Informing a county commission of legal intent.

[NeilTheCop]

What is the name of your state? New Mexico
I hope you can handle a War and Peace epic.
Back in 2014 a neighbor began operating a trucking company out of his house. Beginning at about 4am every day a fleet of between 10 and 15 semi’s towing belly dump trailers would noisily pass my house. They would also be accompanied by 2 or 3 service vehicles loaded with compressors, spare tires etc.
I contacted the county and they said that the property is not zoned industrial but agricultural/residential, and they sent him a letter telling him to stop. He ignored the letter and instead applied for a zoning variance. I attended the public meeting and voiced my objections and the commission agreed and denied the variance. The commission did however give him 12 months to find a new location for his trucks.
At the end of the 12 months the owner of the trucking company asked for an extension. The commission asked why he was having difficulty finding an alternative location, to which the owner said that he hadn’t even looked for one. The extension was denied.
The trucks continued and a month later at the next meeting the owner was back again this time applying for a zoning change from agricultural/residential to industrial, to not only allow the parking of trucks but the repair of them as well. I again objected and again the commission denied the application and told him to move his trucks.
A few months later an application was made by another person to change the zoning on a parcel of land from agricultural/residential to industrial. The idea was that if the application was approved the owner of the trucking company would then buy the rezoned property and move his trucking company to it. The commission granted the rezoning and they gave the trucking company 90 days for the sale to be completed and the trucks to be moved.
90 days later he’s back asking the commissioners for a 6 month extension. During the meeting the owner admitted that he had no intention of moving his trucks out of his residence because operating out of his house was more convenient for himself and his drivers.
All of these statements are indisputable as they were recorded in the minutes of each meeting and available as a public record.
During this time the original manager of planning and zoning retired and was replaced. The new manager had no idea what was going on but researched the situation and passed the info onto the District Attorney for legal action.
That was a few months back and even after sending registered letters to the DA I have yet to receive a reply. I can search the on-line court filings but there is no record of any action being taken.
Now to the question. Before requesting a writ of mandamus against the commission is it permissible to inform the commission of my intent in the hope that they will act rather than having to explain their lack of action to a judge?

 

[HighwayMan]

Why didn't you just add this to your other thread?

 

[quincy]

Why didn't you just add this to your other thread?

Links to two related threads:

https://forum.freeadvice.com/threads/tolling-the-statute-of-limitations.649065/
https://forum.freeadvice.com/threads/offshoot-of-my-nuisance-claim.651275/

 

[Taxing Matters]

Now to the question. Before requesting a writ of mandamus against the commission is it permissible to inform the commission of my intent in the hope that they will act rather than having to explain their lack of action to a judge?

Writ of mandamus for the commission to do what, exactly?

 

[NeilTheCop]

Writ of mandamus for the commission to do what, exactly?

To enforce the local ordinances, which is their job.
I can't cut and paste, but it's clearly written that it's the duty of the commission and the county enforcement officers to enforce the ordinances.
Page 3 to 8.
https://www.co.chaves.nm.us/DocumentCenter/View/573/Chaves-County-Zoning-Ordinance-2018Then there's
https://law.justia.com/codes/new-mexico/2013/chapter-44/article-2/section-44-2-4/And
https://digitalrepository.unm.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1334&context=nmlrFinally a New Mexico Supreme court decision
https://scholar.google.com/scholar_case?case=9423512442996621471&q=writ+of+mandamus+new+mexico&hl=en&as_sdt=4,32

 

[NeilTheCop]

Links to two related threads:

https://forum.freeadvice.com/threads/tolling-the-statute-of-limitations.649065/
https://forum.freeadvice.com/threads/offshoot-of-my-nuisance-claim.651275/

This is totally different and nothing to do with the civil case I have at the moment.

 

[quincy]

This is totally different and nothing to do with the civil case I have at the moment.

Then why in your original post did you go into the history, that has been detailed in your other postings, if there is no connection?

 

[NeilTheCop]

Then why in your original post did you go into the history, that has been detailed in your other postings, if there is no connection?

None at all. One is a farmer who built a road next to my house to haul manure and the other is just someone who decided he was going to use his house as a base for his expanding trucking company. To the best of my knowledge he hauls gravel, but at 4am it's difficult to see.
Neither issues are connected.

 

[quincy]

None at all. One is a farmer who built a road next to my house to haul manure and the other is just someone who decided he was going to use his house as a base for his expanding trucking company. To the best of my knowledge he hauls gravel, but at 4am it's difficult to see.
Neither issues are connected.

Interesting.

Read your thread (the "tolling" thread) from post #130 on. Writ of mandamus was discussed in some depth by Taxing Matters.

Similar information on writs of mandamus was provided you in your 2018 thread on your problem with noisy trucks (https://forum.freeadvice.com/threads/what-is-the-normal-time-for-a-judge-to-make-a-decision.646177/) with the noisy trucks also the subject of your 2017 thread: https://forum.freeadvice.com/threads/rezoning.630820/

You might benefit from reading your own threads. And you might want to consider moving.

 

[Taxing Matters]

To enforce the local ordinances, which is their job.

But it is a job that they have discretion in carrying out. Enforcement of the law is a not ministerial duty that the law imposes on the commission. I understand you used to be a cop, and you know cops have discretion in carrying out their duties. It's the same thing here. And I quoted the standard for mandamus in New Mexico in the other thread as follows:

A writ of mandamus may be issued “only to force a clear legal right against one having a clear legal duty to perform an act and where there is no other plain, speedy and adequate remedy in the ordinary course of law.” Brantley Farms v. Carlsbad Irrigation Dist., 1998–NMCA–023, ¶ 16, 124 N.M. 698, 954 P.2d 763; NMSA 1978, § 44–2–5 (1884); NMSA 1978, § 44–2–4 (1884) (stating mandamus “may be issued ... to compel the performance of an act which the law specially enjoins as a duty.”). A writ of mandamus applies to ministerial duties—those arising when the law dictates that “a public official must act when a given state of facts exist”—and is inappropriate “when the matter has been entrusted to the judgment or discretion of the public officer.” Mimbres Valley Irrigation Co. v. Salopek, 2006–NMCA–093, ¶ 11, 140 N.M. 168, 140 P.3d 1117.​

Nat'l Educ. Ass'n of New Mexico v. Santa Fe Pub. Sch., 2016-NMCA-009, ¶ 17, 365 P.3d 1, 6–7. I think you'll find that if you sue for mandamus in this instance you will lose for that reason: when they have discretion in how they do their job, there can be no mandamus issued.

 

[NeilTheCop]

But it is a job that they have discretion in carrying out. Enforcement of the law is a not ministerial duty that the law imposes on the commission.

https://law.justia.com/codes/new-mexico/2015/chapter-3/article-21/section-3-21-10/"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. "
No discretion there, they shall enforce ordinances, which they are not doing by allowing the trucking operation to continue.

 

[NeilTheCop]

You might benefit from reading your own threads. And you might want to consider moving.

Reading my old threads yes, moving, not a chance. I will not be driven out.

 

[NeilTheCop]

There is a planning and zoning meeting tomorrow, which I will attend and ask why the trucks are still being allowed to operate despite the numerous zoning variance denials.

 

[quincy]

They shall be the ones to enforce. They may take action.

Seriously, Neil, stop creating new threads - and read what has already been provided you in the way of information.

 

[Taxing Matters]

https://law.justia.com/codes/new-mexico/2015/chapter-3/article-21/section-3-21-10/"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. "
No discretion there, they shall enforce ordinances, which they are not doing by allowing the trucking operation to continue.

The wording of the statute does not make enforcement ministerial leaving no discretion to the commission. It simply tells you who is authorized to enforce them. No court is going to say that the commission must enforce every violation of the code, no matter how small, nor does the statute specify the exact manner of enforcement. There are not a lot of things that government does that are purely ministerial in nature. That is one reason why mandamus is so rarely sought, and very rarely granted. A clerk recording a document that the law says must be recorded would be one, since there is no room for discretion there. But in enforcement of the law, there are a lot of decisions that must be made and discretion exercised. The law does not provide a detailed handbook telling the commission what to do in every single case, nor could it. There are just too many possibilities.