Informing a county commission of legal intent.

[quincy]

Are you just trying to increase your post count?

 

[NeilTheCop]

Are you just trying to increase your post count?

I'm going for the record on how many times it's suggested I see an attorney

 

[quincy]

I'm going for the record on how many times it's suggested I see an attorney

Haha. Add one more time here.

 

[Taxing Matters]

you are correct. Having read
A. Sections 3-21-1 through 3-21-14 NMSA 1978, and any ordinance adopted pursuant to these sections, shall be enforced, by the zoning authority having jurisdiction, as municipal ordinances are enforced.
I didn't read any further.

That statute tells you (1) that the zoning authority that has jurisdiction is the one that is designated to enforce NMSA §§ 3-21-1 through 3-21-14 and that they shall be enforced "as municipal ordinances are enforced." As you know, a cop enforcing a municipal ordinance has discretion whether to issue the citation or not. The same would be true of the commission here, since the law is to be enforced like municipal ordinances are enforced. So even this limited part of the statute does not help you with a mandamus claim.

And you cannot rely on just a single sentence in a statute; you have to read the whole thing. That's what the court will do. And when you do that, you see what quincy aptly pointed out, that the statute refers to the powers granted as permissive, i.e. what the commission MAY do. The entire tone of the statute is permissive; it is granting the power to enforce state statutes to a local body. There is no way that you will get the court to say that enforcement of those state statutes is a ministerial act, i.e. one that that law leaves the enforcing agency or person absolutely no discretion in carrying out. Enforcement always involves a measure of judgment and the application of discretion in whether and how to handle the particular alleged violation. You know that from being a cop, you exercised discretion probably on a daily basis. It will be no different here, no matter how much you would like it to be different to provide you an easy solution to yet another one of your neighbor problems. I think you'll waste your time and money pursuing a mandamus action that is pretty much guaranteed to be denied.

And really, if you have this much problems with neighbors, maybe it is time to think about moving. Suing your neighbors and encouraging enforcement action, even if successful, will certain make your neighbors align against you, with the prospect of even more unpleasant dealings with them in the future. If it was just one neighbor I had a problem with, maybe I'd stay. But if I'm having problems with multiple neighbors, I'd start looking for a new place to live. Life is too short to spend a considerable part of it just battling out things with neighbors.

 

[Zigner]

you are correct. Having read
A. Sections 3-21-1 through 3-21-14 NMSA 1978, and any ordinance adopted pursuant to these sections, shall be enforced, by the zoning authority having jurisdiction, as municipal ordinances are enforced.
I didn't read any further.

The "shall" means that any enforcement action will be in the same method as municipal ordinances are enforced, not that enforcement action is required.

 

[Zigner]

That statute tells you ...

Your post was on page 3 but I responded to a post on page 2. You are, of course, correct

 

[quincy]

... And really, if you have this much problems with neighbors, maybe it is time to think about moving ...

There might even be a bidding war on Neil's property, with one neighbor wanting the property to store all of his trucks and one neighbor wanting the property to store his manure.

I agree that life is far too short to spend it fighting with neighbors.

 

[NeilTheCop]

Sorry to end this thread but..
I attended the planning and zoning meeting this evening and the mere mention of mandamus evoked a very strong response.
I have been assured that the trucking operation will be stopped as soon as possible. One of the commissioners even smiled, a very rare and most disturbing occurrence. I hope his face will not be too sore in the morning.

 

[quincy]

Interesting. It sounds promising for you.

 

[Taxing Matters]

Sorry to end this thread but..
I attended the planning and zoning meeting this evening and the mere mention of mandamus evoked a very strong response.

If it was the mention of mandamus that did it then the commissioners obviously didn't know the case law on it. I would hope instead they were motivated to do it because they thought it the right thing to do. Of course, there is still the matter of them actually following through on the promise to end the trucking. Hopefully they do, but for politicians talk is cheap...

If it works though then congratulations on resolving one of your neighbor problems.

 

[NeilTheCop]

If it was the mention of mandamus that did it then the commissioners obviously didn't know the case law on it. I would hope instead they were motivated to do it because they thought it the right thing to do. Of course, there is still the matter of them actually following through on the promise to end the trucking. Hopefully they do, but for politicians talk is cheap...

If it works though then congratulations on resolving one of your neighbor problems.

Thank you. The biggest reaction was from a retired District Court judge who now sits on the comission.

 

[OpenLaw]

Thank you. The biggest reaction was from a retired District Court judge who now sits on the comission.

"A. Sections 3-21-1 through 3-21-14 NMSA 1978, and any ordinance adopted pursuant to these sections, shall be enforced, by the zoning authority having jurisdiction, as municipal ordinances are enforced " What I am curious about is if the comma modifies the receiving action which makes the comma ambiguous. The Writ case law citation by a previous user was very accurate. Perhaps you should hire an Attorney.

 

[quincy]

"A. Sections 3-21-1 through 3-21-14 NMSA 1978, and any ordinance adopted pursuant to these sections, shall be enforced, by the zoning authority having jurisdiction, as municipal ordinances are enforced " What I am curious about is if the comma modifies the receiving action which makes the comma ambiguous. The Writ case law citation by a previous user was very accurate. Perhaps you should hire an Attorney.

The original poster said the matter has been resolved (or a satisfactory resolution was promised).