2020 New Mexico Statutes
Chapter 73 - Special Districts
Article 21 - Water and Sanitation Districts
Section 73-21-9 - Hearing on petitions; election for organization and officers.
A. At any time after the filing of the petition for the organization of a district and before the day fixed for the hearing on it, the owner of any taxable property within the proposed district may file a petition with the court stating reasons why the property should not be included in the district and requesting that the property be excluded from it. The petition shall be verified and shall describe the property sought to be excluded. The court shall hear the petition and all objections to it at the time of the hearing on the petition for organization and shall determine whether the property should be excluded or included in the district.
B. In determining whether or not the petition for the creation of a water and sanitation district shall be granted, the district court shall consult and request an opinion from:
(1) the state engineer to determine whether the proposed district has adequate water rights to implement the proposed improvements; and
(2) the environmental improvement division of the department of environment to determine, as to the technological feasibility of the proposed improvements, whether the water proposed to be supplied is of an acceptable quality to conform with the state regulations and whether the liquid and solid waste disposal proposals can conform with state regulations.
C. The court may deny the petition or may order the petition to be modified if the court, after hearing on the petition, finds that:
(1) the proposed water and sewage improvements cannot conform with the state regulations;
(2) the water and sewage improvements cannot be implemented within a reasonable time taking into consideration applications for state and federal grants;
(3) there is lacking an actual or impending need for the water and sewage improvements proposed; or
(4) the boundaries of the proposed district contain land that has no actual or impending need for the water and sewage improvements or cannot be reasonably expected to utilize the water and sewage improvements, unless the land is otherwise required to be included in the proposed district by rule or regulation of a federal agency.
D. Upon the hearing, if it appears that a petition for the organization of a district has been properly signed and presented and that the allegations of the petition are true, the court shall order that the question of the organization of the district be submitted to the qualified electors of the district as set forth in the petition, as the boundaries were modified by the court in determining that only property to be benefited by the proposed improvements should be included within the boundaries of the district, at an election to be held for that purpose and conducted pursuant to the provisions of the Local Election Act [Chapter 1, Article 22 NMSA 1978]. The election shall be held in the district not less than ninety days after the order is entered in accordance with the Local Election Act; provided that the date does not conflict with the provisions of Section 1-24-1 NMSA 1978.
E. At the election, the qualified electors of the district shall vote for or against the organization of the district. If a majority of the votes cast at the election are in favor of the organization, the district court shall declare the district organized and give it a corporate name by which in all proceedings it shall thereafter be known. Thereupon the district shall be a governmental subdivision of the state, except a district created pursuant to a petition signed by the chair of the board of county commissioners of a county, which district shall be a subdivision of the county. Every district shall be a body corporate with all the powers of a public or quasi-municipal corporation.
History: 1941 Comp., § 77-3408, enacted by Laws 1943, ch. 80, § 8; 1953 Comp., § 75-18-8; Laws 1963, ch. 261, § 3; 1977, ch. 345, § 7; 1985, ch. 155, § 4; 2005, ch. 167, § 4; 2019, ch. 212, § 261.
ANNOTATIONSCross references. — For Election Code, see Chapter 1 NMSA 1978.
For publication of legal notice, see Chapter 14, Article 11 NMSA 1978.
For quo warranto, see 44-3-1 NMSA 1978.
For state engineer, see 72-2-1 NMSA 1978.
The 2019 amendment, effective April 3, 2019, provided that an election on the organization of a water and sanitation district be conducted pursuant to the Local Election Act, and revised the timing of holding an election on the organization of a water and sanitation district; deleted Subsections A and B and redesignated former Subsections C through F as Subsections A through D, respectively; in Subsection D, after "submitted to the", deleted "taxpaying" and added "qualified", after "held for that purpose and", deleted "the order shall designate one or more polling places within the district, and for each polling place so designated, shall appoint three taxpaying electors of the district as judges of the election and two taxpaying electors of the district as clerks of the election. The clerk of the court having jurisdiction shall give published notice of the time and place of an election to" and added "conducted pursuant to the provisions of the Local Election Act. The election shall", after "not less than", deleted "twenty" and added "ninety", and after "days after the", deleted "first publication of the notice" and added "order is entered in accordance with the Local Election Act; provided that the date does not conflict with the provisions of Section 1-24-1 NMSA 1978"; deleted Subsection G and redesignated former Subsection H as Subsection E; in Subsection E, after "election, the", deleted "taxpaying" and added "qualified", and after "organization of the district.", deleted "and if in favor thereof, shall vote for three taxpayingg electors of the district who shall constitute the board of directors of the district, one to act until the first biennial election, one until two years and one until four years after the election, except that at the election in a county where the petition for the district was signed by the chairman of the board of county commissioners, the taxpaying electors of the district shall vote only for or against the organization of the district."; deleted subsection designation "I." and the first sentence of former Subsection I, which provided "the judges of election shall certify the returns of the election to the district court having jurisdiction.", and after "thereafter be known", deleted "and designate the first board of directors elected, except that a district created pursuant to a petition signed by the chairman of the board of county commissioners of a county shall appoint the first board of directors as provided in Section 73-21-15.1 NMSA 1978"; and deleted former Subsection J.
The 2005 amendment, effective June 17, 2005, deleted the former requirement in Subsection A that the court determine the total number of taxpaying electors residing within the proposed district; deleted the former requirement in Subsection F that the court submit the question of the organization of the district to the taxpaying electors residing within the boundaries of the district; changed the former reference to the "last official registry lists of electors residing in the district" to the "official records" in Subsection G; and changed the former reference to "taxpaying electors" to "taxpaying electors of the district".
Purpose of limitation. — Reason for making order establishing district final, subject only to attack by state through quo warranto during a period of 30 days, is to make possible borrowing of money with assurance to lenders that they are dealing with qualified borrower which, in turn, would have effect of reducing interest rate to be paid on money obtained for public improvements. State ex rel. Speer v. District Court, 1968-NMSC-095, 79 N.M. 216, 441 P.2d 745.
Quo warranto exclusive remedy. — Quo warranto commenced by attorney general is only method for getting review and determination of court's action in entering order hereunder; no exception is made for claims of fraud, nor may organization of district be directly or collaterally brought into question. State ex rel. Speer v. District Court, 1968-NMSC-095, 79 N.M. 216, 441 P.2d 745.
Attack alleging fraud in organization of a district, brought some seven years after the district was organized, should not be considered as it is beyond trial court's jurisdiction, and such action was properly prohibited by supreme court. State ex rel. Speer v. District Court, 1968-NMSC-095, 79 N.M. 216, 441 P.2d 745.
Section controls over court rule. — Limitation in Subsection J was intended to apply even though fraud might be asserted at some later date; its provisions take precedence over any right preserved in the rules of civil procedure to make an attack for fraud upon court without limitations as to time. State ex rel. Speer v. District Court, 1968-NMSC-095, 79 N.M. 216, 441 P.2d 745.
Court order modifying a petition is final and therefore appealable. In re Lower Valley Water & Sanitation Dist., 1981-NMSC-088, 96 N.M. 532, 632 P.2d 1170.
Subsection D agencies have right to present views in court. — The legislature intended that the specific agencies mentioned in Subsection D have an opportunity to present their views to the district court. Failure to afford this opportunity is reversible error. In re Lower Valley Water & Sanitation Dist., 1981-NMSC-088, 96 N.M. 532, 632 P.2d 1170.
Subsection E conditions cannot be overridden by community considerations. — Subsection E specifies the conditions which permit a district court to modify or deny a petition, and broad considerations of community health and welfare cannot be invoked to override these considerations. In re Lower Valley Water & Sanitation Dist., 1981-NMSC-088, 96 N.M. 532, 632 P.2d 1170.
Appeals from water and sanitation district proceedings to be brought in district court. — Protests or appeal from proceedings conducted by officials of special districts, including water and sanitation districts, must first be brought in district court. Taos Ski Valley, Inc. v. Public Serv. Comm'n, 1984-NMSC-097, 101 N.M. 738, 688 P.2d 775.
Annexation not authorized. — Although water and sanitation district is a "body corporate with all the powers of a public or quasi-municipal corporation," it may not annex territory under the municipal code; public or quasi-municipal corporation is not a municipality for purposes of state law. 1976 Op. Att'y Gen. No. 76-33.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 81A C.J.S. States § 136.
