2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 2 - Incorporation of Municipality
Section 3-2-5 - Incorporation; duties of county commissioners after filing of petition to act; census required; election; right of appeal to district court.
A. After the petition for incorporation, together with the accompanying map or plat, the municipal services and revenue plan and the amount of money sufficient to pay the cost of a census have been filed with the board of county commissioners, the board of county commissioners, in lieu of complying with the requirements of Section 3-1-5 NMSA 1978, shall determine within thirty days after the filing of the petition:
(1) from the voter registration list in the office of the county clerk if the signers of the petition are qualified electors residing in the territory proposed to be incorporated; or
(2) from the tax schedules of the county if any of the owners of the real estate who signed the petition are delinquent in the payment of property taxes; and
(3) if the territory proposed to be incorporated is within an existing municipality or within the urbanized area of a municipality.
B. If the board of county commissioners determines that the territory proposed to be incorporated is:
(1) not within the boundary of an existing municipality and not within the urbanized area of a municipality; or
(2) within the urbanized area of another municipality and in compliance with Section 3-2-3 NMSA 1978, the board of county commissioners shall cause a census to be taken of the persons residing within the territory proposed to be incorporated.
C. The census shall be completed and filed with the board of county commissioners within thirty days after the board of county commissioners authorizes the taking of the census.
D. Within fifteen days after the date the results of the census and the municipal incorporation review team's report have been filed with the board of county commissioners, the board of county commissioners shall determine if the conditions for incorporation of the territory as a municipality have been met as required in Sections 3-2-1 through 3-2-3 NMSA 1978 and shall have its determination recorded in the minutes of its meeting.
E. Based on the census results and the municipal incorporation review team's report, if the board of county commissioners determines that the conditions for incorporation have not been met, the board of county commissioners shall notify the petitioners of its determination by publishing in a newspaper of general circulation in the territory proposed to be incorporated, once, not more than ten days after its determination, a notice of its determination that the conditions for incorporation have not been met. If there is no newspaper of general circulation in the territory proposed to be incorporated, notice of the determination shall be posted in eight public places within the territory proposed to be incorporated.
F. After the board of county commissioners has determined that all of the conditions for incorporation of the territory as a municipality have been met, the board of county commissioners shall hold an election on the question of incorporating the territory as a municipality. Special elections for the incorporation of municipalities shall only be held in June or July in odd-numbered years or July or August in even-numbered years and shall be held pursuant to the provisions of the Local Election Act [Chapter 1, Article 22 NMSA 1978]. The county clerk shall notify the secretary of finance and administration and the secretary of taxation and revenue of the date of the incorporation election within ten days after the adoption of the resolution calling the election.
G. The signers of the petition or a municipality within whose urbanized area the territory proposed to be incorporated is located may appeal any determination of the board of county commissioners to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
History: 1953 Comp., § 14-2-4, enacted by Laws 1965, ch. 300; 1981, ch. 205, § 1; 1985, ch. 208, § 3; 1998, ch. 55, § 3; 1999, ch. 265, § 3; 2013, ch. 120, § 3; 2018, ch. 79, § 44.
ANNOTATIONSCross references. — For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.
The 2018 amendment, effective July 1, 2018, provided certain requirements regarding when special elections for the incorporation of a territory as a municipality may be held, and provided that such elections shall be held pursuant to the provisions of the Local Election Act; and in Subsection F, added "Special" preceding "elections" in the second sentence, after "shall be held in", added "June or July in", after "odd-numbered years", deleted "on the first Tuesday in July or in any year on the first Tuesday in January, unless that Tuesday is a holiday, in which case the election shall be held on the second Tuesday in July or the second Tuesday in January" and added "or July or August in even-numbered years and shall be held pursuant to the provisions of the Local Election Act".
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 board of county commissioners to consider the municipal incorporation review team's report; in Subsection A, in the introductory sentence, after "accompanying map or plat", added "the municipal services and revenue plan", after "Section 3-1-5 NMSA 1978" added "shall determine", and after "filing of the petition", deleted "determine"; in Subsection D, after "the results of the census", added "and the municipal incorporation review team's report"; and in Subsection E, at the beginning of the sentence, added "Based on the census results and the municipal incorporation review team's report".
The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection F.
The 1998 amendment, effective September 1, 1998, in Subsection A, substituted "has" for "have" and inserted "Section"; in Paragraph A(1), deleted "registered" preceding "qualified"; in Paragraph A(2), substituted "schedules" for "rolls" and "are" for "is"; in Paragraph B(2), deleted "that the conditions for incorporation of a municipality", substituted "and in compliance with" for "as established in", and deleted "have been met" following "1978"; deleted "the board of county commissioners" in Subsection C; substituted "determination" for "determinations" in Subsection D; substituted "municipalities" for "municipalties" in Subsection E; in Subsection F, substituted "a" for "any" and inserted "pursuant to the provisions of Section 12-8A-1 NMSA 1978"; and made minor stylistic changes.
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.
Common-law dedication permitted. — A common-law dedication may still be effectively made, as the prescribed statutory method of doing so is not exclusive, so that an oral acceptance by the county commissioners plus public enjoyment of the property for 10 years or more satisfies the requirements of a common-law dedication. 1947 Op. Att'y Gen. No. 47-5024.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 62 C.J.S. Municipal Corporations § 25.
