NMAGO 05-03.

• Case Date: July 07, 2005
• Court: New Mexico

New Mexico Attorney General Opinions 2005. NMAGO 05-03. July 7, 2005OPINION OF PATRICIA A. MADRID Attorney General Opinion No. 05-03BY: Sally Malavé Assistant Attorney General TO: The Honorable Jeannette O. Wallace Representative - District 431913 Spruce Los Alamos, New Mexico 87544 QUESTIONS: Whether school-owned lands that are used by the schools for school purposes directly in support of educating children, such as classroom facilities, or indirectly, such as school administration offices, are subject to Los Alamos County zoning requirements and development code? Whether school-owned lands that are used for commercial purposes, such as a hotel, are subject to the zoning/development code requirements of the county?CONCLUSION: 1. In the absence of express legislative intent regarding a school district's immunity from local zoning regulations and upon balancing the interests of Los Alamos County in the orderly development of the community with the interests of the Los Alamos school board in developing a revenue stream for the benefit of Los Alamos schools, we believe that lands owned by the Los Alamos Public School District and used for school purposes, directly and indirectly, may be subject to local zoning and development ordinances. 2. Similarly, we believe that lands owned by the school district and used for commercial purposes also may be subject to local zoning and development ordinances. DISCUSSION: As a preliminary matter, in order to determine whether the Los Alamos Public School District is subject to Los Alamos County zoning and development requirements, we believe it would be helpful to review the relevant statutes relating to a school board's authority to own land and a county's authority to zone land. (fn1) Under the Public School Code, NMSA 1978, § 22-1-1 et seq., local school boards have express authority to acquire, lease and dispose of property, to acquire property by eminent domain, and to provide for the repair and maintenance of all property belonging to the school district. (fn2) NMSA 1978, § 22-5-4. The Public School Code does not grant or otherwise reserve to local school boards the authority to determine the general location of their schools. That authority is vested in counties and municipalities. See, e.g., NMSA 1978, §§ 3-19-9(B) and 3-21-1(A) (5). The statutory provisions governing the sale, lease or trade of public property further provide that local school boards are authorized to sell, lease or trade school-owned property. NMSA 1978, §§ 13-6-1 through 13-6-4. These same provisions differentiate between state agencies, local governing bodies, school districts, and state educational institutions. (fn3) Id. An entity's status as a state agency, local public body, school district, or state educational institution determines whether it needs board of finance or legislative approval prior to the disposition of real property. (fn4) But neither the Public School Code nor any other statutory provision addresses a local school board's powers and/or duties relating to the zoning or development of school-owned lands or otherwise expressly exempts school-owned lands from the local zoning jurisdiction within which they are located. Zoning generally has been defined as governmental regulation of the uses of land and buildings according to districts or zones. Miller v. City of Albuquerque, 89 N.M. 503, 505 (1976). When used to promote the public interest, the New Mexico Supreme Court has concluded that local zoning is justified and has upheld it as a legitimate exercise of the police power. Id...