FIRST JUDICIAL DISTRICT COURT

COUNTY OF SANTA FE
STATE OF NEW MEXICO

No. D-101-CV-2010-01287

GALISTEO COMMUNITY ASSOCIATION
A/K/A GALISTEO COMMUNITY CORPORATION,
A New Mexico Nonprofit Corporation,

Appellant,

vs.

BOARD OF COUNTY COMMISSIONERS
OF SANTA FE COUNTY, and

SADDLEBACK RANCH ESTATES, LLC,
A New Mexico Limited Liability Company,

Appellees.

MEMORANDUM OPINION

THIS MATTER comes before the Court on an appeal of a decision of the Board of County
Commissioners of Santa Fe County (or ABoard@) by the Galisteo Community Association, a/k/a
The Galisteo Community Corporation (or AAppellant@). No hearing was requested and no
hearing is needed. See Rule 1-074(O). Appellant challenges the decision on multiple grounds
pursuant to Rule 1-074.R NMRA. Having reviewed the whole record and briefing, this Court
concludes that the Board=s decision is not in accordance with the law. See Rule 1-074.R NMRA;
NMSA 1978, ' 39-3-1.1.D (1999); NMSA 1978, ' 47-6-15.B (1995, amended 2005). The
County=s approval of Saddleback Ranch Estate=s application on a summary basis and without a
master plan is, therefore, invalid and void.
DISCUSSION
This Court=s review is limited to determining whether the Board acted arbitrarily or
FILED IN MY OFFICE
DISTRICT COURT CLERK
7/5/2014 12:39:39 PM
STEPHEN T. PACHECO
Maureen Naranjo

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capriciously, whether its action is supported by substantial evidence, and whether it acted in
accordance with the law and within the scope of its authority. See Rule 1-074.R; ' 39-3-1.1.D;
Paule v. Santa Fe Bd. of County Comm=rs, 2005-NMSC-021, & 26, 138 N.M. 82, 117 P.3d 240;
Atlixco Coalition v. County of Bernalillo, 1999-NMCA-088, &11, 127 N.M. 549, 984 P.2d 796.
The administrative decision will be upheld if the reviewing court is satisfied that it is supported by
the applicable law and substantial evidence in the record as a whole, and that the evidence in the
record demonstrates that the decision is reasonable. See West Old Town Neighborhood Ass=n v.
City of Albuquerque, 1996-NMCA-107, & 11, 122 N.M. 495, 927 P.2d 529; Watson v. Town
Council of Bernalillo, 1991-NMCA-009, & 2, 111 N.M. 374, 805 P.2d 641. The reviewing court
views the whole record in the light most favorable to the administrative decision, drawing every
inference in support of the that decision, while not disregarding conflicting evidence, reweighing
the evidence, nor substituting its judgment for that of the administrative body. See, e.g., New
Mexico Indus. Energy Consumers v. PRC, 2007-NMSC-053, & 24, 142 N.M. 533, 168 P.3d 105;
Atlixco, 1999-NMCA-088, &11.
Whether a decision is in accordance with the law is reviewed de novo, and the reviewing
court is not bound by an administrative body=s interpretation of a statute because it is a matter of
law. See New Mexico Mining Ass=n v. New Mexico Water Quality Control Comm=n,
2007-NMCA-010, & 11, 141 N.M. 41, 150 P.3d 991. A ruling should be reversed if the deciding
body A>unreasonably or unlawfully misinterprets or misapplies the law.=@ Id. (quoting Archuleta
v. Santa Fe Police Dep=t, 2005-NMSC-006, & 18, 137 N.M. 161, 108 P.3d 1019).
Originally, Saddleback Ranch Estates submitted an application seeking approval of a lot
line adjustment for thirty-nine lots within 3,129 acres. RA 00007. It subsequently reduced the

3
number of proposed lots in the application to twenty-nine lots within the same 3,129 acres. RA
00007. Following denial of the amended application for lot line adjustment, it submitted a new
application seeking summary review and approval to subdivide 960 acres of the 3,129 acres into
twenty-four forty-acre lots. RA 00007, 00107, 00249, 00399, 00809. In a January 2010
memorandum, the Development Review Team Leader informed the Board that the applicant Ais
now requesting summary review plat approval for a 24 lot residential subdivision on 960 acres.@
RA 00007. The memorandum instructed the Board that the newly proposed subdivision was
classified as a Type V Subdivision under the Santa Fe County Land Development Code (or
ACode@), Awhich is a subdivision containing 2 to 24 parcels each of which is 10 acres or greater in
size,@ and, consequently, Ashall be submitted to the County for review under Summary Review
Procedures which does not require review by the County Development Review Committee but
only requires final approval by the Board of County Commissioners.@ RA 00007 - 00008.
Appellant asserts that, when counting parcels, the Board should have included the
remainder of the acreage that the developer retained when the land was divided, and that the
proposed subdivision thus exceeds the twenty-four parcels that permit summary review.
Appellant argues that the Board=s failure to count the retained land resulted in the Board
improperly approving the Saddleback Subdivision development through a summary review
procedure, rather than subjecting it to the scrutiny of the full master planning process.
Appellee contends Athe representative for Saddleback Ranch Estates has made it clear that
its application (the subject of this appeal) was solely for approval to develop 24 40-acre lots on 960
acres and nothing more and the applicant did not have any definite future plans to sell or lease the
remainder property.@ Response, at 17. A memorandum to the Board from the Development
Review Team Leader states: AThe applicant admits his desire to develop the remaining

4
undeveloped property[,] however, no plans to do so have been solidified by the Applicant or
applied for at this time.@ RA 00249.
This matter requires interpretation of the Subdivision Act,
1
which is a question of law
calling for de novo review. The Subdivision Act applies to Athe division of a surface area of land,
including land within a previously approved subdivision, into two or more parcels for the purpose
of sale, lease or other conveyance or for building development, whether immediate or future,@
subject to various enumerated exceptions. NMSA 1978, ' 47-6-2.J (1995); see also Lorentzen v.
Smith, 2000-NMCA-067, 129 N.M. 278, 5 P.3d 1082 (analyzing same provision).
Appellee asserts that, A[t]he Subdivision Act is a consumer protection statute, designed to
protect the buyer from formerly unscrupulous land sale practices,@ and reasons that A[i]f there is
not [a] >buyer= of the remainder land, there is no one to protect.@ Response, at 19. However, the
Court of Appeals of New Mexico has observed on more than one occasion that the Act carries
protections for broader public interests. For instance, the court has Acited with approval the
comments of the Attorney General regarding the purpose of the Subdivision Act that >the intent of
the subdivision law was to provide a means for insuring the harmonious development of a
municipality and its environs in order to coordinate proposed developments with existing
municipal plans.@ State v. Cresswell, 1998-NMCA-072, &21, 125 N.M. 276, 960 P.2d 818. The
court has also stated that A[u]nder the Act, those who subdivide the land are required to provide,

1
In footnote 2 of its Response, the Board states: AThe New Mexico Subdivision Act was
amended in 2013. Unless otherwise indicated, the references in this discussion are to the 1996
Subdivision Act which was in effect at the time Saddleback Ranch Estates submitted its
application and when the application was conditionally approved by the Board of County
Commissioners.@ The Board approved the Order approving a Summary Review Procedure of the
application of Saddleback Ranch Estates on August 31, 2010. Although this decision defers to
the Board with regard to the statutory versions cited, the same analysis applies regardless of which
year=s version was applicable.

5
and pay for, the platting and basic infrastructure needed for a community to survive. Without
such amenities, communities can become health hazards and a burden on taxpayers.@ Id. at &2
(emphasis added) (internal citations omitted.). In Lorentzen, the court referenced its previous
analysis and recognition of Amerger@ as Aan analytical device used by the attorney general to
examine the substance, as well as the form, of efforts by illegal subdividers to circumvent the
Subdivision Act and evade their responsibility to provide necessary infrastructure.@
2000-NMCA-067, at & 9 (emphasis added). There, the court addressed issues regarding
purported division of land with an eye to the Act=s purpose, stating that A[p]reventing subterfuge by
unscrupulous developers is the lodestar of the Act,@ and that Awe must keep our sights set on the
ultimate goal: determining whether the common owner is >engaged in an illegal subterfuge
designed to circumvent the laws.=@ See Lorentzen, 2000-NMCA-067, at & 10 (quoting the
Attorney General=s Manual
2
on the Subdivision Act entitled Subdividing Land in New Mexico, A
Guide for Subdividers, Land Use Administrators, Public Officials and Land Purchasers (2d ed.
1984)).

2
Appellee indicates that A[t]he Subdivision Act was substantially amended in 1995@ and
thereby deduces that, A[t]hus, the relevance of the 1984 [version of the Attorney General=s]
Handbook to the radically redrawn 1995 statute is questionable.@ Response, at 18 & fn.4.
However, it is clear that when it decided Lorentzen, the Court of Appeals still regarded the
Handbook as providing useful guidance. Moreover, it appears from the amendments that the
Legislature was generally sweeping in more development activity for scrutiny and attempting to
avoid potential loopholes for developers. For instance, the prior version of the Act required
division of an area of land A>into five or more parcels within three years for the purpose of sale or
lease,=@ before the division was subject to the Act=s requirements, whereas the latter version merely
requires division Ainto two or more parcels. Compare Cresswell, 1998-NMCA-072, at & 2
(quoting Section 47-6-2(I) (1981)), with ' 47-6-2.J (1995). The amendments would seem to
reinforce the previously observed purposes of the Act.



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Under the Act and the Code, the classification of a subdivision dictates the level of scrutiny
to which it must be subjected. A A>type-five subdivision= means any subdivision containing not
more than twenty-four parcels, each of which is ten acres or more in size,@ and may be approved
pursuant to summary review under the Act and the Code. '' 47-6-2.R & 47-6-9.A(16) (1995);
Code Art. Art. V, ' 5.5.1.b. A A>type-four subdivision= means any subdivision containing
twenty-five or more parcels, each of which is ten acres or more in size,@ and requires approval of a
master plan. ' 47-6-2.Q; Code, Art. V, ' 4.4. In its Response, the Board succinctly captures the
import of the classification decision, and what its decision places at stake:
The classification is important because . . . development of a Type IV subdivision
requires approval of a master plan. Code, Article V. Sec. 4.4. A Type V
subdivision is entitled to summary review under the Subdivision Act. Subdivision
Act, NMSA 1978 ' 47-6-9(16) (1995); Code, Article V, 5.5.1.b. If a master plan
was required, the application was procedurally defective.

Response, at 13.
Both Appellant and Appellee urge this Court to look to amendments to the original Act as
support for their positions. Appellant asserts:
[I]n 1995 the New Mexico Subdivision Act was substantially revised to curb a
number of abuses that had developed through the years. The >remainder parcel=
exception in the pre-1995 Act was removed in this revision. The Legislature has
spoken: remainder parcels are no longer to be given a pass from being included in
subdivision lot counts.

Statement, at 10. Appellee asserts:
The Subdivision Act was substantially amended in 1995. For one, the
definition of Asubdivision@ was substantially reworked. But no drastic substantive
change occurred in the statute with respect to remainder parcels. Since July 1,
1996, a Asubdivision@ is defined as the A... division of a surface area of land,
including land within a previously approved subdivision, into two or more parcels
for the purpose of sale, lease ... , whether immediate or future; ...@ Thus, under the
present statute, the reason for a division of land is critical to determining whether
the division is a subdivision or not. If the property is being divided with the intent

7
to Asell or lease,@ even in the future, it is a subdivision. If not, it is not.

Under Section 47-6-2(J) (1995), a remainder is a lot only when it is being
divided for Athe purpose of sale or lease.@ If a remainder is not intended to be sold
or leased, it is not a Asubdivision[.]@ Thus, a remainder lot is not a lot or a
subdivision for purposes of the Subdivision Act, and should not be counted when
determining the classification of the subdivision. . . .

Response, at 16 (emphasis and omissions supplied by the Board).
Although Appellant=s argument may carry some sway, interpreting legislative intent from
alterations made to a previous version of a statute can be a tenuous endeavor. Cf. Cresswell,
1998-NMCA-072, at & 14 (ADefendants argue that the 1995 amendment to the Act is evidence that
the 1973 Act could not have applied to divisions for the purpose of seller-financing, reasoning that
the amendment is presumed to change existing law. Although such a presumption exists, an
amendment may also clarify existing law, rather than change the law.@).
More compelling is the language of the applicable statute itself, particularly in light of the
Act=s recognized purposes. See New Mexico Mining Ass=n, 2007-NMCA-010, at & 12 (AWhen
construing a statute, we begin with the plain language, and we assume that the ordinary meaning of
the words expresses the legislative purpose. If, however, the plain language of a statute creates an
absurd or unreasonable result, we will reject the literal language.@ (Internal citations omitted.)).
Although New Mexico=s higher courts have not construed Section 47-6-2.J in the present context,
case law from other jurisdictions, while not binding authority, offers persuasive direction as to
construing comparable statutory provisions and is consistent with the Act=s purposes as they have
been identified by the Court of Appeals of this state. See Fishback v. County of Ventura, 35 Cal.
Rptr. 3d 199 (Ct. App. 2nd Dist. Div. 6 2005); see generally Mills v. Alta Vista Ranch, LLC, 187
P.3d 627 (Mont. 2008) (rejecting version of the remainder doctrine that would not subject

8
remainder tract left over after division of land to Montana=s Subdivision and Platting Act as
Adef[ying] logic as well as the plain language of the statute@).
For example, in Fishback, the Court of Appeal for the Second District of California
addressed an argument analogous to that of the Board in this matter. There, the court described
the statutory provision at issue as follows:
The 1937 and 1943 acts defined Asubdivision@ as Aany land or portion thereof
shown on the last preceding tax roll as a unit or as contiguous units which is divided
for the purpose of sale, whether immediate or future, by any subdivider into five or
more parcels within any one year period.@

Id. at 202. The court rejected the appellants= reliance on the phrase, Afor the purpose of sale@ for
their argument that Athe retained land was not divided for the purpose of sale.@ Id. The court
reasoned that Afor the purpose of sale@ modifies a Aunit@ or Acontiguous units of land@ and,
therefore, if such Aare divided for the purpose of sale, it is irrelevant that the retained parcel is not
held for the purpose of sale.@ Id. To illustrate its rationale the court provided the following
example: Aif the owner of a unit of land divides it in half, the unit is divided for the purpose of sale
even if the owner intends to sell only one half and keep the other.@ Id.
Much like in Fishback, New Mexico=s statute looks to whether dividing a surface area of
land is for the purpose of sale, not, as the Board has argued, to whether the remainder is being
divided for the purpose of sale or lease. The phrase Afor the purpose of sale, lease, or other
conveyance . . . whether immediate or future@ modifies Adivision a surface area of land,@ that is, the
phrase provides the reason for the division. Although admittedly not as clear as the language of
the California statute, if the Legislature did not intend that dividing the land be the act that is for the
purpose of sell or lease, it could have used language such as Aparcels that are to be sold, leased,
conveyed . . .@ In addition, the explicit exceptions to the definition of Asubdivision@ help elucidate

9
construction of the statute. See ' 47-6-2.J. The exceptions include a myriad of acts of selling
parcels and acts of dividing land, suggesting that the definition of Asubdivision@ would otherwise
include those acts of selling parcels or merely dividing the land. If the Legislature had wanted to
exclude retained land from the parcels resulting from dividing a surface area of land, it could have
included it in the exceptions to the definition of Asubdivision.@ See generally State v. Jackson,
2010-NMSC-032, & 30, 148 N.M. 452, 237 P.3d 754 (AThe more prudent approach is to presume
the Legislature left out what it intended to leave out, and included what it intended to include.@);
Mills, 187 P.3d at 630 (providing persuasive guidance that A[e]xceptions or exemptions to
subdivision review under the Act can not be created by the Legislature=s silence@). The Fishback
court=s example of dividing a unit of land in half is apropos here in New Mexico as wellBthat is, if
a surface area of land is divided in half to sell one of the halves, it is divided for the purpose of sale,
even if the owner only intends to sell that one half and retain the other.
The Board relies in part on Section 47-6-16.B, for its position:
[S]ince 1995, Section 47-6-16(B) of the Subdivision Act has specifically stated that
Aland retained by a subdivider after creating a previous[ ] subdivision@ may be
upgraded and combined with a current application (emphasis added). Obviously,
this section anticipates the fact that remainder land may result from a subdivision. .
. . . The Legislature, by explicitly using the phrase Aland retained@ in the 1995
statute understood that remainder land would exist, either retained as a part of the
approval process prior to 1995, or under the new scheme in the revised statute.

Response, at 17. However, legislative acknowledgment of the existence of retained land does not
amount to excluding it from the count of parcels that result from dividing a surface area of land.
Section 47-6-16.B is not rendered meaningless by counting retained land among the parcels
resulting from a division of land in that the provision would be useful in a variety of scenarios.
Allowing retained land to be upgraded and combined with a current application does not mean the
original division did not count the retained land for classification purposes or that the retained land

10
would be exempt from any other applicable requirement. Again, retained land resulting from a
division of a surface area of land is included in the count of parcels.
Moreover, that interpretation is the only one that would befit the Act=s public policy
purposes recognized by our own Court of AppealsBe.g., ensuring that developers provide adequate
infrastructure for developments and preventing subterfuge designed to circumvent the laws. See
Cresswell, 1998-NMCA-072, at & 21 (indicating that the court had Aobserved that in ascertaining
the intent of the legislature, we look not only to the language of the statute but the objective to be
achieved,@ and that it thus Aread[s] the language of the [Subdivision Act] together with its
amendments and in the context of its purpose@); see also id. at & 1 (concluding as a matter of law
that defendants had created a subdivision under the Act A[a]fter analyzing [the] transaction, as
characterized by Defendants and the district court and in light of the public purpose of the Act@);
see generally Lorentzen, 2000-NMCA-067, at & 11 (referencing Athe strong public policy
undergirding the Subdivision Act@). Although the Board seems to suggest that New Mexico
precedent only looks to whether a developer is attempting to Acircumvent the Subdivision Act@ in
its entirety (Response, at 21), the Act=s purposes apply equally to scrutinizing whether a developer
is attempting to circumvent an onerous requirement in order to employ a more expedient means to
its desired end. Cf. Cresswell, 1998-NMCA-072, at & 21 (indicating that the court had previously
Acited with approval the comments of the Attorney General regarding the purpose of the
Subdivision Act that >the intent of the subdivision law was to provide a means for insuring the
harmonious development of a municipality and its environs in order to coordinate proposed
developments with existing municipal plans@).


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The Legislature chose twenty-five as the number of parcels that require preparation of a
master plan for a reason. Overall, the Act attempts to promote planning and inspection of
planning on the front end of development, rather than waiting until it is well underway and trying
to address issues at that stage, when options that would have been available at the outset have been
foregone. Cf. id. at & 15 (observing in that case that Athe state could not wait for the sales all to
take place and see how many individuals ended up actually owning individual lots, because by
then it could well be too late to compel the necessary improvements@). To allow a developer to
divide land so as to engage in a perfunctory count and slide in under a number that would
otherwise require the developer to provide a big picture via a master plan would thwart the Act=s
objective. That is, to ignore the retained land of over ten acres in size and not count it as a parcel
would allow piecemeal development without submission and scrutiny of a master plan that was
envisioned for larger developments. Significant development would likely already have been
well underway if the Board waits until an application to subdivide the remainder is submitted to
require preparation of a master plan, thereby foregoing opportunities to avert or optimally address
potentially unforeseen problems. Although, the Board argues that A[i]f an abuse of the Act would
result, Section 47-6-16(B) (1995) permits the Board to remedy the abuse by upgrading the earlier
and the new proposed development@ (Response, at 18), that approach would undermine the
front-end, comprehensive, prophylactic planning that girds the Act. The remainder retained by
the developer should have been counted, making the division one of twenty-five parcels of ten or
more acres, rather than twenty-four, and one that thereby requires scrutiny of a master plan.
While this Court=s analysis pursuant to the statutory language and recognized policies of
the Act is decisive, the record and the Board=s argument accentuate the merit of that approach and
the resultant conclusion, as well as why a developer=s stated intent that a retained remainder is not

12
for sale is a flimsy reed on which to rest. Cf. Cresswell, 1998-NMCA-072, at & 20 (in analysis of
merger issue, quoting Attorney General=s Manual for the proposition that A[i]t is the manner in
which a person subdivides the land that must be scrutinized and that ultimately controls the
determination [of whether subdivision has occurred]Bnot the subdivider=s motivation@ (alteration
in original, emphasis added)). The Board contends that the developer does not intend to sell the
retained land, but its own argument and the record itself point to harbingers. For example, the
Board indicates that Athe applicant did not have any definite future plans to sell or lease the
remainder property,@ (Response, at 17 (emphasis added)), and a memorandum to the Board from
the Development Review Team Leader states: AThe applicant admits his desire to develop the
remaining undeveloped property[,] however, no plans to do so have been solidified by the
Applicant or applied for at this time@ (RA 00249). The history of the developer=s applications
also indicates a larger scheme. See, e.g., Response, at 2 (indicating that A[i]n 2008 Saddleback
Ranch Estates submitted an application . . . seeking approval of a lot line adjustment for 39 lots
within 3,129 acres); RA 00007 (letter from Saddleback Ranch that references the A24 home sites
that have been chosen for this initial phase of development@ and stating that A[w]e have a specific
plan in mind for future phases of development@ (emphasis added)). While not essential to this
Court=s conclusionBin that this decision relies on the statute itself and not any special analytical
devices, such as mergerBthe record contradicts the Board=s assertion that Anothing in the record
here establishes such a[n] abuse.@ Compare Response, at 18, with Lorentzen, 2000-NMCA-067,
at & 12.



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CONCLUSION
The Court finds, for the reasons stated herein, that the Board=s decision is not in accordance
with the law. The approval of the Saddleback Ranch Estates= subdivision application without a
master plan is, therefore, invalid and void.
Counsel for Appellant is directed to prepare a Final Order consistent with this opinion,
submit it to opposing counsel for approval as to form, and then, no later than fourteen (14) days
from the date this opinion is filed, to the Court for entry.

__________________________________________
Sarah M. Singleton, District Judge
Division VII

Notice sent electronically through the eservice system on the date of filing to:

Christopher L. Graeser Roberta D. Joe, Assistant County Attorney
chris@chrisgraeser.com rdjoe@santafecountynm.gov