2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 33 - Improvement Districts
Section 3-33-11 - Improvement district; provisional order method; procedure; preliminary lien; notice of pendency of district; effect.
A. Whenever the 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, 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) for each other type of project or other major component of the foregoing types of projects, a general description.
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:
(1) orders the improvement to be constructed;
(2) instructs the municipal clerk or engineer 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 the owners of the tracts or parcels to be encumbered with a preliminary assessment lien, 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 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 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 shall be construed to affect the priority of special assessment liens.
History: 1953 Comp., § 14-32-4, enacted by Laws 1965, ch. 300; 1991, ch. 199, § 8.
ANNOTATIONSThe 1991 amendment, effective April 4, 1991, added "preliminary lien; notice of pendency of district; effect" to the section heading; in Subsection B, added the language beginning "and, if the benefit" at the end of Subparagraph (b) in Paragraph (2) and inserted "road" in Subparagraph (a) in Paragraph (3); inserted "tax reimbursement, capital improvement, expansion, construction period interest, reserve fund, financing" in Subsection C; added Paragraph (3) in Subsection E and Subsections F to H; and made related and other stylistic changes throughout the section.
Statutory grant of power to municipalities to improve streets vests only when the proper method to implement that power is adopted. Bowdich v. City of Albuquerque, 1966-NMSC-133, 76 N.M. 511, 416 P.2d 523.
Section outlines steps. — The steps which a municipality shall take, when the governing body of the city feels that the interest of their municipality requires that any streets, alleys or any part thereof be graded, graveled, paved, macadamized, sidewalked, lighted or in any manner improved are outlined in part in this section. Bowdich v. City of Albuquerque, 1966-NMSC-133, 76 N.M. 511, 416 P.2d 523.
Conclusiveness in establishing district. — A city council in establishing a municipal improvement district is acting in its legislative capacity, and its action, in the absence of proof of fraud or such arbitrary conduct as amounts to fraud, is conclusive. Feldhake v. City of Santa Fe, 1956-NMSC-079, 61 N.M. 348, 300 P.2d 934.
Burden of proof in attacking establishment of district. — The burden of proof as to fraud or arbitrary conduct equivalent to fraud necessarily rests upon him who makes an attack upon the action of the city in determining that a municipal improvement district shall be established. Feldhake v. City of Santa Fe, 1956-NMSC-079, 61 N.M. 348, 300 P.2d 934.
Constitutionality of provisional order paving law. — "Provisional order" paving law does not violate the state and federal constitutions. Hodges v. City of Roswell, 1926-NMSC-016, 31 N.M. 384, 247 P. 310; Ellis v. New Mexico Constr. Co., 1921-NMSC-068, 27 N.M. 312, 201 P. 487.
Legislature intended when it adopted provisional order method of street improvement that repaving be a continuation of the paving power and the benefited owners be liable for the cost. Bowdich v. City of Albuquerque, 1966-NMSC-133, 76 N.M. 511, 416 P.2d 523.
Constitutionality of front-foot rule. — Laws authorizing the assessment of benefits by the front-foot rule are not in violation of either the federal or state constitutions as taking property without due process, in the absence of a showing that the assessment is arbitrary, capricious or confiscatory. Fowler v. City of Santa Fe, 1963-NMSC-045, 72 N.M. 60, 380 P.2d 511.
More than a mere division of costs on a front-foot basis among the lots affected is required to determine estimated benefits. Teutsch v. City of Santa Fe, 1966-NMSC-018, 75 N.M. 717, 410 P.2d 742.
Presumption that estimated benefit was basis for assessment. — It may fairly be presumed that officials charged with the duty of improvement district assessments made them on the basis of estimated benefit to the property assessed. Hedges v. City Comm'n, 1957-NMSC-042, 62 N.M. 421, 311 P.2d 649.
Reasonable future uses considered as benefit to assessed property. — Benefits to assessed property in an improvement district can be determined by considering reasonable future uses to which the property can be put. Clayton v. City of Farmington, 1985-NMCA-005, 102 N.M. 340, 695 P.2d 490.
Fees included in assessment. — Engineers' and attorneys' fees are properly chargeable as a part of the costs of a paving improvement, and, as such, are properly included in a local assessment against owners. Massengill v. City of Clovis, 1928-NMSC-047, 33 N.M. 519, 270 P. 886.
Paving includes curbing and guttering. — When it is declared that a street should be paved, the word "paved" includes not only the paving but also curbing and guttering as a necessary part of the project. Feldhake v. City of Santa Fe, 1956-NMSC-079, 61 N.M. 348, 300 P.2d 934.
Recitation of alternative kinds of paving satisfied statute. — Determination that streets were to be paved with a permanent pavement, reciting in the alternative several kinds of permanent paving, was sufficient to satisfy the statutory requirements. Hodges v. City of Roswell, 1926-NMSC-016, 31 N.M. 384, 247 P. 310.
Scope of judicial review regarding special assessments. — Because the basis and method of apportioning special assessments is committed to the judgment and sound discretion of the legislative tribunal having charge of such improvement, the decision of such tribunal will not be disturbed by the courts in the absence of a clear showing that such decision was wholly arbitrary, capricious or actuated by fraud or bad faith. Hedges v. City Comm'n, 1957-NMSC-042, 62 N.M. 421, 311 P.2d 649.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 70A Am. Jur. 2d Special or Local Assessment § 134 et seq.
