SB0421

SENATE BILL 421

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Stuart Ingle

AN ACT

RELATING TO ZONING; LIMITING THE AUTHORITY OF COUNTIES AND MUNICIPALITIES; LIMITING THE AUTHORITY OF ZONING COMMISSIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 3-17-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-16-1, as amended) is amended to read:

"3-17-1. ORDINANCES--PURPOSES.--

A. The governing body of a municipality may adopt ordinances or resolutions not inconsistent with the laws of New Mexico for the purpose of:

[A.] (1) effecting or discharging the powers and duties conferred by law upon the municipality;

[B.] (2) providing for the safety, preserving the health, promoting the prosperity and improving the morals, order, comfort and convenience of the municipality and its inhabitants; and

[C.] (3) enforcing obedience to the ordinances by prosecution in the municipal court and metropolitan courts and upon conviction the imposition of:

[(1)] (a) except for those violations of ordinances described in [Paragraphs (2) and (3)] Subparagraphs (b) and (c) of this [subsection] paragraph, a fine of not more than five hundred dollars ($500) or imprisonment for not more than ninety days or both;

[(2)] (b) for a violation of an ordinance prohibiting driving a motor vehicle while under the influence of intoxicating liquor or drugs, a fine of not more than one thousand dollars ($1,000) or imprisonment for not more than three hundred sixty-four days or both; and

[(3)] (c) for violations of an industrial user wastewater pretreatment ordinance as required by the United States environmental protection agency, a fine of not more than one thousand dollars ($1,000) a day for each violation.

B. The authority of municipalities to adopt ordinances or resolutions that regulate agricultural operations, mining activities and oil and gas activities is expressly preempted. The provisions of state law, and of rules promulgated pursuant to state law, exclusively occupy the field of regulating agricultural operations, mining activities and oil and gas activities.

C. For the purposes of Subsection B of this section:

(1) "agricultural operation" means "agricultural operation" as defined in Subsection B of Section 47-9-5 NMSA 1978;

(2) "mining" means "mining" as defined in Subsection H of Section 69-36-3 NMSA 1978; and

(3) "oil and gas activities" means activities subject to regulation pursuant to the Oil and Gas Act, including the exploration, development, production and transportation of oil and gas, and any associated remediation and reclamation activities related thereto."

SECTION 2. Section 3-21-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-1, as amended by Laws 2007, Chapter 46, Section 3 and by Laws 2007, Chapter 270, Section 1) is amended to read:

"3-21-1. ZONING--AUTHORITY OF COUNTY OR MUNICIPALITY.--

A. For the purpose of promoting health, safety, morals or the general welfare, except as provided in Subsections H and I of this section, a county or municipality is a zoning authority and may regulate and restrict within its jurisdiction the:

(1) height, number of stories and size of buildings and other structures;

(2) percentage of a lot that may be occupied;

(3) size of yards, courts and other open space;

(4) density of population; and

(5) location and use of buildings, structures and land for trade, industry, residence or other purposes.

B. The county or municipal zoning authority may:

(1) divide the territory under its jurisdiction into districts of such number, shape, area and form as is necessary to carry out the purposes of Sections 3-21-1 through 3-21-14 NMSA 1978; and

(2) regulate or restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land in each district. All such regulations shall be uniform for each class or kind of buildings within each district, but regulation in one district may differ from regulation in another district.

C. All state-licensed or state-operated community residences for persons with a mental or developmental disability and serving ten or fewer persons may be considered a residential use of property for purposes of zoning and may be permitted use in all districts in which residential uses are permitted generally, including particularly residential zones for single-family dwellings.

D. A board of county commissioners of the county in which the greatest amount of the territory of the petitioning village, community, neighborhood or district lies may declare by ordinance that a village, community, neighborhood or district is a "traditional historic community" upon petition by twenty-five percent or more of the registered qualified electors of the territory within the village, community, neighborhood or district requesting the designation. The number of registered qualified electors shall be based on county records as of the date of the last general election.

E. Any village, community, neighborhood or district that is declared a traditional historic community shall be excluded from the extraterritorial zone and extraterritorial zoning authority of any municipality whose extraterritorial zoning authority extends to include all or a portion of the traditional historic community and shall be subject to the zoning jurisdiction of the county in which the greatest portion of the traditional historic community lies.

F. Zoning authorities, including zoning authorities of home rule municipalities, shall accommodate multigenerational housing by creating a mechanism to allow up to two kitchens within a single-family zoning district, such as conditional use permits.

G. For the purpose of this section, "multigenerational" means any number of persons related by blood, common ancestry, marriage, guardianship or adoption.

H. The authority of a county or municipality to adopt zoning ordinances to regulate agricultural operations, mining activities and oil and gas activities is expressly preempted. The provisions of state law, and of rules promulgated pursuant to state law, exclusively occupy the field of regulating agricultural operations, mining activities and oil and gas activities.

I. For the purposes of Subsection H of this section:

(1) "agricultural operation" means "agricultural operation" as defined in Subsection B of Section 47-9-5 NMSA 1978;

(2) "mining" means "mining" as defined in Subsection H of Section 69-36-3 NMSA 1978; and

SECTION 3. Section 3-21-21 NMSA 1978 (being Laws 1965, Chapter 206, Section 7, as amended) is amended to read:

"3-21-21. POWERS OF THE COMMISSION.--

A. Except as provided in Subsections C and D of this section, the commission shall have power within the district as part of the building and zoning ordinances, regulations and restrictions adopted by it in the manner otherwise provided by law to regulate and restrict:

(1) the height, number of stories and size of buildings and other structures;

(2) the percentage of a lot that may be occupied;

(3) the size of yards, courts and other open spaces;

(4) the density of populations;

(5) the location and use of buildings and structures; and

(6) the use of lands for trade, industry, residence or other purposes.

B. The commission shall adopt a comprehensive zoning plan or ordinance for the district that includes a master land use plan.

C. The authority of the commission to adopt ordinances or resolutions that regulate agricultural operations, mining activities and oil and gas activities is expressly preempted. The provisions of state law, and of rules promulgated pursuant to state law, exclusively occupy the field of regulating agricultural operations, mining activities and oil and gas activities.

D. For the purposes of Subsection C of this section:

(1) "agricultural operation" means "agricultural operation" as defined in Subsection B of Section 47-9-5 NMSA 1978;

(2) "mining" means "mining" as defined in Subsection H of Section 69-36-3 NMSA 1978; and

SECTION 4. Section 4-37-1 NMSA 1978 (being Laws 1975, Chapter 312, Section 1) is amended to read:

"4-37-1. COUNTIES--POWERS--ORDINANCES.--

A. All counties are granted the same powers that are granted municipalities except for those powers that are inconsistent with statutory or constitutional limitations placed on counties. Included in this grant of powers to the counties are those powers necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of any county or its inhabitants. The board of county commissioners may make and publish any ordinance to discharge these powers not inconsistent with statutory or constitutional limitations placed on counties.

B. The authority of counties to adopt ordinances or resolutions that regulate agricultural operations, mining activities and oil and gas activities is expressly preempted. The provisions of state law, and of rules promulgated pursuant to state law, exclusively occupy the field of regulating agricultural operations, mining activities and oil and gas activities.

C. For the purposes of Subsection B of this section:

(1) "agricultural operation" means "agricultural operation" as defined in Subsection B of Section 47-9-5 NMSA 1978;

(2) "mining" means "mining" as defined in Subsection H of Section 69-36-3 NMSA 1978; and

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