As used in the New Mexico Subdivision Act:
A. "board of county commissioners" means the governing board of a county;
B. "common promotional plan" means a plan or scheme of operation, undertaken by a single subdivider or a group of subdividers acting in concert, to offer for sale or lease parcels of land where the land is either contiguous or part of the same area of land or is known, designated or advertised as a common unit or by a common name;
C. "final plat" means a map, chart, survey, plan or replat certified by a licensed, registered land surveyor containing a description of the subdivided land with ties to permanent monuments prepared in a form suitable for filing of record;
D. "immediate family member" means a husband, wife, father, stepfather, mother, stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece, whether related by natural birth or adoption;
E. "Indian nation, tribe or pueblo" means any federally recognized Indian nation, tribe or pueblo located wholly or partially in New Mexico;
F. "lease" means to lease or offer to lease land;
G. "parcel" means land capable of being described by location and boundaries and not dedicated for public or common use;
H. "person" means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity;
I. "preliminary plat" means a map of a proposed subdivision showing the character and proposed layout of the subdivision and the existing conditions in and around it, and need not be based upon an accurate and detailed survey of the land;
J. "sell" means to sell or offer to sell land;
K. "subdivide" means to divide a surface area of land into a subdivision;
L. "subdivider" means any person who creates or who has created a subdivision individually or as part of a common promotional plan or any person engaged in the sale, lease or other conveyance of subdivided land; however, "subdivider" does not include any duly licensed real estate broker or salesperson acting on another's account;
M. "subdivision" means the division of a surface area of land, including land within a previously approved subdivision, into two or more parcels for the purpose of sale, lease or other conveyance or for building development, whether immediate or future; but "subdivision" does not include:
(1) the sale, lease or other conveyance of any parcel that is thirty-five acres or larger in size within any twelve-month period; provided that the land has been used primarily and continuously for agricultural purposes, in accordance with Section 7-36-20 NMSA 1978, for the preceding three years;
(2) the sale or lease of apartments, offices, stores or similar space within a building;
(3) the division of land within the boundaries of a municipality;
(4) the division of land in which only gas, oil, mineral or water rights are severed from the surface ownership of the land;
(5) the division of land created by court order where the order creates no more than one parcel per party;
(6) the division of land for grazing or farming activities; provided the land continues to be used for grazing or farming activities;
(7) the division of land resulting only in the alteration of parcel boundaries where parcels are altered for the purpose of increasing or reducing the size of contiguous parcels and where the number of parcels is not increased;
(8) the division of land to create burial plots in a cemetery;
(9) the division of land to create a parcel that is sold or donated as a gift to an immediate family member; however, this exception shall be limited to allow the seller or donor to sell or give no more than one parcel per tract of land per immediate family member;
(10) the division of land created to provide security for mortgages, liens or deeds of trust; provided that the division of land is not the result of a seller-financed transaction;
(11) the sale, lease or other conveyance of land that creates no parcel smaller than one hundred forty acres;
(12) the division of land to create a parcel that is donated to any trust or nonprofit corporation granted an exemption from federal income tax, as described in Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended; school, college or other institution with a defined curriculum and a student body and faculty that conducts classes on a regular basis; or church or group organized for the purpose of divine worship, religious teaching or other specifically religious activity; or
(13) the division of a tract of land into two parcels that conform with applicable zoning ordinances; provided that a second or subsequent division of either of the two parcels within five years of the date of the division of the original tract of land shall be subject to the provisions of the New Mexico Subdivision Act; provided further that a survey, and a deed if a parcel is subsequently conveyed, shall be filed with the county clerk indicating that the parcel shall be subject to the provisions of the New Mexico Subdivision Act if the parcel is further divided within five years of the date of the division of the original tract of land;
N. "terrain management" means the control of floods, drainage and erosion and measures required for adapting proposed development to existing soil characteristics and topography;
O. "time of purchase, lease or other conveyance" means the time of signing any document obligating the person signing the document to purchase, lease or otherwise acquire a legal interest in land;
P. "type-one subdivision" means any subdivision containing five hundred or more parcels, any one of which is less than ten acres in size;
Q. "type-two subdivision" means any subdivision containing not fewer than twenty-five but not more than four hundred ninety-nine parcels, any one of which is less than ten acres in size;
R. "type-three subdivision" means any subdivision containing not more than twenty-four parcels, any one of which is less than ten acres in size;
S. "type-four subdivision" means any subdivision containing twenty-five or more parcels, each of which is ten acres or more in size; and
T. "type-five subdivision" means any subdivision containing not more than twenty-four parcels, each of which is ten acres or more in size.
History: 1953 Comp., § 70-5-2, enacted by Laws 1973, ch. 348, § 2; 1979, ch. 172, § 1; 1981, ch. 148, § 1; 1995, ch. 212, § 2; 2005, ch. 139, § 1; 2009, ch. 65, § 1; 2013, ch. 96, § 1.
ANNOTATIONSThe 2013 amendment, effective June 14, 2013, clarified an exception to the definition of "subdivision", deleted former Paragraph 13 of Subsection M, which excepted the conveyance of a single tract of land within a five-year period; and added Paragraph (13) of Subsection M.
The 2009 amendment, effective June 19, 2009, added Subsection E.
The 2005 amendment, effective June 17, 2005, added a definition of "board of county commissioners", moved the definition of "common promotional plan" in former Subsection M to Subsection B and moved the definition of "final plat" in former Subsection E to Subsection C.
The 1995 amendment, effective July 1, 1996, rewrote the section to such an extent that a detailed comparison would be impracticable.
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. Santa Fe Cnty. Bd. of Comm'rs, 2009-NMCA-110, 147 N.M. 127, 217 P.3d 613.
Mobile home park. — Mobile home park project was a "subdivision" as contemplated by the county's planning and platting ordinance, the New Mexico Subdivision Act, and the village's subdivision ordinances. Sandoval Cnty. Bd. of Comm'rs v. Ruiz, 1995-NMCA-023, 119 N.M. 586, 893 P.2d 482.
Mere division of land is not subdivision: there must be proof that at some time prior to alienation, there has been a division of one parcel into five or more, and that the dividing was done so that the smaller parcels could be sold or leased. State ex rel. Anaya v. Select W. Lands, Inc., 1979-NMCA-161, 94 N.M. 555, 613 P.2d 425, cert. quashed, 94 N.M. 675, 615 P.2d 992 (1980).
Owner must manifest fact of division before parcels offered for sale. — The owner must manifest by some overt conduct a clear indication that a division has already taken place before the parcels are offered for sale. State ex rel. Anaya v. Select W. Lands, Inc., 1979-NMCA-161, 94 N.M. 555, 613 P.2d 425, cert. quashed, 94 N.M. 675, 615 P.2d 992 (1980).
Division of lot into two lots was "subdivision". — Seller's division of twenty-acre plot into two ten-acre plots, although allegedly made in order to help buyer acquire financing, was nonetheless a "subdivision" of the property; because seller, as a result, had subdivided the land five times in three years, seller became a "subdivider" within the meaning of former Subsection I, and was therefore subject under this act to the state's action for costs of platting and basic infrastructure. State ex rel. Udall v. Cresswell, 1998-NMCA-072, 125 N.M. 276, 960 P.2d 818, cert. denied, 125 N.M. 147, 958 P.2d 105.
Order not authorized. — Order obtained by attorney general compelling performance by defendant subdividers of a duty that the Act imposes only on a subdivider of a larger subdivision was not authorized under the Act. State ex rel. Stratton v. Alto Land & Cattle Co., 1991-NMCA-146, 113 N.M. 276, 824 P.2d 1078.
Party dividing land need not own the land outright in fee simple in order to be subdivider; he need only be creating a subdivision. 1978 Op. Att'y Gen. No. 78-19.
Subdivider includes purchaser under executory real estate contract. — The definition of a "subdivider" includes an individual who is a purchaser under an executory real estate contract which provides for rescission or forfeiture for a breach of certain covenants. 1978 Op. Att'y Gen. No. 78-19.
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.
If the county commission determines that amendments to a pre-1973 plat are merely minor adjustments of boundaries, the amendments fall within the scope of the Subsection I(7) exemption, and no reevaluation under the 1973 New Mexico Subdivision Act is triggered. If the commission concludes, on the other hand, that the plat amendments constitute a major revision of the original subdivision, the 1973 standards apply. In either event, the county commission must examine the proposed amendments to the old plats to make such a determination. 1982 Op. Att'y Gen. No. 82-11.
If proposed alterations to a pre-1973 subdivision involve a wholesale vacating of an entire platted area and subsequent transfer of those vacated lots into a previously unplatted area, such resubdivision efforts rise to the level of an entirely new subdivision which would require the subdivider to apply for subdivision approval under the 1973 New Mexico Subdivision Act as a "new" subdivision. 1982 Op. Att'y Gen. No. 82-11.
Division of lot into four lots not "subdivision". — The division of a lot in an approved subdivision into four or fewer lots by a purchaser does not constitute a "subdivision" under the New Mexico Subdivision Act. 1982 Op. Att'y Gen. No. 82-04.
Division of land upon dissolution of partnership not a subdivision. — A partnership of two individuals subdivided and sold four parcels from within an original tract and retained ownership over the remaining acreage in the name of the partnership. Thereafter the partnership dissolved and the remaining property was divided between the two former partners through an exchange of quit claim deeds. The existing divisions and sales do not now constitute a "subdivision" within the meaning of the act. Only four parcels have been subdivided and sold. Although a further division took place into two parcels upon dissolution of the partnership, such a subdivision would not be for the purpose of sale or lease so long as the parcels are retained by the owners of the original tract. 1977 Op. Att'y Gen. No. 77-22.
Partnership's subdivisions are added to subsequent individual transfers. — However, if either former partner subdivides and sells or leases one more parcel from within the original tract, the entire tract would become a "subdivision" within the meaning of this section. 1977 Op. Att'y Gen. No. 77-22.
County cannot extend "subdivision" time limit beyond three years. — Since this section sets forth a three-year time limit, a county commission cannot, by regulation, extend the definition of "subdivision" to divisions of land over five years. 1981 Op. Att'y Gen. No. 81-02.