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

RELATING TO SUBDIVISIONS; PROVIDING FOR EXEMPT SUBDIVISIONS; PROVIDING FOR MERGER OF PARCELS UNDER CERTAIN CIRCUMSTANCES; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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] similar 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] subdivision 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] two or more parcels;

I. "subdivider" means any 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)] (1) the sale or lease of apartments, offices, stores or similar space within a building;

[(3)] (2) the division of land within the boundaries of a municipality; or

[(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)] (3) 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 of land, 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 the same tract of land within five years of the first sale, lease or other conveyance 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;]

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] a 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] the 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. A new section of the New Mexico Subdivision Act is enacted to read:

"[NEW MATERIAL] EXEMPT SUBDIVISIONS.--

A. The following may be exempt from county subdivision regulations:

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

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

(4) the division of land for grazing or farming activities if the land will continue to be used for grazing or farming activities;

(5) 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;

(6) 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;

(7) 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;

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

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

B. A person who is seeking an exemption from the requirements of the county's subdivision regulations shall submit to the county:

(1) a certificate of survey or, where a survey is not required, an instrument of conveyance; and

(2) evidence of and an affidavit affirming entitlement to the claimed exemption.

C. The board of county commissions shall issue a certificate of exemption if the proposed subdivision qualifies as an exempt subdivision pursuant to this section and the county subdivision regulations and is in compliance with all applicable state and county land use regulations.

D. A certificate of exemption shall not be issued if:

(1) the proposed subdivision does not qualify under this section; or

(2) the proposed subdivision does not otherwise comply with or is inconsistent with the applicable comprehensive plan or land use regulations of the county.

E. Any party who may be aggrieved by a decision of the board of county commissioners pursuant to this section may appeal to the district court as provided in Section 47-6-15 NMSA 1978."

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

"[NEW MATERIAL] MERGER OF PARCELS.--

A. Two or more contiguous parcels shall not be merged solely by virtue of the fact that the contiguous parcels are owned by the same person.

B. A county may provide in its subdivision regulations for the merger of contiguous parcels owned by the same person if any one of the contiguous parcels does not conform to standards for minimum parcel size as provided in the subdivision regulations and if one or more of the following conditions exist for one of the parcels:

(1) it comprises less than five thousand square feet in area at the time of the determination of merger;

(2) it was not created in compliance with applicable laws and ordinances in effect at the time of its creation;

(3) it does not meet current standards for sewage disposal and domestic water supply;

(4) it does not meet slope stability standards;

(5) it has no legal access that is adequate for vehicular access;

(6) its development would create health or safety hazards; or

(7) it does not meet zoning requirements or is otherwise inconsistent with the county's comprehensive plan or subdivision regulations.

C. A merger of parcels becomes effective when the county files for record with the county clerk a notice of merger specifying the names of the current record owner and particularly describing the real property merged.

D. Prior to recording a notice of merger, the county shall mail by certified mail to the current record owner of the property a notice of intent to merge parcels and the grounds on which the proposed merger will be taken. The notice of intent to merge shall include notification of the property owner's right to request a hearing on the proposed merger within thirty days of issuance of the notice. The notice shall be filed with the county clerk in accordance with the provisions of Chapter 14, Article 9 NMSA 1978 and shall be published as a legal notice at least twice in a newspaper of general circulation in the county.

E. If the property owner requests a hearing, the county shall set a date, time and place for the hearing to be conducted by the board of county commissioners or the planning commission, and shall notify the property owner by certified mail. The hearing shall be conducted no more than sixty days following receipt of the property owner's request for hearing, but may be postponed or continued with the mutual consent of the county and the property owner.

F. At the hearing, the property owner shall be given the opportunity to present evidence that the property does not meet the standards and conditions for merger specified in Subsection B of this section. At the conclusion of the hearing, the board of county commissioners or the planning commission shall make a determination whether the affected parcels are to be merged and shall notify the property owner in writing of its determination. A determination of merger shall be recorded with the county clerk in accordance with Chapter 14, Article 9 NMSA 1978 within thirty days of the conclusion of the hearing.

G. If the board of county commissioners or the planning commission determines that the property should not be merged, it shall file with the county clerk a release of notice of intent to merge and shall mail a clearance letter to the property owner.

H. A property owner who may be aggrieved by a decision of the planning commission pursuant to this section may appeal to the board of county commissioners. A property owner who may be aggrieved by a decision of the board of county commissioners pursuant to this section may appeal to the district court as provided in Section 47-6-15 NMSA 1978."