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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40374

FAIRWAY VILLAGE NEIGHBORHOOD

COUNCIL, INC.,

Appellant-Respondent,

v.

BOARD OF COMMISSIONERS OF

DOÑA ANA COUNTY,

Appellee-Petitioner,

and

PICACHO HILLS DEVELOPMENT

COMPANY,

Interested Party.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

James T. Martin, District Court Judge

Karen E. Wootton Legal Services, P.C.

Karen E. Wootton

Las Cruces, NM

for Respondent

Macke Law & Policy, LLC

Daniel J. Macke

Albuquerque, NM

for Petitioner

MEMORANDUM OPINION
DUFFY, Judge.

{1} The Board of County Commissioners of Doña Ana County (Board) appeals from 

a district court order reversing the Board’s approval of a zoning change. The Board 

contends the district court erred by (1) finding that the Board was required to make 

independent or separate findings rather than adopting findings and conclusions 

prepared by county development staff, and (2) concluding the Board’s decision was not 

supported by substantial evidence. For the reasons that follow, we affirm the district 

court’s order reversing the Board’s decision.

BACKGROUND

{2} In June 2021, the Doña Ana County Planning and Zoning Commission (the 

Commission) denied an application by Picacho Hills Development Company for a 

zoning change for a 4.56 acre parcel of land located at 1200 Fairway Village Drive in 

Doña Ana County. Picacho Hills sought to upzone the parcel from D3 (high density 

residential) to C2 (community commercial) to allow for the development of a recreational 

vehicle storage facility on the land. In September 2021, the Board, acting in an appellate 

capacity, held a de novo public hearing on the Commission’s decision to deny the zone 

change. During the hearing, the Board heard testimony from a Picacho Hills 

representative, community development department staff, and community members 

opposed to the zoning. The Board voted to reverse the Commission’s decision and 

approve the zone change, finding that the proposed development was consistent with 

the Doña Ana County Comprehensive Plan and the zone change was appropriate and 

reasonably necessary to protect the public interest. The Board also found that there was 

a “substantial change in conditions in the surrounding area.” Furthermore, the Board 

noted that the zone change was not “spot zoning” and would be beneficial to residents 

in the area by increasing the availability of RV storage. 

{3} Fairway Village Neighborhood Council, Inc. are nearby homeowners who oppose 

the zone change and development of an RV storage facility on the land. Following the 

Board’s decision, Fairway Village appealed the Board’s approval of the zone change to 

the district court. 

{4} The district court, acting in an appellate capacity pursuant to Rule 1-074 NMRA, 

reversed the Board’s decision and denied Picacho Hills’s application for a zone change. 

In a letter decision, the district court stated that the Board’s order approving the zone 

change “merely parrots [the Board’s] staff’s conclusions without any analysis or citation 

to the record to support those conclusions” and noted that the Board did not discuss the 

standards for zoning changes set forth in Albuquerque Commons Partnership v. City 

Council of Albuquerque, 2008-NMSC-025, 144 N.M. 99, 184 P.3d 311, or Miller v. City 

of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665, “in such a way as to 

show that the [Board] complied with the applicable legal standard necessary to justify a 

zoning change.” We granted the Board’s Rule 12-505 NMRA petition for writ of certiorari 

review. 
DISCUSSION

{5} “When reviewing an agency decision by writ of certiorari, we apply the same 

standard of review applicable to the district court under Rule 1-074(R) NMRA . . . while 

at the same time determining whether the district court erred in the first appeal.” Ann 

Morrow & Assocs. v. N.M. Hum. Servs. Div., 2022-NMCA-060, ¶ 7, 517 P.3d 965 

(internal quotation marks and citation omitted). This Court will affirm an agency’s 

decision unless (1) the agency acted fraudulently, arbitrarily, or capriciously; (2) based 

upon the whole record on appeal, the agency’s decision was not supported by 

substantial evidence; (3) the agency’s action was outside its scope of authority, or (4) 

the agency’s action was not in accordance with law. Rule 1-074(R).

{6} The zoning change at issue must be justified by (1) a change in conditions in the 

community that make the amendment reasonably necessary to protect the public 

interest, (2) a mistake in the original zoning, or (3) a showing that the zoning change is 

more advantageous to the community compared with other available property. 

Albuquerque Commons, 2008-NMSC-025, ¶¶ 25, 30; Miller, 1976-NMSC-052, ¶ 14. 

The Board’s order indicates that it relied on the first justification, change in community 

conditions. The district court determined that the Board’s finding was not supported by 

substantial evidence. The district court noted that the Board, “in their formal order 

adopting recommendations from its staff, found that . . . there had been a substantial 

change in the area since 1999 through the existence of the golf course, clubhouse, and 

wastewater plant.” The court noted, however, that the golf course, clubhouse, and 

wastewater plant had all been in existence since 1979 and predate the most recent 

zoning classification for the area, which occurred in 2017. The court concluded, “There 

was no evidence to show any substantial change in the area’s uses or activities since 

the most recent zoning adoption.” See Miller, 1976-NMSC-052, ¶ 15 (noting that in 

order to show a change in community conditions, there must be a substantial change in 

the character of the neighborhood “since the original zoning to such an extent that the 

reclassification or change ought to be made”). The Board has not challenged this aspect 

of the district court’s decision on appeal to this Court, and has not directed us to any 

evidence in the record of post-2017 activity supporting its finding that a change in

conditions justify the zoning change. Consequently, we affirm the district court’s 

determination that the Board’s action was not supported by substantial evidence. 

{7} The Board argues that even if the change in condition analysis fails, its decision 

is affirmable under the third justification, that the change is advantageous to the 

community. See Albuquerque Commons, 2008-NMSC-025, ¶ 30. We note that the 

Board does not appear to have relied on this justification when reaching its decision. 

Nevertheless, on the merits, the “public need” justification also fails because it is 

unsupported by substantial evidence in the record. The Court in Albuquerque Commons

noted that “the proof in such a case would have to show, at a minimum, that (1) there is 

a public need for a change of the kind in question, and (2) that need will be best served 

by changing the classification of the particular piece of property in question as 

compared with other available property.” Id. (internal quotation marks and citation 

omitted). While the Board argues that the proposed RV storage facility would “fill the 
need of the surrounding community, as there is limited storage of this type that is not 

already at capacity available in this area,” it has not pointed to any evidence in the 

record supporting the second prong. The Board’s briefing likewise fails to address how 

this need will be best served by changing the classification of this particular piece of 

property. Consequently, the Board has not demonstrated that the zoning change was 

justified based on the benefit to the community under the criteria required by 

Albuquerque Commons.

{8} In sum, after a thorough review of the parties’ briefs and a whole record review of 

the proceedings below, we affirm the district court’s order reversing the Board’s decision 

and denying Picacho Hills’ application for a zone change. The Board has not 

demonstrated that the zoning change was justified under any of the criteria set forth in 

Albuquerque Commons and Miller, or that the district court erred in concluding that the 

Board’s actions are arbitrary, capricious, and not supported by substantial evidence. 

CONCLUSION

{9} We affirm the district court’s order reversing the Board’s decision.

{10} IT IS SO ORDERED. 

MEGAN P. DUFFY, Judge

WE CONCUR:

JACQUELINE R. MEDINA, Judge

GERALD E. BACA, Judge