A. Preliminary plats shall be submitted for type-one, type-two, type-three, except type-three subdivisions that are subject to review under summary procedure as set forth in Subsection I of this section, and type-four subdivisions.
B. Prior to approving the preliminary plat, the board of county commissioners of the county in which the subdivision is located shall require that the subdivider furnish documentation of:
(1) water sufficient in quantity to fulfill the maximum annual water requirements of the subdivision, including water for indoor and outdoor domestic uses;
(2) water of an acceptable quality for human consumption and measures to protect the water supply from contamination;
(3) the means of liquid waste disposal for the subdivision;
(4) the means of solid waste disposal for the subdivision;
(5) satisfactory roads to each parcel, including ingress and egress for emergency vehicles, and utility easements to each parcel;
(6) terrain management to protect against flooding, inadequate drainage and erosion; and
(7) protections for cultural properties, archaeological sites and unmarked burials that may be affected directly by the subdivision, as required by the Cultural Properties Act [18-6-1 to 18-6-17 NMSA 1978].
C. In addition to the requirements of Subsection B of this section, prior to approving the preliminary plat, the board of county commissioners of the county in which the subdivision is located shall:
(1) determine whether the subdivider can fulfill the proposals contained in the subdivider's disclosure statement required by Section 47-6-17 NMSA 1978; and
(2) determine whether the subdivision will conform with the New Mexico Subdivision Act and the county's subdivision regulations.
D. The board of county commissioners shall not approve the preliminary plat if the subdivider cannot reasonably demonstrate that the subdivider can fulfill the requirements of Subsections B and C of this section.
E. Any subdivider submitting a preliminary plat for approval shall submit sufficient information to the board of county commissioners to permit the board to determine whether the subdivider can fulfill the requirements of Subsections B and C of this section.
F. In determining whether a subdivider can fulfill the requirements of Subsections B and C of this section, the board of county commissioners shall, within ten days after the preliminary plat is deemed complete, request opinions from:
(1) the state engineer to determine:
(a) whether the subdivider can furnish water sufficient in quantity to fulfill the maximum annual water requirements of the subdivision, including water for indoor and outdoor domestic uses; and
(b) whether the subdivider can fulfill the proposals in the subdivider's disclosure statement concerning water, excepting water quality;
(2) the department of environment to determine:
(a) whether the subdivider can furnish water of an acceptable quality for human consumption and measures to protect the water supply from contamination in conformity with state regulations promulgated pursuant to the Environmental Improvement Act [Chapter 74, Article 1 NMSA 1978];
(b) whether there are sufficient liquid and solid waste disposal facilities to fulfill the requirements of the subdivision in conformity with state regulations promulgated pursuant to the Environmental Improvement Act, the Water Quality Act [Chapter 74, Article 6 NMSA 1978] and the Solid Waste Act [74-9-1 to 74-9-42 NMSA 1978]; and
(c) whether the subdivider can fulfill the proposals contained in the subdivider's disclosure statement concerning water quality and concerning liquid and solid waste disposal facilities;
(3) the department of transportation to determine whether the subdivider can fulfill the state highway access requirements for the subdivision in conformity with state regulations promulgated pursuant to Section 67-3-16 NMSA 1978;
(4) the soil and water conservation district to determine:
(a) whether the subdivider can furnish terrain management sufficient to protect against flooding, inadequate drainage and erosion; and
(b) whether the subdivider can fulfill the proposals contained in the subdivider's disclosure statement concerning terrain management;
(5) each Indian nation, tribe or pueblo with a historical, cultural or resource tie with the county that submits at least annually, via certified mail, return receipt requested, a written request for notification to the board of county commissioners, which request indicates the Indian nation, tribe or pueblo's historical, cultural or resource tie with the county, its contact information and a listing of the types of documentation required to be submitted by a subdivider to the county that may be necessary for its review to determine:
(a) whether the subdivider can furnish, fulfill or otherwise meet the requirements set forth in Paragraphs (1) through (4) of this subsection; and
(b) how the subdivider's proposed plat may directly affect cultural properties, archaeological sites and unmarked burials; and
(6) such other public agencies as the county deems necessary, such as local school districts and fire districts, to determine whether there are adequate facilities to accommodate the proposed subdivision.
G. If, in the opinion of each appropriate public agency or an Indian nation, tribe or pueblo, a subdivider can fulfill the requirements of Subsection F of this section, the board of county commissioners shall weigh these opinions in determining whether to approve the preliminary plat at a public hearing to be held in accordance with Section 47-6-14 NMSA 1978.
H. If, in the opinion of the appropriate public agency or an Indian nation, tribe or pueblo, a subdivider cannot fulfill the requirements of Subsection F of this section or, if the appropriate public agency or the Indian nation, tribe or pueblo does not have sufficient information upon which to base an opinion on any one of these subjects, the subdivider shall be notified of this fact by the board of county commissioners, and the procedure set out below shall be followed:
(1) if the appropriate public agency or the Indian nation, tribe or pueblo has rendered an adverse opinion, the board of county commissioners shall give the subdivider a copy of the opinion;
(2) the subdivider shall be given thirty days from the date of notification to submit additional information to the public agency or the Indian nation, tribe or pueblo through the board of county commissioners; and
(3) the public agency or the Indian nation, tribe or pueblo shall have thirty days from the date the subdivider submits additional information to change its opinion or issue a favorable opinion when it has withheld one because of insufficient information. No more than thirty days following the date of the expiration of the thirty-day period, during which the public agency or the Indian nation, tribe or pueblo reviews any additional information submitted by the subdivider, the board of county commissioners shall hold a public hearing in accordance with Section 47-6-14 NMSA 1978 to determine whether to approve the preliminary plat. Where the public agency has rendered an adverse opinion, the subdivider has the burden of showing that the adverse opinion is incorrect either as to factual or legal matters. Where the Indian nation, tribe or pueblo has rendered an adverse opinion, the subdivider may submit additional information to the board of county commissioners. If a public agency disagrees with an adverse opinion rendered by an Indian nation, tribe or pueblo, that agency shall submit a response to the board of county commissioners.
I. If a type-three subdivision contains five or fewer parcels of land, and unless the land within the subdivision has been previously identified in the county's comprehensive plan, as amended or supplemented, or zoning ordinances as an area subject to unique circumstances or conditions that require additional review:
(1) if the smallest parcel is not less than three acres in size, the board of county commissioners shall use the same summary procedure for reviewing the subdivision as the board uses for reviewing type-five subdivisions; or
(2) if the smallest parcel is less than three acres in size, the board of county commissioners may use the same summary procedure for reviewing the subdivision as the board uses for reviewing type-five subdivisions.
J. Prior to approving the final plat of a type-five subdivision, the board of county commissioners of the county in which the subdivision is located shall:
(1) determine whether the subdivider can fulfill the proposals contained in the subdivider's disclosure statement required by Section 47-6-17 NMSA 1978; and
(2) determine whether the subdivision conforms with the New Mexico Subdivision Act and the county's subdivision regulations.
K. The board of county commissioners shall not approve the final plat of any type-five subdivision if the subdivider cannot reasonably demonstrate that the subdivider can fulfill the requirements of Subsection J of this section.
L. Any subdivider submitting a plat of a type-five subdivision shall submit sufficient information to the board of county commissioners to permit the board to determine whether the subdivider can fulfill the requirements of Subsection J of this section.
M. The board of county commissioners shall by regulation establish a procedure for summary review for certain type-three subdivisions, as provided in Subsection I of this section, and all type-five subdivisions. If the board of county commissioners fails to adopt criteria for summary review, the board of county commissioners shall approve the plat if it complies with Sections 47-6-3 and 47-6-4 NMSA 1978 within the time limitation set forth in Section 47-6-22 NMSA 1978. The board of county commissioners may delegate to any county administrative officer or planning commission member the authority to approve any subdivision under summary review. Approval by summary review is conclusive evidence of the approval of the board of county commissioners.
History: 1953 Comp., § 70-5-11, enacted by Laws 1973, ch. 348, § 11; 1977, ch. 253, § 72; 1995, ch. 212, § 11; 2009, ch. 65, § 2.
ANNOTATIONSThe 2009 amendment, effective June 19, 2009, added Paragraph (5) of Subsection F; and in Subsections G and H, added "or an Indian nation, tribe or pueblo".
The 1995 amendment, effective July 1, 1996, rewrote the section to such an extent that a detailed comparison would be impracticable.
Standards may be broad. — Standards adopted pursuant to the New Mexico Subdivision Act may be broad, general standards, so long as they are capable of reasonable application and are sufficient to limit and define the board's discretionary powers. Parker v. Bd. of Cnty. Comm'rs, 1979-NMSC-101, 93 N.M. 641, 603 P.2d 1098.
Constitutionality of retroactive application of zoning ordinances. — The retroactive application of a new zoning ordinance to an administrative action in which the plaintiff only submitted an application for preliminary plat approval of its subdivision did not violate N.M. Const., art. IV, § 34 because plaintiff did not establish a "vested right" under the vested rights approach. There are two prongs which must be met for a vested right to exist. First, there must be approval by the regulatory body, and second, there must be a substantial change in position in reliance thereon. Brazos Land, Inc. v. Bd. of Cnty. Comm'rs, 1993-NMCA-013, 115 N.M. 168, 848 P.2d 1095.
Final decision rests with county. — The final decision whether or not to approve a proposal to construct a subdivision clearly rests with county governments, and county governments may apply their own discretion in weighing state agency opinions along with other evidence when making that decision consistent with the requirements of both county regulations and the Subdivision Act (Chapter 47, Article 6 NMSA 1978). C.F.T. Dev., LLC v. Board. of Cnty. Comm'rs, 2001-NMCA-069, 130 N.M. 775, 32 P.3d 784.
County determines "sufficient information". — Because the Subsection B (now Subsection E) requirement of submission of "sufficient information" is general, the county is left to determine what quantum of information amounts to "sufficient information" and to specify the form for acquiring it. Parker v. Bd. of Cnty. Comm'rs, 1979-NMSC-101, 93 N.M. 641, 603 P.2d 1098.
Claim for relief not provided. — The legislature did not provide that a landowner owning adjoining land to a subdivider have a claim for relief against a subdivider for violating Subsection A(6) (now B(6)). Gabaldon v. Sanchez, 1978-NMCA-103, 92 N.M. 224, 585 P.2d 1105.
When resubdivision must comply with current subdivision standards. — The later resubdivision or alteration of or amendment to pre-1973 subdivisions must comply with the new, current subdivision standards if such resubdivision activity substantially affects the new regulated areas of concern which are addressed by the new 1973 New Mexico Subdivision Act (i.e., sufficiency of water, quality of water, roads, etc.). 1982 Op. Att'y Gen. No. 82-11.
Law reviews. — For note, "Gabaldon v. Sanchez: New Developments in the Law of Nuisance, Negligence and Trespass," see 9 N.M.L. Rev. 367 (1979).
For note, "Definitional Loopholes Limit New Mexico Counties' Authority to Regulate Subdivisions," see 24 Nat. Res. J. 1083 (1984).
For article, "Rural Development Considerations for Growth Management," see 43 Nat. Res. J. 781 (2003).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 83 Am. Jur. 2d Zoning and Planning §§ 518 to 527, 531 to 534, 562 to 574.
Constitutionality, construction and application of statutes regulating the subdivision or development of land for sale or lease in lots or parcels, 122 A.L.R. 501.
63 C.J.S. Municipal Corporations §§ 1049, 1051, 1061, 1064.