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

RELATING TO DISTRICTS; CHANGING CERTAIN PROVISIONS IN THE WATER AND SANITATION DISTRICT ACT.

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

Section 1. Section 73-21-9 NMSA 1978 (being Laws 1943, Chapter 80, Section 8, as amended) is amended to read:

"73-21-9. HEARING ON PETITIONS--ELECTION FOR ORGANIZATION AND OFFICERS.--

A. On the day fixed for the hearing or at an adjournment of it, the court shall ascertain from the tax rolls of the county in which the district is located or into which it extends, from the last official registry list and from any other evidence which may be adduced, the total number of taxpaying electors [residing within the proposed] of the district.

B. If the court finds that no petition has been signed and presented in conformity with the Water and Sanitation District Act, or that the material facts are not as set forth in the petition filed, it shall dismiss the proceedings and adjudge the costs against the signers of the petition or, if applicable, the board of county commissioners of a county, in the proportion as it deems just and equitable. No appeal or suit of error shall lie from an order dismissing the proceedings; but nothing in that act shall prevent the filing of a subsequent petition for similar improvements or for a similar district, and the right to renew the proceeding is expressly granted and authorized.

C. At any time after the filing of the petition for the organization of a district and before the day fixed for the hearing on it, the owner of any taxable property within the proposed district may file a petition with the court stating reasons why the property should not be included in the district and requesting that the property be excluded from it. The petition shall be verified and shall describe the property sought to be excluded. The court shall hear the petition and all objections to it at the time of the hearing on the petition for organization and shall determine whether the property should be excluded or included in the district.

D. In determining whether or not the petition for the creation of a water and sanitation district shall be granted, the district court shall consult and request an opinion from:

(1) the state engineer to determine whether the proposed district has adequate water rights to implement the proposed improvements; and

(2) the environmental improvement division to determine, as to the technological feasibility of the proposed improvements, whether the water proposed to be supplied is of an acceptable quality to conform with the state regulations and whether the liquid and solid waste disposal proposals can conform with state regulations.

E. The court may deny the petition or may order the petition to be modified, if the court, after hearing on the petition, finds that:

(1) the proposed water and sewage improvements cannot conform with the state regulations;

(2) the water and sewage improvements cannot be implemented within a reasonable time taking into consideration applications for state and federal grants;

(3) there is lacking an actual or impending need for the water and sewage improvements proposed; or

(4) the boundaries of the proposed district contain land that has no actual or impending need for the water and sewage improvements or cannot be reasonably expected to utilize the water and sewage improvements, unless the land is otherwise required to be included in the proposed district by rule or regulation of a federal agency.

F. Upon the hearing, if it appears that a petition for the organization of a district has been properly signed and presented and that the allegations of the petition are true, the court shall order that the question of the organization of the district be submitted to the taxpaying electors residing within the boundaries of the district as set forth in the petition, as the boundaries were modified by the court in determining that only property to be benefited by the proposed improvements should be included within the boundaries of the district, at an election to be held for that purpose, and the order shall designate one or more polling places within the district, and for each polling place so designated, shall appoint three taxpaying electors of the district as judges of the election and two taxpaying electors of the district as clerks of the election. The clerk of the court having jurisdiction shall give published notice of the time and place of an election to be held in the district not less than twenty days after the first publication of the notice.

G. The election shall be held and conducted as nearly as possible in the same manner as general elections in this state. No special registration for the election is required, but for the purpose of determining qualifications of electors, the judges may use the last official registry lists of electors residing in the district, and, in addition, they may require the execution of an affidavit concerning the qualifications of any elector.

H. At the election, the taxpaying electors shall vote for or against the organization of the district, and if in favor thereof, shall vote for three taxpaying electors of the district who shall constitute the board of directors of the district, one to act until the first biennial election, one until two years and one until four years after the election, except that at the election in a county where the petition for the district was signed by the chairman of the board of county commissioners, the taypaying electors shall vote only for or against the organization of the district.

I. The judges of election shall certify the returns of the election to the district court having jurisdiction. If a majority of the votes cast at the election are in favor of the organization, the district court shall declare the district organized and give it a corporate name by which, in all proceedings, it shall thereafter be known, and designate the first board of directors elected, except that a district created pursuant to a petition signed by the chairman of the board of county commissioners of a county shall appoint the first board of directors as provided in Section 73-21-15.1 NMSA 1978. Thereupon the district shall be a governmental subdivision of the state, except a district created pursuant to a petition signed by the chairman of the board of county commissioners of a county, which district shall be a subdivision of the county. Every district shall be a body corporate with all the powers of a public or quasi-municipal corporation.

J. If an order is entered establishing the district, the order is final and no appeal or writ of error shall lie therefrom, and the entry of the order shall finally and conclusively establish the regular organization of the district against all persons except the state, in an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty days after the decree declaring the district organized. The organization of the district shall not be directly or collaterally questioned in any suit, action or proceeding except as expressly authorized in the Water and Sanitation District Act."

Section 2. Section 73-21-15.1 NMSA 1978 (being Laws 1985, Chapter 155, Section 8) is amended to read:

"73-21-15.1. BOARD--DISTRICT CREATED BY A BOARD OF COUNTY COMMISSIONERS.--Notwithstanding any other provision of the Water and Sanitation District Act relating to election of the board, all members of the first board of any district created pursuant to a petition signed by the chairman of the board of county commissioners of a county shall be appointed by the board of county commissioners. The board shall consist of five directors who are [residents] taxpaying electors of the district appointed for staggered terms so that the terms of two directors expire in one year and the terms of three directors expire in two years. Thereafter, all directors shall be elected to two-year terms pursuant to the provisions of the Water and Sanitation District Act. Any director appointed by any board of county commissioners shall be eligible for election, provided that no member of a board shall serve more than two consecutive terms."