N.M. Stat. » Chapter 3 — Municipalities
New Mexico Statutes

N.M. Stat. § 3-21-8 (2026)

Appeals to zoning authority; grounds; stay of proceedings

✓ laws through the 2025 session (retrieved May 2026)
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A. The zoning authority shall provide by resolution the procedure to be followed in considering appeals allowed by this section.

B. Any aggrieved person or any officer, department, board or bureau of the zoning authority affected by a decision of an administrative officer, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or ordinance, resolution, rule or regulation adopted pursuant to these sections may appeal to the zoning authority. An appeal shall stay all proceedings in furtherance of the action appealed unless the officer, commission or committee from whom the appeal is taken certifies that by reason of facts stated in the certificate, a stay would cause imminent peril of life or property. Upon certification, the proceedings shall not be stayed except by order of district court after notice to the official, commission or committee from whom the appeal is taken and on due cause shown.

C. When an appeal alleges that there is error in any order, requirement, decision or determination by an administrative official, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or any ordinance, resolution, rule or regulation adopted pursuant to these sections, the zoning authority by a majority vote of all its members may:

(1) authorize, in appropriate cases and subject to appropriate conditions and safeguards, variances or special exceptions from the terms of the zoning ordinance or resolution:

(a) that are not contrary to the public interest;

(b) where, owing to special conditions, a literal enforcement of the zoning ordinance will result in unnecessary hardship;

(c) so that the spirit of the zoning ordinance is observed and substantial justice done; and

(d) so that the goals and policies of the comprehensive plan are implemented; or

(2) in conformity with Sections 3-21-1 through 3-21-14 NMSA 1978:

(a) reverse any order, requirement, decision or determination of an administrative official, commission or committee;

(b) decide in favor of the appellant; or

(c) make any change in any order, requirement, decision or determination of an administrative official, commission or committee. History: 1953 Comp., § 14-20-6, enacted by Laws 1965, ch. 300; 1979, ch. 256, § 1; 1983, ch. 160, § 1; 2008, ch. 64, § 1.

ANNOTATIONS

Cross references. — For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

For scope of review of the district court, see Zamora v. Vill. of Ruidoso Downs, 120 N.M. 778, 907 P.2d 182 (1995).

The 2008 amendment, effective May 14, 2008, in Subsection C(1), authorized special exceptions during appeals and added Subsection C(1)(d).

Due process. — Administrative hearings in zoning cases are quasi judicial hearings in which the administrative body must adhere to such requisite procedural protections as the particular situation demands. At a minimum, witnesses must be sworn and subject to cross-examination. State ex rel. Battershell v. City of Albuquerque, 1989-NMCA-045, 108 N.M. 658, 777 P.2d 386.

"Aggrieved person" defined. — To be aggrieved, a party must have a personal or pecuniary interest or property right adversely affected by the judgment. The party's interest must be an immediate, pecuniary and substantial consequence of the judgment, not merely nominal or remote. Webb v. Fox, 1987-NMCA-050, 105 N.M. 723, 737 P.2d 82.

A zoning applicant who possesses a recognizable right or interest in the property is an aggrieved person with standing to appeal. Webb v. Fox, 1987-NMCA-050, 105 N.M. 723, 737 P.2d 82.

Zoning commission's denial of rezoning petition constituted a "decision" for purposes of appeal to the city commission. Corondoni v. City of Albuquerque, 1963- NMSC-146, 72 N.M. 422, 384 P.2d 691.

Availability of injunctive relief. — Injunctive relief is not available to appeal a zoning decision when there is an adequate remedy at law, such as the method provided for appealing a zoning decision under Subsection B of this section and 3-21-9A NMSA 1978. State ex rel. Baxter v. Egolf, 1988-NMCA-047, 107 N.M. 315, 757 P.2d 371.

Special exceptions are part of comprehensive plan. — A county ordinance which among other things establishes certain limited special exceptions is an integral part of the plan required under 3-21-5 NMSA 1978, and the main objectives of requiring that a special permit be obtained before a use of land is commenced are to protect adjoining property and to insure the orderly and efficient development of the community. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233. "Special exception," "special permit" and "use permitted subject to administrative approval" are qualitatively the same, each involving the use which is permitted rather than proscribed by the zoning regulations. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.

Exceptions and variances distinguished. — Exceptions may be treated as a legislative process or the exercise of a legislative function, the conditions for which must be found in the zoning ordinance and may not be varied, while variances may be treated as an exercise of the judicial function, whereby literal enforcement of ordinances may be disregarded. A variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment, while an exception allows him to put his property to a use which the enactment expressly permits. While exceptions are allowable to serve the general good and welfare rather than individual interests merely, a variance is a relaxation of an ordinance to alleviate conditions peculiar to particular property. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.

A city council has broad statutory authority to grant a variance. Downtown Neighborhoods Ass'n v. City of Albuquerque, 1989-NMCA-091, 109 N.M. 186, 783 P.2d 962.

"Unnecessary hardship", which has been given special meaning by courts considering a zoning authority's power to grant a variance, ordinarily refers to circumstances in which no reasonable use can otherwise be made of the land. The exact showing necessary to prove unnecessary hardship varies from case to case, and a city council must make the initial determination by considering all of the relevant circumstances. However, it is clear that a showing that the owner might receive a greater profit if the variance is granted is not sufficient justification in itself for a variance. Downtown Neighborhoods Ass'n v. City of Albuquerque, 1989-NMCA-091, 109 N.M. 186, 783 P.2d 962.

Historical designation does not create unnecessary hardship. — Designation of a house as historically significant does not in and of itself answer the ultimate question of unnecessary hardship. Downtown Neighborhoods Ass'n v. City of Albuquerque, 1989- NMCA-091, 109 N.M. 186, 783 P.2d 962.

Cities have power to impose reasonable conditions on variances. Singleterry v. City of Albuquerque, 1981-NMSC-037, 96 N.M. 468, 632 P.2d 345.

Ordinance may be more restrictive. — Although the statutory requirements for authorizing variances listed in Subsection C are less restrictive than those under the ordinance, no preemption occurs unless the ordinance requirements conflict with the statute. Gould v. Santa Fe County, 2001-NMCA-107, 131 N.M. 405, 37 P.3d 122.

Cities may require violation of restrictive covenant. — In its power to attach reasonable conditions to grants of variances, a zoning authority may require a landowner to fulfill a condition which would violate a restrictive covenant. Singleterry v. City of Albuquerque, 1981-NMSC-037, 96 N.M. 468, 632 P.2d 345.

Authority of air quality control board to issue special use permits. — There can be no doubt of a county air quality control board's authority to entertain applications for special use permits, and to issue or withhold them after consideration. McCabe v. Hawk, 1982-NMCA-039, 97 N.M. 622, 642 P.2d 608, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Authorizing overnight campground in agricultural zone held improper. — The granting of a special use permit to landowner by the county commissioners, authorizing the construction and maintenance of an overnight campground in an A-2 rural agricultural zone, was an improper exercise of power, since such a use was not permitted under the ordinance passed pursuant to this section, and the commissioners had no authority under the specific provisions of the ordinance to issue this special use permit. Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.

Overnight campgrounds not included in trailer court. — Where a county ordinance passed pursuant to this section authorizes special use permits for trailer courts, the supreme court could not discern an intention in the ordinance to include overnight campgrounds in the category of "trailer court." Burroughs v. Board of Cnty. Comm'rs, 1975-NMSC-051, 88 N.M. 303, 540 P.2d 233.

Law reviews. — For note, "County Regulation of Land Use and Development," see 9 Nat. Resources J. 266 (1969).

For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983).

For annual survey of New Mexico law relating to property, see 13 N.M.L. Rev. 435 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Cross-examination: right to cross- examination of witnesses in hearings before administrative zoning authorities, 27 A.L.R.3d 1304.

Zoning: validity and construction of provisions of zoning statute or ordinance regarding protest by neighboring property owners, 7 A.L.R.4th 732.

Standing of civic or property owners' association to challenge zoning board decision (as aggrieved party), 8 A.L.R.4th 1087.

Notes of Decisions
Cited in 15 cases (1 in the last 5 years), 1981–2021 · leading case: Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989).
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Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). · cites it 12× “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
Deerman v. Bd. of Cnty. Commissioners of the Cnty. of Dona Ana, 864 P.2d 317 (N.M. Ct. App. 1993). · cites it 8× “For the foregoing reasons, we hold that the district court lacked authority to grant relief pursuant to Rule 60(B) on the ground that the county ordinance was invalid under Section 3-21-8. For the same reasons, we also reject Intervenors’ arguments in support of additional…”
Gould v. Santa Fe Cnty., 2001-NMCA-107, 37 P.3d 122. · cites it 6× “EZA Authorized to Grant Variances by Statute {17} Apparently recognizing that the ordinance presents a severe obstacle to their position, Respondents argue that NMSA 1978, § 3-21-8 (1983), rather than the zoning ordinance, controls in this case and that it allows the EZA to…”
Webb v. Fox, 737 P.2d 82 (N.M. Ct. App. 1987). · cites it 16× “The issues raised by plaintiffs are: (1) whether F & W Enterprises is an “aggrieved person” under NMSA 1978, Section 3-21-8(B) (Repl.1985); (2) whether the decision of the board was beyond the scope of its authority and arbitrary and capricious; and (3) whether an ex parte…”
Singleterry v. City of Albuquerque, 632 P.2d 345 (N.M. 1981). · cites it 4× “Section 3-21-8, N.M.S.A. 1978 (Cum.Supp. 1980), provides that a zoning authority may: (1) authorize in appropriate cases and subject to appropriate conditions and safeguards, special exceptions to the terms of the zoning ordinance or resolution: (a) which are not contrary to the…”
TBCH, INC. v. City of Albuquerque, 874 P.2d 30 (N.M. Ct. App. 1994). · cites it 4× “See NMSA 1978, § 3-21-8 (Repl.1985). A hearing was held in October 1991, the Commission agreed with the zoning manager, and the declaratory ruling was adopted as official policy.”
Bogan v. Sandoval Cnty. Plan. & Zoning Comm'n, 890 P.2d 395 (N.M. Ct. App. 1994). · cites it 14× “Nevertheless, we conclude that the PZC decision was voidable rather than void. Any other decision would negate the legislative decision to authorize an appeal to the Board and to allow the Board to provide for the procedure to be followed in taking such an appeal.”
Dugger v. City of Santa Fe, 834 P.2d 424 (N.M. Ct. App. 1992). · cites it 2× “NMSA 1978, § 3-21-8 (Repl.Pamp.1985); Corondoni v.”
Mechem v. City of Santa Fe, 634 P.2d 690 (N.M. 1981). · cites it 2× “Section 3-21-8, N.M.S.A. 1978 (Cum.Supp. 1981), allows the City to grant special exceptions in certain situations: C.”
Gonzalez v. Whitaker, 643 P.2d 274 (N.M. Ct. App. 1982). · cites it 2× “4) That Plaintiff failed to file a petition in District Court within thirty days as required by Sections 3-21-8 and 3-21-9, NMSA 1978. 5) That the .”
State ex rel. Baxter v. Egolf, 757 P.2d 371 (N.M. Ct. App. 1988). · cites it 3× “See NMSA 1978, §§ 3-21-8(B) through -9(A) (Repl.”
Citizens for Los Alamos, Inc. v. Inc. Cnty. of Los Alamos, 725 P.2d 250 (N.M. 1986). · cites it 2× “Thereafter, pursuant to NMSA 1978, Section 3-21-8 (Repl.Pamp. 1985), an appeal of the Commission’s February 19, 1985 decision was taken to the County Council of Los Alamos County (County).”
Show all 15 citing cases →
N.M. Stat. § 3-21-8(A): 3 cases
Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
Bogan v. Sandoval Cnty. Plan. & Zoning Comm'n, 890 P.2d 395 (N.M. Ct. App. 1994). “Nevertheless, we conclude that the PZC decision was voidable rather than void. Any other decision would negate the legislative decision to authorize an appeal to the Board and to allow the Board to provide for the procedure to be followed in taking such an appeal.”
Bogan v. Sandoval Cty. Plan. & Zon. Com'n, 890 P.2d 395 (N.M. Ct. App. 1994).
N.M. Stat. § 3-21-8(A)(2008): 1 case
Carlton v. City of Albuquerque, No. 32,796 (N.M. Ct. App. Sept. 30, 2013).
N.M. Stat. § 3-21-8(B): 5 cases
Webb v. Fox, 737 P.2d 82 (N.M. Ct. App. 1987). “The issues raised by plaintiffs are: (1) whether F & W Enterprises is an “aggrieved person” under NMSA 1978, Section 3-21-8(B) (Repl.1985); (2) whether the decision of the board was beyond the scope of its authority and arbitrary and capricious; and (3) whether an ex parte…”
Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
State ex rel. Baxter v. Egolf, 757 P.2d 371 (N.M. Ct. App. 1988). “See NMSA 1978, §§ 3-21-8(B) through -9(A) (Repl.”
Bogan v. Sandoval Cnty. Plan. & Zoning Comm'n, 890 P.2d 395 (N.M. Ct. App. 1994). “Nevertheless, we conclude that the PZC decision was voidable rather than void. Any other decision would negate the legislative decision to authorize an appeal to the Board and to allow the Board to provide for the procedure to be followed in taking such an appeal.”
Bogan v. Sandoval Cty. Plan. & Zon. Com'n, 890 P.2d 395 (N.M. Ct. App. 1994).
N.M. Stat. § 3-21-8(C): 2 cases
Gould v. Santa Fe Cnty., 2001-NMCA-107, 37 P.3d 122. “EZA Authorized to Grant Variances by Statute {17} Apparently recognizing that the ordinance presents a severe obstacle to their position, Respondents argue that NMSA 1978, § 3-21-8 (1983), rather than the zoning ordinance, controls in this case and that it allows the EZA to…”
Deerman v. Bd. of Cnty. Commissioners of the Cnty. of Dona Ana, 864 P.2d 317 (N.M. Ct. App. 1993). “For the foregoing reasons, we hold that the district court lacked authority to grant relief pursuant to Rule 60(B) on the ground that the county ordinance was invalid under Section 3-21-8. For the same reasons, we also reject Intervenors’ arguments in support of additional…”
N.M. Stat. § 3-21-8(C)(2): 1 case
Deerman v. Bd. of Cnty. Commissioners of the Cnty. of Dona Ana, 864 P.2d 317 (N.M. Ct. App. 1993). “For the foregoing reasons, we hold that the district court lacked authority to grant relief pursuant to Rule 60(B) on the ground that the county ordinance was invalid under Section 3-21-8. For the same reasons, we also reject Intervenors’ arguments in support of additional…”
N.M. Stat. § 3-21-8(C)(l): 1 case
Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
N.M. Stat. § 3-21-8(C)(l)(a): 1 case
Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
N.M. Stat. § 3-21-8(C)(l)(b): 1 case
Downtown Neighborhoods Ass'n v. City of Albuquerque, 783 P.2d 962 (N.M. Ct. App. 1989). “This appeal requires us to consider the City Council’s authority under NMSA 1978, Section 3-21-8 (Repl.1985), and Albuquerque, N.”
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