(dissenting.)
I respectfully dissent. The law governing municipal annexations requires that annexed territory be contiguous to the municipality. In my view, the contiguity requirement cannot be evaded by means of a sham or subterfuge, and the record in this case establishes that contiguity was accomplished by such means.
I am not certain of the precise extent to which my views differ from those of the majority. Because the majority opinion fails to address the contention that contiguity cannot be accomplished by means of a sham or subterfuge, it is not clear whether the majority rejects the contention altogether or whether it simply finds no basis for finding a sham or subterfuge in this case. There is also a third possibility. Language in the majority opinion to the effect that annexation by petition is a political process and that judicial intervention is likely to produce inferior results may suggest that the majority believes that judicial review of annexations by petition is limited to constitutional issues. I will first address this last matter — the scope of judicial review — and then turn to a discussion of “sham.”
A. Standard of Review
The statutory provision at issue is NMSA 1978, Section 3-7-17(A) (Repl.Pamp.1987), which states:
'Whenever a petition:
(1) seeks the annexation of territory contiguous to a municipality;
(2) is signed by the owners of a majority of the number of acres in the contiguous territory;
(3) is accompanied by a map which shall show the external boundary of the territory proposed to be annexed and the relationship of the territory proposed to be annexed to the existing boundary of the municipality; and
(4) is presented to the governing body, the governing body shall by ordinance express its consent or rejection to the annexation of such contiguous territory.
When an annexation is challenged as being in violation of this provision, I would think that the court’s role would be to interpret the statutory language, determine whether the annexation complied with the statutory requirements, and overturn the annexation if it did not comply.
I cannot agree with the apparent view of the majority that these tasks can be avoided by simply characterizing the municipality’s decision to annex as “legislative” action. This characterization is a miseharacterization resulting from reading too much into our decision in Dugger v. City of Santa Fe, 114 N.M. 47, 834 P.2d 424 (Ct.App.), writ quashed, 113 N.M. 744, 832 P.2d 1223 (1992).
In Dugger the city had rejected a petition to annex certain territory. We pointed out that under the petition method of annexation the legislature had not set forth criteria whose satisfaction required the municipality to consent to the annexation. Unlike annexation by the two other statutory methods, which provided that annexation must take place if certain facts were established, the statute governing annexation by petition permitted a municipality to reject the petition for any reason. Because the legislature had imposed no standards governing rejection of a petition, it was appropriate to refer to such a rejection as a “political” or “legislative” matter, subject only to review for constitutionality.
But it does not follow that municipal consent to a petition for annexation is reviewable only for constitutionality. Although the legislature imposed no restrictions on a municipality's rejection of a petition for annexation, it did set standards that must be satisfied before the municipality could consent to the petition. The petition must be valid (that is, comply with statutory requirements) before the municipality can consent to it, whereas the validity of the petition is irrelevant if the municipality rejects annexation. Thus, the analysis that led the Dugger court to state that the decision to reject a petition is solely a “legislative” or “political” determination does not apply to consent to a petition. Dugger had no occasion to consider the scope of review of a municipality’s consent to annexation. Nothing in Dugger suggests that the courts should ignore specific statutory requirements that must be satisfied before a municipality can consent to a petition for annexation.
On the contrary, Dugger states that New Mexico “limit[s] judicial review of an ordinance passed pursuant to express legislative authority to the constitutional validity of the statute or its application.” Dugger, 114 N.M. at 58, 834 P.2d at 430 (emphasis added). The emphasized language indicates that judicial review is limited to constitutional concerns only if the ordinance is authorized by statute — in other words, courts must address both the constitutionality of the ordinance and whether the legislature authorized the ordinance. In Dugger the city had express legislative authority to reject a petition for annexation, without any limitations being imposed by the statute on such a rejection. Consequently, only constitutional issues remained for consideration. In contrast, the issue here is whether in fact the ordinance was passed pursuant to “express legislative authority” or whether the annexation ordinance failed to comply with the authorizing legislation. It would be a misreading of Dugger to conclude that judicial review of ordinances is limited to questions of constitutional validity so long as such ordinances are permitted by statute, even if the statute imposes explicit conditions on the power of municipalities to enact such ordinances. I am confident that when the legislature conveys conditional authority upon municipalities, it expects the courts to enforce the conditions.
Nor am I persuaded by the majority’s reliance on Hughes v. City of Carlsbad, 53 N.M. 150, 203 P.2d 995 (1949). This reliance is perplexing for two reasons. First, contrary to the view adopted by the majority here, Hughes imposed a “reasonableness” requirement on annexation and laid down a five-part test for determining reasonableness, even though the annexation statute of that time provided no substantive guidelines. Id. at 155-56, 203 P.2d at 998-99. Second, our Supreme Court in Mutz v. Municipal Boundary Commission, 101 N.M. 694, 701-02, 688 P.2d 12, 19-20 (1984), rejected Hughes, saying, “[W]e do not perpetuate the rule applied in Hughes to annexation decisions.” In any event, Hughes did not address the scope-of-review question we face on this appeal. The opinion did not consider the standard of review with respect to a contention that an express statutory requirement had not been satisfied.
Finally, the policy arguments advanced by the majority opinion in favor of deferential review of annexation decisions do not persuade me that courts should ignore the statutory requirement of contiguity. Perhaps municipalities will ordinarily make sound decisions regarding annexation, or at least they will ordinarily perform better than any court that presumed to second-guess the municipality’s evaluation of the public interest. See generally Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va.L.Rev. 625 (1994). But when the legislature has enacted restrictions on a municipality’s decision whether to annex territory, the judiciary should not impose its view that municipalities should be limited only by the constitution. It would be an abdication of responsibility and an abuse of office for a court to say, “We believe that municipalities can handle these matters well enough on their own, so we will not examine whether statutory requirements have been satisfied.”
In short, this Court has no choice. The legislature permits annexation only of contiguous territory. We must decide the meaning of the statutory requirement and whether the requirement has been satisfied in this case.
B. Sham
On its face, the contiguity requirement is a straightforward one. I see no reason to give the word “contiguous” a meaning other than its ordinary meaning of “bordering” or “adjacent.” My research of the ease law has not revealed a special meaning of the word “contiguous” in the context of municipal annexation. In particular, it does not appear that “contiguous” has been generally held to incorporate such notions as “community of interest.”
One’s initial reaction may be that adoption of this definition ends virtually all dispute regarding application of the statutory requirement. If the annexed territory borders or adjoins the municipality, then presumably the contiguity requirement is met, regardless of any other features of the annexation. But adoption of such an approach could eviscerate the contiguity requirement. This conclusion follows from a consideration of the procedure for annexation by petition.
A municipality may annex territory if the territory is contiguous to the municipality and the owners of a majority of the acreage of the territory sign a petition seeking annexation. Section 3-7-17(A). (For present purposes, I can ignore the requirements that the petition be accompanied by a map and be presented to the governing body of the municipality.) What if the owner of a parcel not contiguous to the municipality wishes to be annexed by the municipality and the governing body of the municipality shares in that desire? No problem. Just include in the petition a little bit of land owned by others. The land would be a strip leading from the municipality to the non-contiguous parcel. Even if the owner or owners of the connecting strip oppose the annexation, their total acreage can be kept below the acreage of the non-contiguous parcel simply by making the connecting strip sufficiently narrow. Consequently, the owners of the majority of the acreage to be annexed would favor annexation. Because of this possibility, the contiguity requirement becomes a paper tiger. It imposes no constraint on an annexation if the governing body of the municipality and the owner of the non-contiguous parcel want the annexation to take place.
To avoid such evisceration of the contiguity requirement, the annexation statute must be read as prohibiting an annexation when contiguity is achieved by a sham or subterfuge. There is nothing remarkable in so reading the annexation statute. As Justice Jackson has written, a “statute[ ] can and should be applied to strike down sham and artifice intended to evade its commands.” Walling v. Portland Terminal Co., 330 U.S. 148, 154, 67 S.Ct. 639, 642, 91 L.Ed. 809 (1947) (Jackson, J., concurring.)
Moreover, there is nothing remarkable about applying this proposition in the context of annexation. Several courts apparently have rejected annexations on just this ground. E.g., Potvin v. Village of Chubbuck, 76 Idaho 453, 284 P.2d 414, 417-18 (1955); Wild v. People ex rel. Stephens, 227 Ill. 556, 81 N.E. 707, 708 (1907); Reafsnyder v. City of Warsaw, 155 Ind.App. 455, 293 N.E.2d 540, 545 (1973); Ridings v. City of Owensboro, 383 S.W.2d 510, 511-12 (Ky.1964).
The “sham” rule prohibits an annexation if what the municipality is really doing is annexing a non-contiguous parcel by using a connecting strip which is included in the annexation solely for the purpose of achieving contiguity. Although application of the rule may sometimes be difficult, there is no reason why application of the rule should involve the courts in municipal policy-making. The issue is not whether there is a good municipal purpose for annexing the connecting strip; it is only whether there is a plausible municipal purpose other than achieving contiguity. (I should add, however, that there is no reason to require a municipal purpose if the owners of the connecting strip approve of the annexation. In that event there is no sham or subterfuge: The owners of the connecting strip could petition for annexation; and once their land was annexed, there would be no contiguity problem with annexing the parcel that had been non-contiguous. See City of Bettendorf v. Abeln, 261 Iowa 404, 154 N.W.2d 836, 844 (1967) (if annexation may be accomplished properly in two steps, it may be accomplished all at once); cf. Mutz, 101 N.M. at 698, 688 P.2d at 16.)
What is remarkable in this case is that Carlsbad has offered absolutely no municipal purpose for annexing the property owned by Plaintiffs. Plaintiffs’ affidavits are uncontradicted in their assertions that no purpose is served by annexing their land. Also, Plaintiffs make clear that they oppose the annexation of their land. Perhaps there is a municipal purpose for the annexation of Plaintiffs’ land (a purpose other than to provide contiguity for the Forrest Property), but the City chose not to defend the annexation on that ground. Thus, on this record a finding of sham or subterfuge is required. Although remand might now be appropriate to enable the City to show a municipal purpose (assuming that the City could not have anticipated the adoption of a “sham” rule), the majority’s decision makes it unnecessary to consider that issue.