SB0382

SENATE BILL 382

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Jacob R. Candelaria

AN ACT

RELATING TO ORDINANCES; PROVIDING FOR CIVIL ENFORCEMENT AND CIVIL PENALTIES.

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

SECTION 1. Section 3-17-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-16-1, as amended) is amended to read:

"3-17-1. ORDINANCES--PURPOSES--ENFORCEMENT--PENALTIES.--The governing body of a municipality may adopt ordinances or resolutions not inconsistent with the laws of New Mexico for the purpose of:

A. effecting or discharging the powers and duties conferred by law upon the municipality;

B. providing for the safety, preserving the health, promoting the prosperity and improving the morals, order, comfort and convenience of the municipality and its inhabitants; and

C. enforcing obedience to the ordinances by:

(1) criminal prosecution in the municipal court and metropolitan courts and upon conviction the imposition of:

[(1)] (a) except for those violations of ordinances described in [Paragraphs (2) and (3)] Subparagraphs (b) and (c) of this [subsection] paragraph, a fine of not more than five hundred dollars ($500) or imprisonment for not more than ninety days or both;

[(2)] (b) for a violation of an ordinance prohibiting driving a motor vehicle while under the influence of intoxicating liquor or drugs, a fine of not more than one thousand dollars ($1,000) or imprisonment for not more than three hundred sixty-four days or both; and

[(3)] (c) for violations of an industrial user wastewater pretreatment ordinance as required by the United States environmental protection agency, a fine of not more than one thousand dollars ($1,000) a day for each violation; and

(2) civil enforcement pursuant to Section

3-17-1.1 NMSA 1978."

SECTION 2. A new section of the Municipal Code, Section 3-17-1.1 NMSA 1978, is enacted to read:

"3-17-1.1. [NEW MATERIAL] CIVIL ENFORCEMENT--PROCEDURES--PENALTIES--APPEAL.--

A. When a municipality elects to enforce provisions of an ordinance through a civil administrative process:

(1) the ordinance shall specify which provisions may be enforced through a civil administrative process;

(2) contested violations shall be adjudicated by an independent administrative hearing officer using a hearing procedure established by ordinance promulgated pursuant to Chapter 3, Article 21 NMSA 1978, which procedure shall meet all minimal due process requirements of the state and federal constitutions; and

(3) the hearing officer shall issue a decision on the merits of the appeal not more than thirty days after the completion of the hearing.

B. In addition to the actions authorized pursuant to Section 3-21-8 NMSA 1978, an administrative hearing officer may impose civil monetary penalties in accordance with the provisions of the ordinance.

C. The ordinance shall specify the civil monetary penalties that may be assessed for specific violations, and such civil penalties shall not exceed fifty dollars ($50.00) per day for each violation nor a maximum total penalty of five hundred dollars ($500).

D. Decisions made pursuant to Subsection A of this section may be appealed to district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

SECTION 3. Section 3-21-8 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-6, as amended) is amended to read:

"3-21-8. APPEALS TO ZONING AUTHORITY--GROUNDS--STAY OF PROCEEDINGS.--

A. The zoning authority shall provide by resolution the procedure to be followed in considering appeals allowed by this section.

B. Any aggrieved person or any officer, department, board or bureau of the zoning authority affected by a decision of an administrative officer, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or ordinance, resolution, rule or regulation adopted pursuant to these sections may appeal to the zoning authority or an independent administrative hearing officer. An appeal shall stay all proceedings in furtherance of the action appealed unless the officer, commission or committee from whom the appeal is taken certifies that by reason of facts stated in the certificate, a stay would cause imminent peril of life or property. Upon certification, the proceedings shall not be stayed except by order of district court after notice to the official, commission or committee from whom the appeal is taken and on due cause shown.

C. When an appeal alleges that there is error in any order, requirement, decision or determination by an administrative official, commission or committee in the enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or any ordinance, resolution, rule or regulation adopted pursuant to these sections, the zoning authority by a majority vote of all its members or the hearing officer may:

(1) authorize, in appropriate cases and subject to appropriate conditions and safeguards, variances or special exceptions from the terms of the zoning ordinance or resolution:

(a) that are not contrary

to the public interest;

(b) where, owing to special conditions, a literal enforcement of the zoning ordinance will result in unnecessary hardship;

(d) so that the goals and policies of the comprehensive plan are implemented; or

(2) in conformity with Sections 3-21-1 through 3-21-14 NMSA 1978:

(a) affirm or reverse any order, requirement, decision or determination of an administrative official, commission or committee;

(b) decide in favor of the appellant;

(c) make any change in any order, requirement, decision or determination of an administrative official, commission or committee."

SECTION 4. Section 3-21-10 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-8) is amended to read:

"3-21-10. ZONING ENFORCEMENT.--

A. Sections [14-20-1 through 14-20-12 New Mexico Statutes Annotated, 1953 Compilation] 3-21-1 through 3-21-14 NMSA 1978 and any ordinance adopted pursuant to these sections shall be enforced by the zoning authority having jurisdiction, as municipal and county ordinances are enforced.

B. In addition, if any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, structure or land is used in violation of Sections [14-20-1 through 14-20-12 New Mexico Statutes Annotated, 1953 Compilation] 3-21-1 through 3-21-14 NMSA 1978 or any ordinance adopted pursuant to these sections, the zoning authority may institute any appropriate action or proceedings to:

(1) prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use;

(2) restrain, correct or abate the violation;

(3) prevent the occupancy of such building, structure or land; or

(4) prevent any illegal act, conduct, business or use in or about such premises.

C. The ordinances, rules and regulations together with the officially adopted or district zoning map of the county or municipal zoning authority shall be filed in the respective offices of the county clerk or municipal clerk and shall be available for examination by any citizen."

SECTION 5. Section 3-21-15 NMSA 1978 (being Laws 1965, Chapter 206, Section 1) is amended to read:

"3-21-15. SHORT TITLE.--[This act] Sections 3-21-15 through 3-21-26 NMSA 1978 may be cited as the "Special Zoning District Act"."

SECTION 6. Section 3-21-23 NMSA 1978 (being Laws 1965, Chapter 206, Section 9) is amended to read:

"3-21-23. ORDINANCE--PENALTY--REMEDIES.--The commission may provide by ordinance for the civil or criminal enforcement of the Special Zoning District Act. A violation of the Special Zoning District Act or any ordinance made thereunder [is] may be a misdemeanor. If the Special Zoning District Act or any ordinance made thereunder is violated, the commission, in addition to other remedies, may institute any appropriate action or proceeding to prevent, abate or restrain the violation."

SECTION 7. Section 3-21-24 NMSA 1978 (being Laws 1965, Chapter 206, Section 10) is amended to read:

"3-21-24. ENFORCEMENT.--The ordinances enacted under the authority of the Special Zoning District Act shall be enforced by the district attorney and the sheriff of the county or counties in which the district is situate pursuant to the provisions of Sections 4-37-3 and 4-37-3.1 NMSA 1978."

SECTION 8. Section 3-21-25 NMSA 1978 (being Laws 1965, Chapter 206, Section 11) is amended to read:

"3-21-25. JUDICIAL REVIEW.--Any person aggrieved by any regulation, restriction or ordinance made by the commission may file a claim for relief in the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

SECTION 9. Section 4-37-3 NMSA 1978 (being Laws 1975, Chapter 312, Section 3, as amended) is amended to read:

"4-37-3. ENFORCING COUNTY ORDINANCES--JURISDICTION--PENALTIES--ENFORCEMENT.--

A. County ordinances may be enforced by prosecution for violations of those ordinances in any court of competent jurisdiction of the county. Penalties for violations of any county ordinances shall not exceed a fine of three hundred dollars ($300) or imprisonment for ninety days or both the fine and imprisonment; except that a county may enact and enforce ordinances that impose the following penalties in addition to any other penalty provided by law:

(1) no more than one thousand dollars ($1,000) for discarding or disposing of refuse, litter or garbage on public or private property in any manner other than by disposing it in an authorized landfill;

(2) no more than five thousand dollars ($5,000) for the improper or illegal disposal of hazardous materials or waste in any manner other than as provided for in the Hazardous Waste Act; and

(3) no more than imprisonment for three hundred sixty-four days or a fine of one thousand dollars ($1,000), or both, for violation of an ordinance regarding driving while under the influence of intoxicating liquor or drugs.

B. Prosecution of violations under this section may be commenced by the issuance of a citation charging the violation. Citations may be issued by the code enforcement officer of the county or an employee [or employees] of the county authorized by the board of county commissioners to issue such citations.

C. Violations may also be enforced through civil procedures pursuant to Section 4-37-3.1 NMSA 1978."

SECTION 10. A new Section 4-37-3.1 NMSA 1978 is enacted to read:

"4-37-3.1. [NEW MATERIAL] CIVIL ENFORCEMENT--PROCEDURES--PENALTIES--APPEAL.--

A. When a county elects to enforce provisions of an ordinance through a civil administrative process:

(1) the ordinance shall specify which provisions may be enforced through a civil administrative process;

(3) the hearing officer shall issue a decision on the merits of the appeal not more than thirty days after the completion of the hearing.

D. Decisions made pursuant to Subsection A of this section may be appealed to district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

SECTION 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

- 11 -