2020 New Mexico Statutes
Chapter 3 - Municipalities
Article 20 - Subdivisions; Planning and Platting
Section 3-20-1 - Definitions.
A. "Subdivide" or "subdivision" for the purpose of approval by a municipal planning authority means:
(1) for the area of land within the corporate boundaries of the municipality, the division of land into two or more parts by platting or by metes and bounds description into tracts for the purposes set forth in Subsection B of this section; and
(2) for the area of land within the municipal extraterritorial subdivision and platting jurisdiction, the division of land into two or more parts by platting or by metes and bounds description into tracts of less than five acres in any one calendar year for the purposes set forth in Subsection B of this section.
B. The division of land pursuant to Paragraph (1) or (2) of Subsection A of this section shall be for the purpose of:
(1) sale for building purposes;
(2) laying out a municipality or any part thereof;
(3) adding to a municipality;
(4) laying out suburban lots; or
(5) resubdivision.
C. "Plat" means a map, chart, survey, plan or replat certified by a licensed land surveyor containing a description of the subdivided land with ties to permanent monuments.
History: 1978 Comp., § 3-20-1, enacted by Laws 1979, ch. 331, § 1.
ANNOTATIONSRepeals and reenactments. — Laws 1979, ch. 331, § 1, repealed former 3-20-1 NMSA 1978, relating to meaning of "subdivision" and "plat," and enacted a newsection.
Cross references. — For annexation of territory, see 3-7-1 NMSA 1978 et seq.
For establishment, powers and authority of planning commission, see 3-19-1 NMSA 1978 et seq.
For Land Subdivision Act, see 47-5-1 NMSA 1978 et seq.
For New Mexico Subdivision Act, see 47-6-1 NMSA 1978 et seq.
Rules for construing restrictive covenants. — In construing restrictive covenants, words in a restrictive covenant will be given their ordinary and intended meaning, the language will be construed strictly in favor of the free enjoyment of the property and against restrictions, but not so strictly as to create an illogical, unnatural, or strained construction, and restrictions will not be read into covenants by implication. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110.
Meaning of the term "private garage" was ambiguous. — Where restrictive covenants allowed a "private garage" to be built on a subdivision lot and the covenants did not define the term or include an explicit limitation on the size of a garage, the term was ambiguous with respect to size. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110.
Meaning of the term "private garage". — The term "private garage" means a structure or area whose essential purpose is the storage of motor vehicles by the owners and not by the general public. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110.
Structure was a "private garage". — Where restrictive covenants allowed a "private garage" to be built on a subdivision lot; the covenants did not define the term or include an explicit limitation on the size of a garage; the owner of the lot, who was a car collector, built a 50 x 10 garage to store the owner's car collection; and the garage had three doors capable of admitting two cars side-by-side and a taller, more narrow door allowing entrance into a bay containing a hydraulic lift and a small room for an office, the garage was a "private garage" within the meaning of the covenants. Sabatini v. Roybal, 2011-NMCA-086, 150 N.M. 478, 261 P.3d 1110.
Restrictive covenant disallowing poultry was ambiguous. — Where subdivision association sued defendant hen owners to rid their properties of hens, claiming that a subdivision covenant disallowed "animals, birds, or poultry" on residents' lots unless kept as recognized household pets, summary judgment in favor of the subdivision association was improper where the district court found that the covenant language was unclear and ambiguous, but failed to resolve the restrictive covenant in favor of the free enjoyment of the property and against the restrictions; failure to apply the rules of construction of restrictive covenants is an error of law. Eldorado Cmty. Improvement Ass'n v. Billings, 2016-NMCA-057.
Interpretation of covenants. — The courts are not obligated to apply the rule of strict construction in determining whether the language of a restrictive covenant is ambiguous or in resolving a factual dispute regarding the restrictive covenant. The intent of the parties controls the interpretation of restrictive covenants. Agua Fria Save the Open Space Ass'n v. Rowe, 2011-NMCA-054, 149 N.M. 812, 255 P.3d 390.
Covenants were ambiguous. — Where defendant acquired a seven acre parcel in a subdivision that was subject to restrictive covenants; the covenants provided that the covenants could be extinguished as to any "block or tract" by three-fourths of the owners of the "block or tract" "voting according to front foot holding, each front foot counting as one vote"; the extinguishment provision was ambiguous as applied to defendant's parcel, because although the parcel was a "block or tract", the parcel was unsubdivided and the extinguishment provision appeared to contemplate a subdivided block or tract, with multiple separate-owner lots voting according to front foot holding, the district court was required to determine the intent of the original developers of the subdivision to determine whether the extinguishment provision applied to defendant's parcel. Agua Fria Save the Open Space Ass'n v. Rowe, 2011-NMCA-054, 149 N.M. 812, 255 P.3d 390.
Reasonableness of subdivision covenant amendments is a question of fact. — Where the original covenants of a subdivision in which plaintiffs owned a remote lot provided that the homeowner's association was responsible for maintaining all roads in the subdivision, including the road that served plaintiffs' lot; the homeowner's association amended the covenants to limit the homeowner's association's maintenance responsibility to specific roads that led to common recreation areas; the amendment excluded the road to plaintiffs' lot, but included roads that led to the majority of lots in the subdivision; and plaintiffs were still required to pay common assessments to fund maintenance costs of roads to the common recreation areas and to privately maintain the road to their lot, the issue of whether the amendment was reasonable was a question of fact and the district court erred in awarding summary judgment for the homeowner's association. Nettles v. Ticonderoga Owner's Ass'n, Inc., 2013-NMSC-030.
Amendment procedures of restrictive covenants were ambiguous. — Where plaintiffs attempted to enforce a subdivision's restrictive covenants that prohibited trees in the subdivision from interfering with homeowners' views; the majority of owners amended the restrictive covenants to eliminate the foliage restriction that plaintiffs sought to enforce; the duration clause of the restrictive covenants required that seventy-five percent of the owners approve revisions of the covenants during the term of the covenants; and the amendment clause required that fifty-one percent of the owners approve amendments, the covenants were ambiguous as to the majority required to amend the covenants so that the validity of the amendment of the foliage restriction could not be determined as a matter of law. Lawton v. Schwartz, 2013-NMCA-086.
Amendment of restrictive covenants. — Where restrictive covenants that were recorded in 1936 provided that the covenants would remain in force until July 1, 1960, and thereafter until such time as the covenants were modified or abrogated by a vote of two-thirds of the owners of lots within the subdivision; the unanimous agreement in 1940 of all the then-owners of the property in the subdivision was effective to amend the 1936 covenants and replaced them with the 1940 covenants. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Where restrictive covenants provided that the covenants would be binding until January 1, 1965, at which time the covenants would be automatically extended for successive periods of ten years unless by a vote of the majority of the then-owners of lots it was agreed to change the covenants, and in May 2005, a majority of the owners of lots in the subdivision recorded an agreement to modify the covenants, the amendments would not go into effect until January 1, 2015. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Clear language of restrictive covenants prohibited subdivision of lot. — Where the landowner's lot was .511 acres; the landowner proposed to subdivide the lot into a .215-acre lot and a .294-acre lot, each with a single-family home on it; and the restrictive covenants of the subdivision provided that "no residential structure shall be erected or placed on any building plot, which plot has an area of less than one-half acre", the landowner was prohibited from dividing the landowner's lot into two lots that are less than one-half acre and maintaining a residential structure on each lot. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Relevant evidence of changed conditions and acquiescence. — Where defendant proposed to subdivide a lot into two lots with a single-family home on each lot; each of the proposed lots was less than one-half acre; the restrictive covenants of the subdivision prohibited defendant from dividing the lot into lots that were less than one-half acre and maintaining a residential structure on each lot; and defendant raised equitable defenses to enforcement of the restrictive covenants, evidence that a significant number of lots in the subdivision contained multifamily residences, that guest houses associated with primary single-family residences were being used as additional single-family residences, and that non-residential structures had been built on residential lots in violation of the covenants was relevant to the question of whether changed conditions and plaintiff's acquiescence in covenant violations prevented enforcement of the restrictive covenants. Heltman v. Catanach, 2010-NMCA-016, 148 N.M. 67, 229 P.3d 1239, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Minor violations of restrictive covenants were not changed conditions. — Where defendant operated dog training and dog boarding businesses on defendant's property in a residential subdivision and constructed a metal outbuilding on the property for use with the businesses, which clearly violated the subdivision's restrictive covenants; the subdivision consisted of fifty-two lots; an auto mechanic had operated a shop on one lot and had built a small shop building on the lot in the style of the residential structure; another homeowner operated a business rebuilding backhoes and Volkswagens and dealing guns; and by the time defendant constructed the metal building, the other commercial activities had moved out of the subdivision and there was no commercial activity in operation in the subdivision other than defendant's businesses, the district court did not abuse its discretion in refusing to set aside the covenants restricting commercial structures and activities on the basis of changed conditions, because the number, magnitude and tenor of violations of the subdivision's covenants by the other commercial activities were not radical changes that frustrated the purpose and intent of the covenants restricting commercial structures and activities. Myers v. Armstrong, 2014-NMCA-051.
Effect of acquiescence in minor violations of restrictive covenants. — Individual owners in a subdivision are not required to take action to enforce the subdivision's restrictive covenants against relatively minor violations that have little impact on the owners in order to maintain the right to enforce the covenants against violations that significantly impact their rights. Myers v. Armstrong, 2014-NMCA-051.
Where defendant operated dog training and dog boarding businesses on defendant's property in a residential subdivision and constructed a metal outbuilding on the property for use with the businesses which clearly violated the subdivision's restrictive covenants; plaintiffs were aware of and never objected to violations of the covenants by an auto mechanic who had operated a shop on one lot and built a small shop building on the lot in the style of the residential structure and by a homeowner who had a business rebuilding backhoes and Volkswagens and dealing guns; by the time defendant constructed the metal building, the other commercial activities had moved out of the subdivision and there was no other commercial activity in operation in the subdivision other than defendant's businesses; plaintiffs did not attempt to enforce the covenants until defendant built the metal building on defendant's property; the covenants provided that the failure to promptly enforce the covenant did not bar subsequent enforcement; and the impact of the other violations of the covenants were minor and trivial compared to the impact of defendant's building and businesses, plaintiff did not waive the right to enforce the covenants by acquiescence. Myers v. Armstrong, 2014-NMCA-051.
Short term rental did not violate restrictive covenant limiting use to single-family residential purposes. — Where the restrictive covenants of the subdivision provided that lots could be used only for single-family purposes; defendant rented defendant's home to families for a minimum rental term of three nights; defendant did not rent individual rooms or rent to more than eight people; and defendant charged renters a lodger's tax but did not have a business license for defendant's rental activity, an economic benefit accruing to defendant from the rental of defendant's home, whether long-or-short term, did not by itself constitute an impermissible business or commercial activity under the "single-family residential purposes" restrictive covenant. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Scope of homeowners' association's rule-making authority. — Under a general grant of rule-making authority, a homeowners' association's authority to impose restrictions on individually owned property pursuant to the homeowners' association's rules is limited to protecting common property and individually owned lots from any unreasonable interference by another lot owner's use of that owner's property. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Homeowners' association exceeded its rule-making authority in adopting rules prohibiting short term rentals. — Where the restrict covenants of a subdivision did not prohibit short-term rental of property in the subdivision; the initial rules for the subdivision contained design principles for the subdivision and granted the homeowners' association authority to adopt further rules to govern the conduct of all persons occupying any part of the subdivision; the homeowners' association promulgated a rule that prohibited owners from renting their homes for less than a thirty day term; and defendant rented defendant's home to families for a minimum rental term of three nights, the homeowners' association had no authority under the general grant of authority to promulgate rules to restrict rental activity in the subdivision and the rule was an unreasonable and invalid restriction on defendant's use of defendant's property. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Amendment of restrictive covenants was invalid. — Where the duration clause of the declaration of covenants of a subdivision provided that the declaration would run for twenty-five years, after which the declaration would be extended for additional successive periods of ten years unless owners of two-thirds of the lots in the subdivision approved amendments to the declaration and during the initial twenty-five year term of the declaration, more than two-thirds, but not all, of the owners of lots approved an amendment of the declaration that prohibited rentals of property in the subdivision for less than ninety days, the amendment was void because the unanimous approval of the homeowner's association's members was required to amend the declaration during the initial twenty-five-year term. Estates at Desert Ridge Trails v. Vasquez, 2013-NMCA-051, 300 P.3d 736.
Family transfer. — Where a partnership of two families divided eighty acres into four twenty-acre parcels and deeded two twenty-acre parcels to each family; each husband then deeded to his wife one twenty-acre tract; the parties then filed a family transfer application pursuant to the Santa Fe County Land Development Code to allow each landowner to deed his or her spouse one-half of each twenty-acre parcel which, if approved, would have resulted in eight ten-acre lots with each lot separately owned by one of the landowners; the code provided for minimum lot size family transfers and for small lot family transfers; the minimum lot size family transfer provisions had no intent or purpose requirements; the small lot family transfer provisions provided that the purpose of the small lot family transfer was to maintain local cultural values by perpetuating and protecting a traditional method of land transfer within families and imposed requirements to achieve that purpose; and the county development review board denied the landowners' minimum size lot family transfer application on the ground that the transfer did not meet the intent and purpose of the small lot family transfer provisions of the code, the board's decision was unreasonable and unlawful. Kirkpatrick v. Board of County Comm'rs of Santa Fe Cnty., 2009-NMCA-110, 147 N.M. 127, 217 P.3d 613.
Elements of proving "subdivision". — Where a municipality seeks to prove that transfers by owners of land within its extraterritorial zoning jurisdiction created a "subdivision", the municipality has the burden of proof and if it does not show that the transfers were for "building purposes" it fails to carry that burden. Gallegos v. City of Las Vegas, 1998-NMCA-054, 125 N.M. 125, 957 P.2d 1159.
Effect of lack of architectural control committee. — Where defendant operated dog training and dog boarding businesses on defendant's property in a residential subdivision and constructed a metal outbuilding on the property for use with the businesses; the subdivision's restrictive covenants provided that all lots were for residential purposes only, dogs could be kept for household and non-commercial uses, only single-family and related structures were permissible, and all improvements had to be approved by an architectural control committee; and the subdivision's architectural control committee ceased to exist before defendant began operating businesses on defendant's property, the lack of an active architectural control committee did not excuse defendant from complying with the remainder of the covenants which clearly prohibited defendant from operating defendant's businesses from the property and from constructing a commercial building on the property. Myers v. Armstrong, 2014-NMCA-051.
Division of lot held to be "subdivision". — The division of a lot, located within the five-mile extraterritorial subdivision and platting jurisdiction of a city, into four parcels by a purchaser is a "subdivision" under city jurisdiction. 1982 Op. Att'y Gen. No. 82-04.
Standards governing approval of plats. — A city may, in connection with reasonable exercise of the police power, adopt standards governing the approval of subdivision plats. Such standards may include requirements for placement of utilities, for the location of streets, for minimum lot sizes, for securing safety from fire, flood, pollution or other dangers or other requirements necessary to the orderly, safe, healthy development of the city. 1960 Op. Att'y Gen. No. 60-70.
Law reviews. — For article, "Rural Development Considerations for Growth Management", see 43 Nat. Resources J. 781 (2003).
For comment, "Regional Planning - Subdivision Control - New Mexico's New Municipal Code," see 6 Nat. Resources J. 135 (1966).
For comment, "Land Use Planning - New Mexico's Green Belt Law," see 8 Nat. Resources J. 190 (1968).
For note, "County Regulation of Land Use and Development," see 9 Nat. Resources J. 266 (1969).
For note, "Definitional Loopholes Limit New Mexico Counties' Authority to Regulate Subdivisions," see 24 Nat. Resources J. 1083 (1984).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 83 Am. Jur. 2d Zoning and Planning §§ 518 to 561.
Construction of regulations as to subdivision maps or plats, 11 A.L.R.2d 524.
