(Specially Concurring).
I concur in the result.
I agree with the majority that the proper respondent in a petition for review under NMSA 1978, Section 3-21-9, was the Village of Jemez Springs. The petition in this case therefore conferred jurisdiction on the district court. See Mitchell v. City of Santa Fe, 99 N.M. 505, 660 P.2d 595 (1983).
From that point on I part company with the majority. The majority opinion seems to say that (1) the applicant for a variance is an indispensable or necessary party to the district court review proceeding and should be joined in the proceeding prior to the expiration of the 30-day time limit in Section 3-21-9, but (2) the district court nevertheless has jurisdiction to add the applicant after the expiration of the time limit. I have several reservations about this approach.
First, I do not agree that an applicant for a variance is always an indispensable party to a review proceeding. To say that a person is indispensable is simply shorthand for saying that the case should be dismissed if the person cannot be joined as a party. See SCRA 1986,1-019(B). I am not prepared to say that when the applicant for a variance cannot be joined in the review proceeding, the petition for review should always be dismissed. Although I agree that there are clear advantages to having the applicant as a participant in the review proceeding, the teaching of C.E. Alexander & Sons Inc. v. D.E.C. International, 112 N.M. 89, 811 P.2d 899 (1991), is that the determination of whether to dismiss an action for failure to join an indispensable party requires balancing of the equities .in the specific factual context of the individual case. Given the great variety of circumstances in which the issue could arise, I cannot say that the equities will invariably favor dismissal.
Second, the majority appears to state that the indispensable party — the applicant for the variance — should be joined within the 30-day period prescribed by Section 3-21-9 for filing a petition for review. I fail to understand why the 30-day time limit should apply to joinder of the applicant for a variance. As the majority and I agree, a proper petition for review was filed in this case within the 30-day time limit. See Mitchell. Neither Section 3-21-9 nor Rule 1-019 requires that anything else be done within the 30-day time limit. It is noteworthy that in Mitchell the applicant for the variance moved to intervene after expiration of the 30-day time limit.
Third, I am not prepared to join the majority’s discussion suggesting that a necessary party to an appeal can be joined after the time for filing an appeal has expired. That area of our law is confusing enough already.
My approach to Applicant’s absence from the review proceeding is rather different from the majority’s. Given that Section 3-21-9, as construed in Mitchell, provides that the Village is the proper respondent to a petition for review, I would hold that the Applicant is entitled to no more than a fair opportunity to intervene. So long as that opportunity has been afforded Applicant, Applicant’s interests in the district court proceeding are fully protected and there is no need to dismiss the proceeding. This is the approach taken by the federal courts under the National Labor Relations Act. When a party to a proceeding before the NLRB seeks judicial review, the sole proper respondent is the NLRB, but others who were parties in the NLRB proceeding may intervene in the judicial review proceeding. See International Union, United Auto., Aerospace & Agric. Implement Workers v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965); Oil, Chem. & Atomic Workers Local Union No. 6-418 v. NLRB, 694 F.2d 1289, 1298 (D.C.Cir.1982). There is a substantial issue as to whether the right to a fair opportunity to intervene includes the right to actual notice of the judicial review proceeding, see Town of Bethlehem v. Tucker, 119 N.H. 927, 409 A.2d 1334 (1979), or whether it is sufficient that participation in the administrative proceeding provides constructive notice of a possible appeal, see Leventhal v. Michaelis, 29 Misc.2d 831, 219 N.Y.S.2d 508, 516 (1961); but there is no question that Applicant has received actual notice in this case.
Because the record before us establishes that Applicant had a fair opportunity to intervene (and, indeed, will be joined on remand), I concur in reversing the district court’s dismissal of the petition for review.