SB0554

SENATE BILL 554

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

John M. Sapien

AN ACT

RELATING TO MUNICIPALITIES; REVISING PROCEDURES FOR THE CREATION OF IMPROVEMENT DISTRICTS; LIMITING ASSESSMENTS TO DIRECT BENEFIT OF IMPROVEMENTS.

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

SECTION 1. Section 3-33-11 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-32-4, as amended) is amended to read:

"3-33-11. IMPROVEMENT DISTRICT--PROVISIONAL ORDER

METHOD--PROCEDURE--PRELIMINARY LIEN--NOTICE OF PENDENCY OF DISTRICT--EFFECT.--

A. Whenever [the] a governing body determines that the creation of an improvement district is necessary by the provisional order method, the governing body shall by resolution direct the engineer to prepare preliminary plans and an estimate of cost for the proposed improvement district.

B. The resolution shall:

(1) describe in general terms the property to be included in the improvement district;

(2) require the engineer to prepare:

(a) an assessment plat showing the area to be included in the improvement district; and

(b) an addendum to the assessment plat showing the amount of maximum benefit estimated to be assessed against each tract or parcel in the improvement district on a front-foot, zone, area or other equitable basis, which shall be set forth in the resolution [and]; provided that, if the benefit to a tract or parcel is derived from a combination of improvements, the amount of maximum benefit estimated to be assessed against such tract or parcel may be based upon an appraisal or determination of the value of the improvements as a whole; and

(3) require the engineer to prepare preliminary plans for one or more types of construction showing:

(a) for each type of road, curb, gutter, sidewalk and street, a typical section of the contemplated improvement, the type of material to be used and the approximate thickness and width of the material;

(b) for each type of storm sewer or drain, sanitary sewer or water line, the type of material and approximate diameter of any trunk lines, mains, laterals or house connections; or

C. The engineer shall include in the total cost estimate for the improvement district all expenses, including but not limited to advertising, appraising, tax reimbursement, capital improvement, expansion, construction period interest, reserve fund, financing, engineering and printing expenses that the engineer deems necessary to pay the complete cost of the improvement.

D. The engineer shall submit to the municipal clerk the:

(1) assessment plat;

(2) preliminary plans of the type of construction; and

(3) estimate of costs for the improvement.

E. After the governing body examines the assessment plat, preliminary plans and estimates of cost for the improvement district, the governing body may adopt a provisional order [which] that:

(1) orders the improvement to be constructed;

(2) instructs the municipal clerk or [engineer] the clerk's deputy to give notice of a hearing on the provisional order; and

(3) orders, if deemed necessary by the governing body and with the consent of all of the owners of the tracts or parcels to be encumbered with a preliminary assessment lien, as stated in the records of the county assessor updated within thirty days prior to the date of the provisional order, the immediate placement of a preliminary assessment lien on tracts or parcels in the improvement district based on the estimated maximum benefit to be assessed against such tracts or parcels in order to facilitate interim financing of the improvement and that provides for times and terms of paying the preliminary assessment lien, for the adjustment of the preliminary assessment lien and for the placement of a final assessment lien upon each such tract or parcel pursuant to the provisions of Sections 3-33-22 and 3-33-23 NMSA 1978. Both the preliminary and the final assessment liens shall be coequal with the lien for general ad valorem taxes and the lien of other improvement districts and are superior to all other liens, claims and titles. The consent of any owner in an improvement district to the placement of a preliminary assessment lien on the owner's property shall not alter the assessment on any other tracts or parcels in the improvement district.

F. Upon the adoption of the provisional order by the governing body, the estimated maximum benefit roll showing the legal description of the property to be included in the district and the owners thereof may be recorded with the clerk of the county in which the property is located, which recording shall constitute notice of the pendency of the special assessment district and shall be constructive notice to the owner, purchaser or encumbrancer of the property concerned; and any person whose conveyance is subsequently recorded shall be considered a subsequent purchaser or encumbrancer and shall be subject to and bound by all the proceedings taken after the recording of the notice to the same extent as if [he] the person were made a party to such special assessment proceedings.

G. This notice need not be acknowledged to entitle it to be recorded.

H. Nothing [herein] in this section shall be construed to affect the priority of special assessment liens."

SECTION 2. Section 3-33-12 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-32-5) is amended to read:

"3-33-12. IMPROVEMENT DISTRICT--NOTICE OF ASSESSMENT--PROTESTS.--

A. The notice of the provisional order creating an improvement district shall:

(1) contain the time and place when the governing body shall hold a hearing on the provisional order creating the improvement district;

(2) describe [the improvement to be constructed and the general location thereof] in layman's terms understandable to the general public:

(a) the procedures for creating the improvement district, including the requirements for a public hearing and actions by property owners necessary to preserve their right to challenge the creation of an improvement district pursuant to Section 39-3-1.1 NMSA 1978;

(b) the specific purpose and nature and the general location of the proposed improvements within the proposed improvement district; and

(c) the estimated total cost of the proposed improvements, the time period over which the cost of those improvements are to be paid and the proposed method of determining assessments on properties within the proposed improvement district; and

(3) state that any interested person may ascertain in the office of the municipal clerk:

(a) a description of the property to be assessed; and

(b) the specific nature and maximum amount of benefit estimated to be conferred on each tract or parcel of land within the proposed district.

B. Not more than [thirty] forty-five days nor less than [ten] twenty days before the day of the hearing, the municipal clerk [his] or the clerk's deputy [or the engineer] shall mail the notice of the hearing on the provisional order to the owner of the tract or parcel of land being assessed the cost of the improvement at [his] the owner's last known address. The name and address of the owner of each tract of land shall be obtained from the records of the county assessor [or any other source the municipal clerk or engineer deems reliable], which records shall have been updated within thirty days prior to the date the notice is mailed. Proof of the mailing is to be made by affidavit of the municipal clerk [his] or the clerk's deputy [or the engineer], which shall be filed in the office of the municipal clerk. [Failure to mail any notice shall not invalidate any of the proceedings authorized in Sections 14-32-1 through 14-32-38 New Mexico Statutes Annotated, 1953 Compilation.]

C. Notice of the hearing shall also be published once each week for three consecutive weeks, and the last publication shall be at least one week prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher, which is to be filed in the office of the municipal clerk.

D. Notices of the hearing shall also be posted in three public places within the boundaries of the proposed improvement district not more than forty-five days nor less than twenty days before the hearing."

SECTION 3. Section 3-33-13 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-32-6, as amended) is amended to read:

"3-33-13. IMPROVEMENT DISTRICT--PROVISIONAL ORDER--PROTEST--APPEAL TO DISTRICT COURT.--

A. At the hearing of the governing body on the provisional order creating an improvement district, an interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:

(1) propriety and advisability of constructing the improvement;

(2) estimated cost of the improvement;

(3) manner of paying for the improvement; or

(4) estimated specific nature and maximum amount of direct benefit to [each] an individual tract or parcel of land.

B. The governing body may recess the hearing from time to time so that all protestants may be heard.

C. Within thirty days after the governing body has, by adoption of a resolution:

(1) concluded the hearing;

(2) determined:

(a) the advisability of constructing the improvement; and

(b) the type and character of the improvement; and

(3) created the improvement district, [a person who during the hearing filed a written protest with the governing body protesting the construction of the improvement may appeal the determination of the governing body] an owner of a tract or parcel of land assessed or upon which it is proposed to impose an improvement district property tax, whether the owner appeared at the hearing or not, may commence an appeal in district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

D. Where no person has filed a written protest during the hearing and all owners of property to be assessed, upon conclusion of the hearing, submit to the governing body written statements in favor of the creation of the improvement district for the types and character of improvements indicated in the provisional order, those owners shall be deemed to have waived their right to bring any action challenging the validity of the proceedings or the amount of benefit to be derived from the improvements."

SECTION 4. Section 3-33-21 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-32-14) is amended to read:

"3-33-21. IMPROVEMENT DISTRICT--ASSESSMENT ROLL--NOTICE OF ASSESSMENT HEARING.--

A. After the contract has been awarded and the governing body determines the total cost of the improvement to the municipality, the governing body shall determine what portion of the total cost of the improvement shall be assessed against the benefitted tract or parcel of land. The assessment, including the cost of the improvement at an intersection, shall not exceed the estimated direct benefit to the tract or parcel of land assessed.

B. With the engineer, the governing body shall prepare and cause to be filed in the office of the municipal clerk an assessment roll containing among other things:

(1) the name of the last known owner of the tract or parcel of land to be assessed or, if [his] the name is unknown, [state] the notation "unknown";

(2) a description of the tract or parcel of land to be assessed; and

(3) the amount of the assessment against each tract or parcel of land.

C. After the filing of the assessment roll, the governing body shall, by resolution, set a time and place for the assessment hearing when an owner may object to the amount of the assessment.

D. Not more than [thirty] forty-five days nor less than [ten] twenty days before the day of the hearing, the municipal clerk [his] or the clerk's deputy [or the engineer] shall mail the notice of the hearing on the assessment roll to the owner of the tract or parcel of land being assessed the cost of the improvement at [his] the owner's last known address. The name and address of the owner of each tract of land shall be obtained from the records of the county assessor [or any other source the municipal clerk or engineer deems reliable], which records shall have been updated within thirty days prior to the date the notice is mailed. Proof of the mailing is to be made by affidavit of the municipal clerk [his] or the clerk's deputy [or the engineer], which shall be filed in the office of the municipal clerk. [Failure to mail any notice shall not invalidate any of the proceedings authorized in Sections 14-32-1 through 14-32-38 New Mexico Statutes Annotated, 1953 Compilation.] The notice of the hearing shall also be published once each week for three consecutive weeks, and the last publication shall be at least one week prior to the day of the hearing. Such service by publication shall be verified by an affidavit of the publisher, which is to be filed in the office of the municipal clerk.

E. The notice of the assessment hearing required pursuant to Subsection D of this section shall include, for each tract or parcel of land to be assessed, the amount of the proposed assessment for that tract or parcel of land and the method by which the proposed assessment was determined."

SECTION 5. Section 3-33-22 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-32-15, as amended) is amended to read:

"3-33-22. IMPROVEMENT DISTRICT--FILING OF OBJECTIONS--

ASSESSMENT HEARING--ACTION OF THE GOVERNING BODY--APPEAL TO DISTRICT COURT.--

A. Not later than three days before the date of the hearing on the assessment roll, an objecting owner of a tract or parcel of land that is listed on the assessment roll [may] shall file [his] specific objections in writing with the municipal clerk. Unless presented as required in this section, an objection to the regularity, validity and correctness of:

(1) the proceedings;

(2) the assessment roll;

(3) each assessment contained on the assessment roll; [or]

(4) the method by which the assessment was determined; or

[(4)] (5) the amount of the assessment levied against each tract or parcel of land, is deemed waived.

B. At the hearing, the governing body shall hear all objections that have been filed as provided in this section and may recess the hearing and, by resolution, revise, correct, confirm or set aside an assessment and order that another assessment be made de novo.

C. The governing body by ordinance shall, by reference to the assessment roll as so modified, if modified, and as confirmed by the resolution, levy the assessments contained in the assessment roll. The assessments may be levied in stages if preliminary liens are established pursuant to Section 3-33-11 NMSA 1978. The decision, resolution and ordinance of the governing body is:

(1) a final determination of the regularity, validity and correctness of:

(a) the proceedings;

(b) the assessment roll;

(d) the amount of the assessment levied against each tract or parcel of land; and

(2) conclusive upon the owners of the tract or parcel of land assessed.

D. An owner who has filed an objection as provided in this section may commence an appeal in district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

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