Section 3-46-43 - Ordinances relating to repair, closing and demolition of dwellings unfit for human habitation; complaint; service of complaint; appeal. - New Mexico Statutes

3-46-43. Ordinances relating to repair, closing and demolition of dwellings unfit for human habitation; complaint; service of complaint; appeal.

A.     Whenever a municipality finds that there exist dwellings that are unfit for human habitation due to dilapidation; defects increasing the hazards of fire, accidents or other calamities; lack of ventilation, light or sanitary facilities; or other conditions, including those set forth in Subsection C of this section, rendering the dwellings unsafe and unsanitary or dangerous or detrimental to the health, safety or morals or otherwise inimical to the welfare of the residents of the municipality, power is conferred upon the municipality to require or cause the repair, closing or demolition or removal of the dwellings in the manner provided in this section.  "Dwelling" means a building or structure or part thereof used and occupied for human habitation or intended to be so used and includes any appurtenances usually enjoyed in the dwelling. 

B.     Upon the adoption of an ordinance finding that dwelling conditions of the character described in Subsection A of this section exist, the governing body of the municipality may adopt ordinances relating to the dwellings within the municipality that are unfit for human habitation.  The ordinances shall include the following provisions: 

(1)     a public officer shall be designated or appointed to exercise the powers prescribed by the ordinances; 

(2)     whenever it appears to the public officer, on the officer's own motion, that a dwelling is unfit for human habitation, the officer shall, if the officer's preliminary investigation discloses a basis for the charges, issue and cause to be served on the owner, every mortgagee of record and all parties in interest in the dwelling, including persons in possession, a complaint stating the charges in that respect.  The complaint shall contain a notice that a hearing will be held before the public officer or the officer's designated agent at a place fixed in the complaint not less than ten days nor more than thirty days after the serving of the complaint; that the owner, mortgagee and parties in interest shall be given the right to file an answer to the complaint and to appear in person or otherwise and give testimony at the place and the time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the public officer; 

(3)     if after the notice and hearing the public officer determines that the dwelling under consideration is unfit for human habitation, the officer shall state in writing findings of fact in support of that determination and shall issue and cause to be served upon the owner an order in writing that advises the owner of the owner's rights under Subsection E of this section and that: 

(a)     if the repair, alteration or improvement of the dwelling can be made at a reasonable cost in relation to the value of the dwelling, the ordinance of the municipality shall fix a certain percentage of the cost as being reasonable for that purpose and require the owner, within the time specified in the order, to repair, alter or improve the dwelling to render it fit for human habitation or to vacate and close the dwelling as a human habitation; or 

(b)     if the repair, alteration or improvement of the dwelling cannot be made at a reasonable cost in relation to the value of the dwelling, the ordinance of the municipality shall fix a certain percentage of the cost as being reasonable for the purpose, and require the owner, within the time specified in the order, to remove or demolish the dwelling; 

(4)     if the owner fails to comply with an order to repair, alter or improve or to vacate and close the dwelling, the public officer may cause the dwelling to be repaired, altered or improved or to be vacated and closed; 

(5)     if the owner fails to comply with an order to remove or demolish the dwelling, the public officer may cause the dwelling to be removed or demolished; and 

(6)     the amount of the cost of the repairs, alterations or improvements or the vacating and closing or the removal or demolition by the public officer shall be a lien against the real property upon which the cost was incurred.  If the dwelling is removed or demolished by the public officer, the officer shall sell the materials of the dwelling and shall credit the proceeds of the sale against the cost of the removal or demolition.  Any balance remaining shall be deposited in the district court by the public officer and shall be secured in the manner as may be directed by the court and shall be disbursed by the court to the persons found to be entitled to the balance by final order or decree of the court. 

C.     An ordinance adopted by a municipality pursuant to this section shall provide that the public officer may determine a dwelling is unfit for human habitation if the officer finds that conditions exist in the dwelling that are dangerous or injurious to the health, safety or morals of the occupants of the dwelling, the occupants of neighboring dwellings or other residents of the municipality or that have a blighting influence on properties in the area.  The conditions may include the following without limitations:  defects increasing the hazards of fire, accident or other calamities; lack of adequate ventilation, light or sanitary facilities; dilapidation; disrepair; structural defects; uncleanliness; overcrowding; inadequate ingress and egress; inadequate drainage; or any violation of health, fire, building or zoning regulations or any other laws or regulations relating to the use of land and the use and occupancy of buildings and improvements.  The ordinance may provide additional standards to guide the public officer or the officer's agents or employees in determining the fitness of a dwelling for human habitation. 

D.     Complaints or orders issued by a public officer pursuant to an ordinance adopted under the provisions of this section shall be served upon persons either personally or by registered mail.  If the whereabouts of the persons are unknown and cannot be ascertained by the public officer in the exercise of reasonable diligence and the public officer makes an affidavit to that effect, the serving of the complaint or order upon the persons may be made by publishing the complaint or order once each week for two consecutive weeks in a newspaper printed and published in the municipality or, in the absence of a newspaper, in one printed and published in the county and circulating in the municipality in which the dwellings are located.  A copy of the complaint or order shall be posted in a conspicuous place on the premises affected by the complaint or order.  A copy of the complaint or order shall also be filed with the clerk of the county in which the dwelling is located.  Filing of the complaint or order shall have the same force and effect as other lis pendens notices provided by law. 

E.     A person affected by an order issued by the public officer may file an appeal pursuant to the provisions of Section 39-3-1.1 NMSA 1978. 

F.     An ordinance adopted by the governing body of the municipality may authorize the public officer to exercise  powers as may be necessary or convenient to carry out and effectuate the purposes and provisions of this section, including the following powers: 

(1)     to investigate the dwelling conditions in the municipality in order to determine which dwellings are unfit for human habitation; 

(2)     to administer oaths and affirmations, examine witnesses and receive evidence; 

(3)     to enter upon premises for the purpose of making examinations, provided that the entries shall be made in a manner as to cause the least possible inconvenience to the persons in possession, and to obtain an order for this purpose from a court of competent jurisdiction in the event entry is denied or resisted; 

(4)     to appoint and fix the duties of any officers, agents and employees as the officer deems necessary to carry out the purposes of the ordinances; and 

(5)     to delegate any functions and powers under the ordinance to officers, agents and employees that the public officer may designate. 

G.     The governing body of a municipality adopting an ordinance under this section shall, as soon as possible thereafter, prepare an estimate of the annual expenses or costs to provide the equipment, personnel and supplies necessary for periodic examinations and investigations of the dwellings in the municipality for the purpose of determining the fitness of the dwellings for human habitation and for the enforcement and administration of its ordinance or ordinances adopted under this section. 

H.     Nothing in this section shall be construed to abrogate or impair the powers of the courts or of a department of a municipality to enforce any provisions of its charter or its ordinances or regulations or to prevent or punish violations thereof.  The powers conferred by this section shall be in addition and supplemental to the powers conferred by any other law.

I.     Nothing in this section shall be construed to impair or limit in any way the power of the municipality to define and declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.