2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 2 - Incorporation of Municipality
Section 3-2-1 - Petition to incorporate area as a municipality; map and money for census.
A. The residents of territory proposed to be incorporated as a municipality may petition the board of county commissioners of the county in which the greatest portion of the territory proposed to be incorporated lies to incorporate the territory as a municipality. The petition shall:
(1) be in writing;
(2) state the name of the proposed municipality;
(3) describe the territory proposed to be incorporated as a municipality; and
(4) be signed by either:
(a) not less than two hundred qualified electors, each of whom shall, on the petition: 1) swear or affirm that the qualified elector has resided within the territory proposed to be incorporated for a period of six months immediately prior to the signing of the petition; and 2) list the street address of the qualified elector's residence; or
(b) the owners of not less than sixty percent of the real estate within the territory proposed to be incorporated who are not delinquent in their payment of real property taxes.
B. The petition shall be accompanied by:
(1) an accurate map or plat that shows the boundary of the territory proposed to be incorporated;
(2) a municipal services and revenue plan that describes the municipal services the proposed municipality will provide and the details of how the municipality will generate sufficient revenue to cover the costs of providing those services; and
(3) money in an amount determined by the board of county commissioners to be sufficient to conduct a census in the territory proposed to be incorporated. The money shall be deposited with the county treasurer for payment of the census required in Section 3-2-5 NMSA 1978.
C. The municipal services and revenue plan shall demonstrate that the proposed municipality will provide at least three of the following services and that it will have a tax base sufficient to pay the costs of those services:
(1) law enforcement;
(2) fire protection and fire safety;
(3) road and street construction and maintenance;
(4) solid waste management;
(5) water supply or distribution or both;
(6) wastewater treatment;
(7) storm water collection and disposal;
(8) electric or gas utility services;
(9) enforcement of building, housing, plumbing and electrical codes and other similar codes;
(10) planning and zoning; and
(11) recreational facilities.
D. The county shall forward the petition to the local government division of the department of finance and administration, which shall convene a municipal incorporation review team consisting of:
(1) the director of the local government division or the director's designee;
(2) the secretary of taxation and revenue or the secretary's designee;
(3) one representative of the county in which the proposed municipality would be located chosen by the board of county commissioners; and
(4) a representative of the New Mexico municipal league who shall be an advisory member of the review team.
E. The review team shall consider the petition and the required census results, evaluate the municipal services and revenue plan and determine whether the proposed municipality meets the requirements of Chapter 3, Article 2 NMSA 1978. If the review team finds that the proposed municipality meets the requirements of that article, it shall report its findings and recommendations to the board of county commissioners. If the review team finds that the proposed municipality does not meet the requirements of that article, the review team shall notify the board of county commissioners and the petitioners of deficiencies in the petition. The review team's notification of deficiencies in the municipal services and revenue plan suspends the attempt to incorporate. Petitioners have three months from the date of notification of deficiencies to submit an amended plan to the review team. If the amended plan is rejected by the review team for deficiencies, petitioners may not submit another petition to incorporate an area until at least one year after the date of that rejection.
History: 1953 Comp., § 14-2-1, enacted by Laws 1965, ch. 300.; 2013, ch. 120, § 1
ANNOTATIONSCross references. — For definition of "census", see 3-1-2 NMSA 1978.
For name of municipality, see 3-1-3 NMSA 1978.
For examination of signatures, purging and judicial review of petitions, see 3-1-5 NMSA 1978.
For execution and registration of warrants, see 3-37-5 NMSA 1978.
The 2013 amendment, effective June 14, 2013, required that petitioners present a municipal services and revenue plan that demonstrates that the services will be provided and how the services will be paid for; required the local government division to convene a review team to review petitions for incorporation; added Paragraph (2) of Subsection B; and added Subsections C, D and E.
Legislative intent. — The legislature has declared the public policy to be that the growth of municipalities and of their contiguous and urbanized areas shall take place in a planned and orderly manner; and to discourage splinter communities or a proliferation of neighboring, independent municipal bodies whose competing needs would divide tax revenues, multiply services, create confusion and factionalism among our citizens, and destroy the harmony that should exist between peoples of diverse backgrounds and socioeconomic strata within the state. City of Sunland Park v. Santa Teresa Concerned Citizens Ass'n, 1990-NMSC-050, 110 N.M. 95, 792 P.2d 1138.
The law does not contemplate incorporation of community land grant. Board of Trustees v. Sedillo, 1922-NMSC-027, 28 N.M. 53, 210 P. 102.
Incorporation of urbanized territory. — Where the provisional government of Santa Teresa (Santa Teresa), a New Mexico non-profit corporation consisting of owners of land in the Santa Teresa area in Do a Ana county, sought to incorporate the area as a municipality, separate from neighboring city of Sunland Park (Sunland Park), the district court erred in affirming the Do a Ana board of county commissioners' denial of Santa Teresa's petition to incorporate based on a determination that 3-2-3(B)(3) NMSA 1978 required Santa Teresa to first submit a formal petition asking Sunland Park to annex the subject territory, because 3-2-3(B)(3) NMSA 1978 does not require residents of a territory to first formally petition the existing municipality to annex the territory before they can file a petition to incorporate as a municipality; such residents may file an incorporation petition pursuant to 3-2-1 NMSA 1978 and 3-2-5 NMSA 1978 if the municipality informally proposes to consider or otherwise expresses an interest in annexing the territory, short of actually initiating formal annexation proceedings. Provisional Gov't of Santa Teresa v. Do a Ana Cnty. Bd. of Comm'rs, 2018-NMCA-070, cert. granted.
Effect of deficient petition. — The filing of a proper petition for incorporation is jurisdictional and objections to the petition's sufficiency may be raised at any time. An incorporation attempted under a petition that does not comply with the statutory prerequisites is null and void. Strict compliance with the statutory prerequisites to incorporation is required. Thus, the board was not estopped from denying the petition or litigating its deficiencies by the board's failure to point out the defects at an earlier stage of the proceedings. Citizens for Incorporation, Inc. v. Board of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2nd 250.
Effect of failure to sign petition as required. — Action of board in incorporating a village may be shown to have been without jurisdiction and void by establishing that the petition was not signed as required. State ex rel. Clancy v. Porter, 1917-NMSC-082, 23 N.M. 508, 169 P. 471.
Failure to "swear or affirm". — A sworn statement is one made under penalty of perjury. An affirmation substitutes for a sworn statement when the person has conscientious scruples against taking an oath; however, it too is made under penalty of perjury. Here, the petition does not contain any language indicating that persons who provide false information on the petition might be subject to the penalty of perjury. The petition also fails to include the statement that any perons knowingly giving false information on the petition is guilty of a fourth degree felony, as required by 3-1-5(C)(4) NMSA 1978. Citizens for Incorporation, Inc. v. Board of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2nd 250.
This section provides for additional requirements for petitions for incorporation and does not supersede those of 3-1-5 NMSA 1978. Citizens for Incorporation, Inc. v. Bd. of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2nd 250.
Requirement for description and map separate. — The statutory requirements that the petition contain a written description and an accurate map are separate and distinct. The legislature intended both requirements to be complied with. Additionally, the requirement that the map itself be accurate and fairly apprise the public of the property to be included in the proposed municipality is reasonable because not all members of the public will necessarily understand the legal description of the proposed municipality. Citizens for Incorporation, Inc. v. Board of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2nd 250.
When map insufficient. — A map is insufficient for incorporation purposes if people are misled or cannot determine whether their property is included in the area proposed to be incorporated. Citizens for Incorporation, Inc. v. Board of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2nd 250.
No refund of census expenses. — There is no provision allowing a refund of or reimbursement for census expenses if the petition is not granted. Citizens for Incorporation, Inc. v. Board of County Comm'rs, 1993-NMCA-069, 115 N.M. 710, 858 P.2d 86, cert. denied, 115 N.M. 602, 856 P.2d 250.
Requirement of domicile. — In using the word "reside" in this section, the legislature intended that the persons signing the petition for incorporation should be domiciled in the community involved and not claim some other state as their residence. Summer residents, although they may own real estate and pay real estate property taxes, who claim some other state as their domicile or legal residence, would not be eligible to sign such petition. 1954 Op. Att'y Gen. No. 54-6018.
Law reviews. — For comment, "Deannexation: A proposed statute," see 20 N.M.L. Rev. 713 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 28 to 33.
Constitutionality of statutes for formation of municipal corporations as affected by objection that they impose nonjudicial functions on courts, 69 A.L.R. 290.
Capacity to attack the fixing or extension of municipal limits or boundary, 13 A.L.R.2d 1279, 17 A.L.R.5th 195.
Right of one governmental subdivision to challenge annexation proceedings by another such subdivision, 17 A.L.R.5th 195.
62 C.J.S. Municipal Corporations § 10 et seq.
