45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO PROPERTY LAW; REVISING A COUNTY'S AUTHORITY TO REGULATE SUBDIVISIONS; AMENDING AND ENACTING SECTIONS OF THE NEW MEXICO SUBDIVISION ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 47-6-2 NMSA 1978 (being Laws 1973, Chapter 348, Section 2, as amended) is amended to read:

"47-6-2. DEFINITIONS.--As used in the New Mexico Subdivision Act:

A. "immediate family member" means a husband, wife, father, stepfather, mother, stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece, whether related by natural birth or adoption;

B. "lease" means to lease or offer to lease land;

C. "parcel" means land capable of being described by location and boundaries and not dedicated for public or common use;

D. "person" means [any] an individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity;

E. "final plat" means a map, chart, survey, plan or replat certified by a licensed, registered land surveyor containing a description of the subdivided land with ties to permanent monuments prepared in a form suitable for filing of record;

F. "preliminary plat" means a map of a proposed subdivision showing the character and proposed layout of the subdivision and the existing conditions in and around it and need not be based upon an accurate and detailed survey of the land;

G. "sell" means to sell or offer to sell land;

H. "subdivide" means to divide a surface area of land into a subdivision;

I. "subdivider" means [any] a person who creates or who has created a subdivision individually or as part of a common promotional plan or [any] a person engaged in the sale, lease or other conveyance of subdivided land; however, "subdivider" does not include [any] a duly licensed real estate broker or salesperson acting on another's account;

J. "subdivision" means the division of a surface area of land, including land within a previously approved subdivision, into two or more parcels for the purpose of sale, lease or other conveyance or for building development [whether immediate or future], but "subdivision" does not include:

(1) the sale, lease or other conveyance of any parcel that is thirty-five acres or larger in size within any twelve-month period; provided that the land has been used primarily and continuously for agricultural purposes, in accordance with Section 7-36-20 NMSA 1978, for the preceding three years;

(2) the sale or lease of apartments, offices, stores or similar space within a building;

(3) the division of land within the boundaries of a municipality;

(4) the division of land in which only gas, oil, mineral or water rights are severed from the surface ownership of the land;

(5) the division of land created by court order where the order creates no more than one parcel per party;

(6) the division of land for grazing or farming activities; provided the land continues to be used for grazing or farming activities;

(7) the division of land resulting only in the alteration of parcel boundaries where parcels are altered for the purpose of increasing or reducing the size of contiguous parcels and where the number of parcels is not increased;

(8) the division of land to create burial plots in a cemetery;

(9) the division of land to create a parcel that is sold or donated as a gift to an immediate family member; however, this exception shall be limited to allow the seller or donor to sell or give no more than one parcel per tract of land per immediate family member;

(10) the division of land created to provide security for mortgages, liens or deeds of trust; provided that the division of land is not the result of a seller-financed transaction;

(11) the sale, lease or other conveyance of land that creates no parcel smaller than one hundred forty acres;

(12) the division of land to create a parcel that is donated to any trust or nonprofit corporation granted an exemption from federal income tax, as described in Section 501 (c)(3) of the [United States] Internal Revenue Code of 1986, as amended; school, college or other institution with a defined curriculum and a student body and faculty that conducts classes on a regular basis; or [to any] church or group organized for the purpose of divine worship, religious teaching or other specifically religious activity; [or]

(13) the [sale, lease or other conveyance of a single parcel from a tract] division of land to create two parcels, except from a tract within a previously approved subdivision, within any five-year period; provided that a second or subsequent [sale, lease or other conveyance from] division of the same tract of land within five years of the first [sale, lease or other conveyance] division shall be subject to the provisions of the New Mexico Subdivision Act; provided further that a survey shall be filed with the county clerk indicating the five-year holding period for both the original tract and the newly created tract; or

(14) the division of land to create a parcel that is used for facilities that:

(a) gather, process or transport gas, oil or byproducts of gas or oil; or

(b) dispose of wastewater created during the production or refining of gas, oil or other hydrocarbons;

K. "terrain management" means the control of floods, drainage and erosion and measures required for adapting proposed development to existing soil characteristics and topography;

L. "time of purchase, lease or other conveyance" means the time of signing any document obligating the person signing the document to purchase, lease or otherwise acquire a legal interest in land;

M. "common promotional plan" means [any] a plan or scheme of operation, undertaken by a single subdivider or a group of subdividers acting in concert, to offer for sale or lease parcels of land where such land is either contiguous or part of the same area of land or is known, designated or advertised as a common unit or by a common name;

N. "type-one subdivision" means [any] a subdivision containing five hundred or more parcels, any one of which is less than ten acres in size;

O. "type-two subdivision" means [any] a subdivision containing not fewer than twenty-five but not more than four hundred ninety-nine parcels, any one of which is less than ten acres in size;

P. "type-three subdivision" means [any] a subdivision containing not more than twenty-four parcels, any one of which is less than ten acres in size;

Q. "type-four subdivision" means [any] a subdivision containing twenty-five or more parcels, each of which is ten acres or more in size; and

R. "type-five subdivision" means [any] a subdivision containing not more than twenty-four parcels, each of which is ten acres or more in size."

Section 2. Section 47-6-9 NMSA 1978 (being Laws 1973, Chapter 348, Section 9, as amended) is amended to read:

"47-6-9. SUBDIVISION REGULATION--COUNTY AUTHORITY.--

A. The board of county commissioners of each county shall regulate subdivisions within the county's boundaries. In regulating subdivisions, the board of county commissioners of each county shall adopt regulations setting forth the county's requirements for:

(1) preliminary and final subdivision plats, including their content and format;

(2) quantifying the maximum annual water requirements of subdivisions, including water for indoor and outdoor domestic uses;

(3) assessing water availability to meet the maximum annual water requirements of subdivisions;

(4) water conservation measures;

(5) water of an acceptable quality for human consumption and for protecting the water supply from contamination;

(6) liquid waste disposal;

(7) solid waste disposal;

(8) legal access to each parcel;

(9) sufficient and adequate roads to each parcel, including ingress and egress for emergency vehicles;

(10) utility easements to each parcel;

(11) terrain management;

(12) phased development;

(13) protecting cultural properties, archaeological sites and unmarked burials, as required by the Cultural Properties Act;

(14) specific information to be contained in a subdivider's disclosure statement in addition to that required in Section 47-6-17 NMSA 1978;

(15) reasonable fees approximating the cost to the county of determining compliance with the New Mexico Subdivision Act and county subdivision regulations while passing upon subdivision plats;

(16) a summary procedure for reviewing certain type-three and all type-five subdivisions as provided in Section 47-6-11 NMSA 1978;

(17) recording all conveyances of parcels with the county clerk;

(18) financial security to assure the completion of all improvements that the subdivider proposes to build or to maintain;

(19) fencing subdivided land, where appropriate, in conformity with Section 77-16-1 NMSA 1978, which places the duty on the purchaser, lessee or other person acquiring an interest in the subdivided land to fence out livestock; and

(20) any other matter relating to subdivisions that the board of county commissioners feels is necessary to promote health, safety or the general welfare.

B. Subsection A of this section does not preempt the authority of any state agency to regulate or perform any activity that it is required or authorized by law to perform.

C. The following counties shall adopt regulations pursuant to this section on or before July 1, 1996: Bernalillo, Dona Ana and Santa Fe.

D. All remaining counties shall adopt regulations pursuant to this section on or before July 1, 1997.

E. [Nothing in] The New Mexico Subdivision Act shall not be construed to limit the authority of [counties] a county to adopt subdivision regulations with requirements that are more stringent than the requirements set forth in the New Mexico Subdivision Act, [provided] if the county has adopted a comprehensive plan in accordance with Section 3-21-5 NMSA 1978 and [those] the county's regulations are consistent with [such] the comprehensive plan. A county shall adopt regulations that comply with the exemptions to the definition of "subdivision" set forth in Paragraphs (1) through (14) of Subsection J of Section 47-6-2 NMSA 1978."

Section 3. A new section of the New Mexico Subdivision Act is enacted to read:

"[NEW MATERIAL] NO CONSOLIDATION OF CONTIGUOUS PARCELS WITHOUT EXPRESS CONSENT AND SPECIFIC ACTION BY OWNER.--Unless an owner of parcels expressly consents and takes specific action to consolidate contiguous parcels owned by him, no county subdivision regulation enacted pursuant to the provisions of the New Mexico Subdivision Act and no action by a board of county commissioners shall require one parcel to be consolidated with one or more contiguous parcels for the purpose of considering the consolidated parcels as a single tract based upon common ownership of the parcels, if the chain of title to the separate parcels clearly demonstrates the parcels to have been considered separate prior to transfer into common ownership. The provisions of this section shall not be interpreted to limit a county board of commissioners from requiring the merger of contiguous parcels into common ownership for the purpose of enforcing minimum zoning standards on the parcels in preparation for development of the parcels."