Public Hearing FAQs

There is always a lot of confusion surrounding the nature of the different types of hearings conducted by municipal government. I began work on this page after reading news accounts of the November 2024 approval of a “minor” subdivision in Campbell Ranch and the appeal which followed. Some of the information was not correct. After reviewing past minutes and watching the March 6, 2025 appeal hearing it became clear that it was not the news reporting at fault, but the town itself which was responsible. 

Unfortunately, I also found that incorrect information has been put out about other land use applications since the town government reorganization. So long as a decision is not appealed, the “no harm no foul” rule is usually applied. However, the risk of allowing sloppy work to become a habit is that lax procedures do matter if/when an appeal is filed. Nevertheless, whether done well or ill, the town’s land use decisions are amendments to what is known as its Master Plan. (This constitutes a body of precedent which should not be confused with the zoning category called MP-Master Plan.)

There are different scenarios in which town land use decisions may be appealed. Town procedures are (or should be) designed to give adequate opportunity for public input and lessen the risk of its decisions being overturned.

• The most common situation is for an applicant to appeal a denial. 
• An applicant may appeal an approval if conditions to which it objects are added. This happened after the Town Council’s conditional approval of the Hillcrest Master Plan in 2003. 
• Parties objecting to a P&Z recommendation may also appeal as happened with the Planning & Zoning Commission's action on the Lone Pine Ranch (Walmart) application in 2005. 
• The November 2024 approval of a “minor” subdivision in Campbell Ranch by the P&Z Commission was appealed by opponents. The Governing Body Commission has remanded the matter to P&Z because it found several areas (both procedural and substantive) which it determined should be corrected and clarified. No date for a rehearing has yet been announced. Update: The remand hearing was held on May 15, 2025 following which the P&Z Commission voted unanimously to approve a bulk plat land division masquerading as a “minor” subdivision with no conditions attached. 
• If P&Z and the Governing Body fail to get the Campbell Ranch subdivision hearing right a second time, both the original Applicant and the Appellants might have grounds for an appeal.  Update: The P&Z Commission considered adding conditions during the May 15, 2025 hearing, but did back off following legal counsel’s advice. An unconditional approval removes grounds for the Applicant to challenge the decision.  
• Other jurisdictions such as a county government might also seek to intervene in cases where it believes its interests are harmed by a decision of the town, but the criteria for establishing legal standing may be hard to meet.

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Q: What kind of public hearings does Edgewood schedule?

A: The town may schedule formal public hearings on land use applications and for changes in ordinances. Formal hearings are subject to relevant provisions of state statutes. It may also schedule less formal hearings to get public input on policies such as road priorities, ICIP submissions, and appointments to committees. Less formal hearings are (or should be) conducted according to the guidelines adopted as part of the town’s current Operating Resolution.

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Q: What is the difference between a Quasi-Judicial Public Hearing and a Legislative Public Hearing?

A: Both types have different requirements laid out by state laws: What distinguishes them is the scope. Legislative actions affect everyone in the jurisdiction. Quasi-Judicial actions are based on prior legislative actions, but directly affect only a portion of the jurisdiction. This page from Iowa State University provides an overview of the differences for land use hearings. 

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Q: Can I contact my local government about a Quasi-Judicial Public hearing?

A: Yes, but there are some restrictions on how, when, and in what form those contacts take place. This overview from Colorado explains the issues clearly. However, it cites Colorado state statutes and case law; New Mexico’s will be different in some respects although general principles tend to be the same in all states.  

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Q: Are public officials required to shield themselves from all information regarding an upcoming Quasi-Judicial Public Hearing?

A: No. A municipality’s elected and appointed officials are not acting in a “judicial” role, but in a less stringent “quasi-judicial” capacity. They are not required to live in a sack or wear black robes, but they do need to avoid obtaining ex parte information available to only to themselves or a subset of the board charged with making a decision. 

This includes refraining from doing personal research, and instead, relying on staff reports, packets, and the testimony and exhibits presented during the hearing. Town officials should not make site visits on their own or in the company of interested parties, nor should they take part in group meetings, conversations, phone calls, texts, or e-mails on matters relating to an upcoming hearing. This holds true not only for a scheduled hearing, but one which is likely to appear but has no fixed date on the calendar.

The idea is that within reason, all members of the board have access to the same information upon which a decision is to be made. However, not all members will comprehend or filter the information in the same way. 

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Q:  Are town officials prohibited from engaging in ex parte contacts for Legislative or informal public hearings?

A: In such cases town officials have much wider latitude so long as they follow guidelines in the board’s Operating Resolution, and neither engage in a rolling quorum nor participate in a quorum which does not comply with the Open Meetings Act.

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Q: Why are there so many rules to follow in Quasi-Judicial Hearings?

A: Quasi-Judicial Hearings typically involve matters regarding employment or property rights and as such fall under the “due process” umbrella. Prudent local governments follow guidelines issued by the Office of the New Mexico Attorney General designed to ensure that undue influences are restrained, rights to due process are maintained, and laws on open government are followed.  The New Mexico Department of Justice maintains a page with links to guides for compliance with the Open Meetings Act (OMA), Inspection of Public Records Act (IPRA), and Governmental Conduct Act (GCA).

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Q: What kinds of appeals public hearings does the town hold?

A:  The type of hearing depends on the wording in the applicable town ordinance or formally adopted resolution which set out procedures for appeals hearings. In some instances, a “de novo” appeal is heard in the form of a quasi-judicial hearing when called for by the applicable ordinance. It is essentially a new hearing in which testimony and exhibits not presented in the original hearing may be presented during the appeal hearing. 

An “appeal of record” is the most common type of land use appeal hearing. Such hearings are limited in scope to an examination of the record of the original hearing which typically includes, but is not always limited to staff reports, the application and attachments, the hearing packet, testimony and exhibits presented in the hearing, legal advice presented in the hearing during open session, video and/or audio recordings of the hearing, approved meeting minutes and a findings of fact (or similar) document. It does not allow for introduction of new testimony or exhibits. 

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Q: Upon what basis may the results of a public hearing be appealed?

A:  A public hearing may be appealed on procedural grounds which fall under alleged violations of the OMA, IPRA, or GCA. Appeals of substance may also be filed alleging that a decision violates one or more of the town’s legally adopted ordinances and resolutions, or in some cases superseding State and/or Federal Statutes. 

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Q:  Who may file an appeal of a town’s action taken during a public hearing?

A:  Anyone who has standing as defined in applicable statutes or local ordinances, or who may be granted standing by judicial decree may file an appeal. In addition, the Commission/Manager government charter, in theory, has provision for appealing certain actions of the municipal government. However, despite several attempts, this option has not yet proven effective in Edgewood.

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Q:  When does the clock start on the countdown to the deadline for filing an appeal of a land use decision or recommendation? 

A:  Contrary to popular belief, the clock starts upon approval and signing of the meeting minutes and the Findings of Fact and Conclusions of Law. The starting point cannot be on the date a vote is taken because no written record exists which may be cited until those steps are completed. In recent years an “Order of Decision” has been used instead of Findings by Edgewood’s Planning & Zoning Department. The number of days  may vary depending on the wording of the land use ordinance which governs the application.

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Q:  How do I know if a public hearing will end in a decision or a recommendation?

A:  The agenda should provide this information. For land use hearings, the Town’s current Zoning Ordinance specifies the responsibilities of Staff, P&Z and the Governing Body as being to review, recommend, decide, or perform some combination of those tasks.  

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Q:  What options does a land use commission or board have with regard to its decisions?

A:  Many parties may try to assert that their facts as presented compel a particular decision. That is not true. Public bodies always have options, but for any given case, the options vary with respect to whether or not or the degree to which a decision is legally defensible. It is to be expected that interested persons offering testimony may try to assert otherwise, but for staff or legal counsel to do so should be regarded as an indication of undue influence and such raises the possibility of a legal challenge.  

Most land use decisions fall under four general categories: (1) to approve as presented with no conditions attached, (2) approve with conditions so long as any conditions are consistent with applicable ordinances, resolutions, or court decisions, or (3) to deny if approval of the application is not consistent with the aforementioned legal instruments. (4) In addition, a land use board may table a matter to a date certain or table a matter indefinitely. The former is preferable as indefinitely tabled items must be taken up again in the same form; after a long interval, doing so may be difficult if circumstances have changed.

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Q:  What role do questions from a land use commission or board play in public hearings?

A. Questions may be asked of those offering testimony, staff, or legal counsel in order to clarify testimony, ask questions about staff contributions such as meeting packets or reports, and of counsel to evaluate available options with regard to the legal defensibility of potential decisions.  

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Q:  Why do members of land use commissions or boards sometimes ask questions for things they should be expected to know?

A.  The ordinary reasons for such questions are fairly simple: (1) New members may need to ask for clarification if they are unsure about something under discussion. (2) During long hearings, it is wise to ask for clarification especially if the topic is unusually complex and/or the hour is late. (3) The least understood reason by both public officials and the general public is that the proper role for members of a public body is to hear, clarify, and evaluate testimony and exhibits. They should not offer testimony as doing so is confusing in that it blurs the line between providing testimony and evaluating it. However, if a board member has reason to believe that something relevant is being left out or ignored they may ask questions designed to elicit further testimony. The distinction is obvious, but in during long or contentious hearings it is difficult to maintain.