Section 5-17-15 - Inclusion of territory; procedure. - New Mexico Statutes

5-17-15. Inclusion of territory; procedure.

A.     Additional territory may be added to an infrastructure development zone without an election pursuant to the following provisions:

(1)     the boundaries of an infrastructure development zone may be altered by the inclusion of additional real property by the fee owners of one hundred percent of any real property capable of being served with facilities of the infrastructure development zone filing with the board a petition in writing requesting that the property be included in the infrastructure development zone.  The petition shall include a legal description of the property, shall state that assent to the inclusion of the property in the infrastructure development zone is given by the fee owners thereof and shall be acknowledged by the fee owners in the same manner as required for conveyance of land;

(2)     the board shall hear the petition at a public meeting after publication of notice of the filing of the petition, the place, time and date of the meeting, the names and addresses of the petitioners and notice that all persons interested shall appear at the time and place and show cause in writing why the petition should not be granted.  There shall be no withdrawal from a petition after publication of notice by the board without the consent of the board.  The failure of any municipality or county that may be able to provide service to the real property described in the petition, or of any person in the existing infrastructure development zone to file a written objection, shall be taken as an assent to the inclusion of the area described in the notice;

(3)     the board shall grant or deny the petition, in whole or in part, with or without conditions, and the action of the board shall be final and conclusive, except as provided in Paragraph (4) of this subsection.  If a municipality or county has filed a written objection to the inclusion, the board shall not grant the petition as to any of the real property to which adequate service is, or will be, available from the municipality or county within a reasonable time and on a comparable basis.  If a petition is granted as to all or any of the real property, the board shall make an order to that effect and file the order with the county clerk of each county in which any part of the infrastructure development zone is located, and the property shall thereafter be included in the infrastructure development zone; and

(4)     a municipality or county that has filed a written objection to the inclusion and that can provide adequate service to the real property described in the petition within a reasonable time and on a comparable basis may bring an action in the district court for the county in which the land proposed to be included is located, commenced within thirty days after entry of the order of the board, to determine whether the action of the board granting the inclusion was arbitrary, capricious or unreasonable.

B.     In addition to the procedures specified in Subsection A of this section, additional territory may also be added to an infrastructure development zone pursuant to the following provisions:

(1)     either:

(a)     not less than twenty percent or two hundred, whichever number is smaller, of the taxpaying electors of an area that contains twenty-five thousand or more square feet of land may file a petition with the board in writing requesting that the area be included within the infrastructure development zone; except that no single tract of property constituting more than fifty percent of the total area to be included may be included in any infrastructure development zone without the consent of the owner thereof.  The petition shall set forth a legal and a general description of the area to be included and shall be acknowledged in the same manner as required for conveyance of land; or

(b)     the board may adopt a resolution proposing the inclusion of a specifically described area; but no single tract or parcel of property constituting more than fifty percent of the total area to be included may be included in an infrastructure development zone without the consent of the owner thereof;

(2)     nothing in this subsection shall permit the inclusion in an infrastructure development zone of any property if a petition that objects to the inclusion and that is signed by the owners of taxable real and personal property, which property equals more than fifty percent of the total assessed value of all taxable real and personal property to be included, is filed with the board no later than ten days prior to the public meeting held under Paragraph (3) of this subsection;

(3)     upon the filing of a petition or the adoption of a resolution pursuant to Paragraph (1) of this subsection, the board shall hear the petition or resolution at a public meeting after publication of notice of the filing of the petition or adoption of the resolution, the place, time and date of the meeting, the names and addresses of the petitioners, if applicable, the description of the area proposed for inclusion and notice that all persons interested and any municipality or county that may be able to provide service to the real property therein described shall appear at the time and place stated and show cause in writing why the petition should not be granted or the resolution not finally adopted.  There shall be no withdrawal from a petition after publication of notice by the board without the consent of the board.  The failure of any person in the existing infrastructure development zone to file a written objection shall be taken as an assent on that person's part to the inclusion of the area described in the notice;

(4)     after a hearing pursuant to Paragraph (3) of this subsection, the board shall grant or deny the petition or finally adopt the resolution, in whole or in part, with or without conditions, and, subject to an election conducted pursuant to Paragraph (6) of this subsection, the action of the board shall be final and conclusive, except as provided in Paragraph (5) of this subsection.  If a municipality or county has filed a written objection to the inclusion, the board shall not grant the petition or finally adopt the resolution as to any of the real property to which adequate service is, or will be, available from the municipality or county within a reasonable time and on a comparable basis;

(5)     a municipality or county that has filed a written objection to the inclusion and that can provide adequate service to the real property described in the petition within a reasonable time and on a comparable basis may bring an action in the district court for the county in which the area proposed to be included is located, commenced within thirty days after entry of the order of the board, to determine whether the action of the board granting the inclusion was arbitrary, capricious or unreasonable;

(6)     upon final action by a board pursuant to Paragraph (4) of this subsection or affirmation by a district court pursuant to Paragraph (5) of this subsection, an election shall be held within the area sought to be included.  The secretary shall give published notice of the time and place of the election and of the question to be submitted, together with a summary of any conditions attached to the proposed inclusion.  The ballot shall be prepared by the board and shall substantially contain the following words:

"Shall the following described area become a part of the .................. infrastructure development zone upon the following conditions, if any?

(Insert description of area) 

(Insert accurate summary of conditions)

For inclusion ........

Against inclusion ........";

(7)     if the majority of the votes cast at the election are in favor of inclusion, the election official shall enter an order including any conditions so prescribed and making the area a part of the infrastructure development zone.  The validity of the inclusion shall not be questioned directly or indirectly in any suit, action or proceeding; and

(8)     nothing in this subsection shall permit the inclusion in an infrastructure development zone of any property that could not be included in the infrastructure development zone at the time of its organization without the written consent of the owners thereof, unless the owners of the property consent in writing to the inclusion of the property in the infrastructure development zone in a petition filed pursuant to this section or unless the property is no longer excludable pursuant to the provisions of Paragraph (4) of this subsection.

C.     Nothing in this section shall be construed to permit the inclusion in an infrastructure development zone of any real property located in a municipality or a county outside a municipality unless the governing body of the municipality or county has adopted a resolution authorizing the inclusion or waives its right to require the resolution in its sole discretion.  Any resolution of approval so adopted or waiver so given shall be appended to any petition filed pursuant to Paragraph (1) of Subsection A of this section or Subparagraph (a) of Paragraph (1) of Subsection B of this section.

D.     Not more than thirty days nor less than twenty days prior to a meeting of the board held pursuant to Paragraph (2) of Subsection A of this section or Paragraph (3) of Subsection B of this section, the secretary shall send notification by certified mail of the meeting to the property owners within the area proposed to be included within the infrastructure development zone as listed on the records of the county clerk on the date requested.  The notification shall indicate that it is a notice of a meeting for consideration of the inclusion of real property within an infrastructure development zone and shall indicate the date, time, location and purpose of the meeting, a reference to the services of the infrastructure development zone as described in the service plan, the maximum mill levy, if any, or stating that there is no maximum that may be imposed if the proposed area is included within the infrastructure development zone, and procedures for the filing of a petition for exclusion pursuant to Paragraph (4) of Subsection B of this section.  Except as provided in this subsection, the mailing of the notification by certified mail to all addresses within the area proposed to be included within the infrastructure development zone shall constitute a good-faith effort to comply with this section, and failure to notify all electors by certified mail shall not provide grounds for a challenge to the meeting being held.