2021 New Mexico Statutes
Chapter 3 - Municipalities
Article 2 - Incorporation of Municipality
Section 3-2-3 - Urbanized territory; incorporation limited within urbanized territory.
A. Urbanized territory is that territory within the same county and within five miles of the boundary of any municipality having a population of five thousand or more persons and that territory within the same county and within three miles of a municipality having a population of less than five thousand persons, except that territory in a county declared by an ordinance of the board of county commissioners to be a traditional historic community shall not be considered urbanized territory and shall not be annexed by a municipality unless it is considered for annexation pursuant to a petition requesting annexation signed by a majority of the qualified electors within the traditional historic community.
B. No territory within an urbanized territory shall be incorporated as a municipality unless the:
(1) municipality or municipalities causing the urbanized territory approve, by resolution, the incorporation of the territory as a municipality;
(2) residents of the territory proposed to be incorporated have filed with the municipality a valid petition to annex the territory proposed to be incorporated and the municipality fails, within one hundred twenty days after the filing of the annexation petition, to annex the territory proposed to be incorporated; or
(3) residents of the territory proposed to be annexed conclusively prove that the municipality is unable to provide municipal services within the territory proposed to be incorporated within the same period of time that the proposed municipality could provide municipal service.
C. A traditional historic community may become incorporated even though it is located within what is defined as urbanized territory pursuant to Subsection A of this section, by following the procedures set forth in Sections 3-2-5 through 3-2-9 NMSA 1978.
History: 1953 Comp., § 14-2-3, enacted by Laws 1965, ch. 300; Laws 1967, ch. 198, § 1; 1995, ch. 170, § 1; 2019, ch. 6, § 1; 2019, ch. 212, § 179.
ANNOTATIONS2019 Multiple Amendments. — Laws 2019, ch. 6, § 1, effective July 1, 2019, and Laws 2019, ch. 212, § 179, effective April 3, 2019, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2019, ch. 212, § 179 as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2019, ch. 6, § 1 and Laws 2019, ch. 212, § 179 are described below. To view the session laws in their entirety, see the 2019 session laws on NMOneSource.com.
The nature of the difference between the amendments is that Laws 2019, ch. 6, § 1, revised the qualifications for a territory to be considered an urbanized territory, and Laws 2019, ch. 212, § 179, removed "registered" preceding "qualified electors".
Laws 2019, ch. 6, § 1, effective July 1, 2019, revised the qualifications for a territory to be considered an urbanized territory; in Subsection A, after "except that territory in a", deleted "class B", after the next occurrence of "county", deleted "with a population between ninety-five thousand and ninety-nine thousand five hundred, based on the 1990 federal decennial census", and after "majority of the registered", deleted "qualified electors" and added "voters".
Laws 2019, ch. 212, § 179, effective April 3, 2019, in Subsection A, removed "registered" preceding "qualified electors".
The 1995 amendment, effective April 5, 1995, added the language in Subsection A beginning "except that territory in a class B county" and ending "qualified electors within the traditional historic community", deleted "shall" preceding "approve" in Paragraph B(1), and added Subsection C.
"Conclusively prove" construed. — Without deciding the necessity of following the procedures set forth in Subsections B(1) and (2), the district court properly found that an association of landowners had not proved conclusively, as required by Subsection B(3), that it could provide services to an urbanized territory proposed to be incorporated sooner than could the city. City of Sunland Park v. Santa Teresa Concerned Citizens Ass'n, 1990-NMSC-050, 110 N.M. 95, 792 P.2d 1138.
"Proposed to be annexed" construed. — 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.
