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Informing a county commission of legal intent.

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This would then mean that if a zoning variance is denied all that the person who wanted the variance has to do is ignore the commission, as there is nothing they can do about it.
Makes no sense really.
 


Zigner

Senior Member, Non-Attorney
This would then mean that if a zoning variance is denied all that the person who wanted the variance has to do is ignore the commission, as there is nothing they can do about it.
Makes no sense really.
That's not what it means.
 

PayrollHRGuy

Senior Member
This would then mean that if a zoning variance is denied all that the person who wanted the variance has to do is ignore the commission, as there is nothing they can do about it.
Makes no sense really.
No, it means there is nothing that MUST be done about it.
 

quincy

Senior Member
This would then mean that if a zoning variance is denied all that the person who wanted the variance has to do is ignore the commission, as there is nothing they can do about it.
Makes no sense really.
The commission can choose to enforce the violation. They can choose not to.

Resources are not unlimited so money often must go toward addressing those violations that are most pressing. This is true in all areas of the law.
 
Ordinance Enforcement Officer.
Duties.
The ordinance enforcement officers duties shall include, but not be limited to seeing that the requirements of Chaves County Ordinances, regulations, master plans, land use plans, or land use permit systems are carried out and enforced.

I looked everywhere but can't find any small print that says "But only if they feel like it"
 

Zigner

Senior Member, Non-Attorney
Ordinance Enforcement Officer.
Duties.
The ordinance enforcement officers duties shall include, but not be limited to seeing that the requirements of Chaves County Ordinances, regulations, master plans, land use plans, or land use permit systems are carried out and enforced.

I looked everywhere but can't find any small print that says "But only if they feel like it"
You are being intentionally obtuse here. Liken it to a police officer with a similar job description (relating to law enforcement). Do you think they have to give EVERY speeder a ticket? That would be an absurd proposition, just as your proposition that the ordinance enforcement officers have a legal requirement to enforce every instance of a code violation.
 

quincy

Senior Member
Ordinance Enforcement Officer.
Duties.
The ordinance enforcement officers duties shall include, but not be limited to seeing that the requirements of Chaves County Ordinances, regulations, master plans, land use plans, or land use permit systems are carried out and enforced.

I looked everywhere but can't find any small print that says "But only if they feel like it"
Read what was linked to previously, Neil, and what was discussed at some length in your other threads.

You might want to have an attorney in your area help you at this point as you are having difficulty, apparently, with the difference between "shall" (required) and "may" (discretionary).
 

PayrollHRGuy

Senior Member
Ordinance Enforcement Officer.
Duties.
The ordinance enforcement officers duties shall include, but not be limited to seeing that the requirements of Chaves County Ordinances, regulations, master plans, land use plans, or land use permit systems are carried out and enforced.

I looked everywhere but can't find any small print that says "But only if they feel like it"
Neil, did you use to be a cop as you screen name implies? If did you make an arrest for every single violation of the law you saw?
 
Neil, did you use to be a cop as you screen name implies? If did you make an arrest for every single violation of the law you saw?
I did not, as it was clearly stated in policy that we were allowed to use officer discretion in certain circumstances. The enforcement officer has been given no such discretion that I can find.
 

Zigner

Senior Member, Non-Attorney
The enforcement officers do their work at the direction and discretion of the commission.
 

Zigner

Senior Member, Non-Attorney
I did not, as it was clearly stated in policy that we were allowed to use officer discretion in certain circumstances. The enforcement officer has been given no such discretion that I can find.
A civil job description does not give rise to a cause of action on your part.
 

quincy

Senior Member
I did not, as it was clearly stated in policy that we were allowed to use officer discretion in certain circumstances. The enforcement officer has been given no such discretion that I can find.
Neil, you even linked to the law earlier ... but you only quoted the portion that you think supports your argument.

Read the ENTIRE Section 3-21-10. Read where it says "shall." Read where it says "may institute any appropriate action ..."

The word "may" makes any action taken by the commission discretionary.

Here is the link again (2017 version): https://law.justia.com/codes/new-mexico/2017/chapter-3/article-21/section-3-21-10/

If you can't understand the difference, you really should seek help from an attorney in your area.
 
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.
 

quincy

Senior Member
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.
Ah. Well ... that was a mistake. :)
 
"The act to be compelled by mandamus must be ministerial which has been defined as to a public official as "an act or thing which he is required to perform by direction of law upon a given state of facts being shown to exist, regardless of his own opinion as to the propriety or impropriety of doing the act in the particular case." State v. Walker, 60 N.M. 459, 463, 292 P.2d 329, 332 (1956). These acts and duties under them are no less ministerial because the public official, upon whom the duty is enjoined, may have to satisfy himself as to the existence of facts necessary to require his action, and where he refuses to act after such a determination is made, mandamus is the proper remedy. Lorenzino v. James, 18 N.M. 240, 131 P. 1172 (1913). Where he refuses or delays, mandamus will issue to compel acts committed to his discretion if the law requires him to act one way or another. The writ will not, however, direct the performance of the particular act from among two or more allowed alternatives. See State ex rel. Castillo Corp. v. New Mexico St. T. Com'n., 79 N.M. 357, 443 P.2d 850 (1968). "
https://scholar.google.com/scholar_case?case=155600382529202615&q=el+dorado+at+santa+fe+inc+v+bd+of+cty+com'rs&hl=en&as_sdt=6,32
 

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