, were 16 constructed pursuant to the Board’s approval and pursuant to certain physical, 17 geographic, and aesthetic specifications. See, e.g. , § 14-6.2(E)(6)(a)(i) (2001) (stating 18 that “[a] special exception shall be require d for the construction and placement of all 1913 towers and antenna in all zoning district s unless said construction or placement is 1 otherwise permitted or administratively approved”); § 14-6. 2(E)(6)(a)(iii) (2001) 2 (stating the height specifications in certain zoning districts); § 14-6.2(E)(6)(a)(ix), 3 (xi), (xii) (2001) (governing placement of telecommunications equipment within 4 historical districts and governing the fenc ing, walls, and landscaping requirements). 5
{20} In sum, the Code’s provisions governing telecommunication facilities, 6 generally, and special exceptions, specifically, do not demonstrate that the Code 7 purported to regulate radio -frequency emissions in any manner, including their 8 “intensity.” Under these circumstances, we conclude that it is appropriate to defer to 9 the City’s conclusion that “nothing in the Code required the City to regulate AT&T’s 10 alleged increase in [radio-frequency] emi ssions from its existing facilities.” Because 11 the district court reached the same c onclusion when it found that radio-frequency 12 “emissions are not regulated under [the C ode’s] provisions[,]” we agree with the 13 district court’s determination in that regard. 14
{21} We conclude that the district court did not abuse its discretion by denying 15 Petitioner’s petition for a writ of mandamus. Petitioner failed to demonstrate that 16 AT&T’s special exception limited its emi ssion of radio-frequency radiation to a 17 specific level or that AT&Texceeded any such limit by emitting a 3G instead of a 2G 18 signal from its Santa Fe base stations. Fu rthermore, the relevant provisions of the 1914 Code comport with the City’s interpretation of them, leading us to conclude that the 1 City’s interpretation deserves this Court’s and the district court’s deference. See 2 Hyde , 1991-NMCA-114, ¶¶ 3, 5 (stating thatdeference is owed to a city’s 3 interpretation of its own ordinance, provide d that it is reasonable). Because Petitioner 4 has failed to demonstrate that the City ha d a “clear-cut mandatory duty” to require 5 AT&T to obtain a new special exception before emitting 3G signals, the writ of 6 mandamus was properly denied. Viscovi-Dial , 1997-NMCA-126, ¶ 4 (stating the 7 standard by which the propriety of granting a writ of mandamus is measured). 8
{22} Finally, we address Petitioner’s argumen t that “the district court violated 9 judicial ethics and due process by adopting verbatim the arguments in [the City’s and 10 AT&T’s] ex parte brief.” Without providing any citations to the record in support of 11 his argument, Petitioner claims that the district court requested the parties to submit 12 a “round of briefing, styled as ‘proposed decisions,’ and adopted as its opinion the 13 brief of [the City and AT&T], which was submitted ex parte.” See Rule 12-213(A)(4) 14 NMRA (requiring an appellant to provide record proper citations in support of each 15 argument). Petitioner claims that, as a resu lt, his right to due process was violated, 16 and he argues further that this alone is a basis for reversal. We disagree. 17
{23} The City and AT&T argue that, as a matter of inadvertence, it failed to serve 18 Petitioner with a copy of its proposed deci sion until the day after it was submitted to 1915 the district court. Petitioner concedes that he received that copy, and in his reply brief, 1 he concedes that he was not prejudiced by the “ex part e submission[.]” Rather, he 2 argues that he was prejudiced by the districtcourt’s “almost . . . verbatim” adoption 3 of the City’s and AT&T’s proposeddecision that caused the prejudice. 4
{24} Absent a showing that the district court “abdicated its judicial responsibility[,]” 5 its adoption of a party’s proposed findings of fact and conclusions of law does not 6 constitute error. Empire W. Cos. v. Albuquerque Testing Labs., Inc. , 1990-NMSC7 096, ¶ 25, 110 N.M. 790, 800 P. 2d 725. Petitioner does not demonstrate that the 8 district court abdicated its decision-making responsibility in this case. Furthermore, 9 the record belies Petitioner’s assertion that the district court adopted the City’s and 10 AT&T’s proposed decision verbatim. Instead, the record reveals that while the district 11 court incorporated portions of the proposed decision in its order, the order was 12 formulated by the district court and was ultimately the product of the court’s 13 independent decision-making process. Petitioner fails to demonstrate that he was 14 prejudiced by the district court’s reliance on the City’s and AT&T’s proposed 15 decision, and his mere assertion of prejudi ce is insufficient to garner reversal. See In 16 re Convisser , 2010-NMSC-037, ¶ 24, 148 N.M. 732, 242 P.3d 299 (recognizing that 17 a mere assertion of prejudice, without de monstrating how the result would have been 18 different but for the alleged error, is not a showing of prejudice). 1916 CONCLUSION 1
{25} We affirm. 2
{26} IT IS SO ORDERED. 3

__________________________________ 4 JONATHAN B. SUTIN, Judge 5

WE CONCUR: 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

_________________________________ 9 CYNTHIA A. FRY, Judge 10