SENATE BILL 96

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Heather Berghmans and Linda M. Trujillo

AN ACT

RELATING TO CHILD CARE; PROVIDING THAT REGISTERED CHILD CARE HOMES, LICENSED FAMILY CHILD CARE HOMES AND LICENSED GROUP CHILD CARE HOMES BE TREATED AS RESIDENTIAL USES IN THE APPLICATION OF LOCAL ORDINANCES AND REGULATIONS; PROHIBITING LOCAL AUTHORITIES FROM IMPOSING ADDITIONAL REGULATIONS THAT DO NOT ALSO APPLY TO OTHER PRIVATE RESIDENCES WITHIN THE SAME ZONING DISTRICT; PROVIDING THAT LOCAL AUTHORITIES SHALL NOT ASSESS OR COLLECT CERTAIN FEES OR REGULATORY TAXES FROM REGISTERED CHILD CARE HOMES, LICENSED FAMILY CHILD CARE HOMES, LICENSED GROUP CHILD CARE HOMES OR LICENSED CHILD CARE CENTERS; PROVIDING THAT LICENSED CHILD CARE CENTERS BE PERMITTED BY RIGHT USE IN ZONES DESIGNATED AS COMMERCIAL; DEFINING "PERMITTED BY RIGHT" AND OTHER TERMS; LIMITING LOCAL AUTHORITIES' REGULATION OF OFF-STREET PARKING AS IT APPLIES TO CHILD CARE HOMES AND CHILD CARE CENTERS; CLARIFYING THE APPLICATION OF RULES PROMULGATED PURSUANT TO CHAPTER 59A, ARTICLE 52 NMSA 1978; PROVIDING THAT A HOMEOWNER ASSOCIATION SHALL NOT PROHIBIT THE OPERATION OF, OR ASSESS OR COLLECT A FEE OR TAX FOR THE OPERATION OF, A REGISTERED CHILD CARE HOME, LICENSED FAMILY CHILD CARE HOME OR LICENSED GROUP CHILD CARE HOME.

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

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

     "3-21-1. ZONING--AUTHORITY OF COUNTY [OR]--MUNICIPALITY-- EXCEPTIONS--REGISTERED CHILD CARE HOMES--LICENSED FAMILY CHILD CARE HOMES--LICENSED GROUP CHILD CARE HOMES--LICENSED CHILD CARE CENTERS.--

          A. For the purpose of promoting health, safety, morals or the general welfare, [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] building 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 qualified electors of the territory within the village, community, neighborhood or district requesting the designation. The number of 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.]

          G. Notwithstanding the provisions of Subsections A through F of this section, a child care home shall be considered a residential use of property for purposes of zoning and shall be permitted by right. In the application of local ordinances or regulations to a child care home, a local authority shall not:

                (1) impose additional regulations or requirements or require other discretionary local government review or approval, including conditional or special use permits, that do not also apply to other private residences within the same zoning district;

                (2) assess or collect a fee or tax for the privilege of operating a child care home; or

                (3) impose off-street parking regulations that exceed the off-street parking regulations for a single-family residence within the same zoning district.

          H. Notwithstanding the provisions of Subsections A through F of this section, a licensed child care center shall be permitted by right in any zoning district designated as commercial, mixed-use or multifamily residential. In the application of local ordinances or regulations to a licensed child care center, a local authority shall not:

                (1) assess or collect a fee or tax for the privilege of operating a licensed child care center;

                (2) impose a different or more restrictive building, safety or nuisance ordinance than the ordinances applied within the same zoning district; or

                (3) impose off-street parking restrictions or requirements; provided, however, that a zoning authority may require a licensed child care center to provide designated on-site stacking spaces or a lane for the safe and efficient loading and unloading of children; and provided further that:

                     (a) the number of stacking spaces required by the zoning authority shall not be more than one space per ten children of the center's proposed licensed capacity; and

                     (b) the licensed child care center shall be permitted to meet the staff parking needs through the use of available on-street parking spaces, shared parking agreements or off-site parking.

          I. As used in this section:

                (1) "child care home" includes a registered child care home, licensed family child care home or licensed group child care home, as defined in Section 9-29-2 NMSA 1978;

                (2) "local authority" means a county or municipality, a zoning authority or any board, instrumentality or other body of a county or municipality that has authority to enact ordinances or adopt regulations;

                (3) "multigenerational" means any number of persons related by blood, common ancestry, marriage, guardianship or adoption;

                (4) "permitted by right" means a use that is designated as an allowed use within a zoning district and does not require conditional use approval, special exceptions or permits, variances or any other discretionary approval by a local authority beyond compliance with the applicable standards of the zoning district; and

                (5) "zoning authority" means the planning, zoning or land use regulatory body of a county or municipality."

     SECTION 2. Section 3-21-11 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-9) is amended to read:

     "3-21-11. CONFLICTS BETWEEN ZONING REGULATIONS AND OTHER STATUTES AND ORDINANCES.--Except as provided in Subsections G and H of Section 3-21-1 NMSA 1978, if any other statute or regulation or other local ordinance, resolution or regulation adopted under authority of Sections [14-20-1 through 14-20-12 New Mexico Statutes Annotated, 1953 Compilation] 3-21-1 through 3-21-14 NMSA 1978 is applicable to the same premises, the provision shall govern which requires:

          A. the greater width or size of yards, courts or other open spaces;

          B. the lower height of building or a less number of stories;

          C. the greater percentage of lot or land to be left unoccupied; or

          D. [or imposes] other higher standards."

     SECTION 3. Section 47-16-18 NMSA 1978 (being Laws 2019,

Chapter 30, Section 10) is amended to read:

     "47-16-18. ENFORCEMENT OF COVENANTS--DISPUTE RESOLUTION--

REGISTERED CHILD CARE HOMES--LICENSED FAMILY CHILD CARE HOMES--

LICENSED GROUP CHILD CARE HOMES--CONFLICTS.--

          A. Each association and each lot owner and the

owner's tenants, guests and invitees shall comply with the

[Homeowners] Homeowner Association Act and the association's

community documents.

          B. Notwithstanding the provisions of Subsection A

of this section:

                (1) an association shall not, within the

association, prohibit the operation of a child care home or

assess or collect a fee or tax for the operation of a child

care home; and

                (2) in the event of a conflict between an

association's community documents and the early childhood

education and care department's registration or licensing

requirements for a child care home, the association shall

provide reasonable exceptions to the association's community

documents to allow any child care home within the association

to comply with the applicable child care home registration or

licensing requirements of the department.

          [B.] C. Unless otherwise provided for in the

community documents, the association may, after providing

written notice and an opportunity to dispute an alleged

violation other than failure to pay assessments:

                (1) levy reasonable fines for violations of or

failure to comply with any provision of the community

documents; and

                (2) suspend, for a reasonable period of time,

the right of a lot owner or the lot owner's tenant, guest or

invitee to use common areas and facilities of the association.

          [C.] D. Prior to imposition of a fine or

suspension, the board shall provide an opportunity to submit a

written statement or for a hearing before the board or a

committee appointed by the board by providing written notice to

the person sought to be fined or suspended fourteen days prior

to the hearing. Following the hearing or review of the written

statement, if the board or committee, by a majority vote, does

not approve a proposed fine or suspension, neither the fine nor

the suspension may be imposed. Notice and a hearing are not

required for violations that pose an imminent threat to public

health or safety.

          [D.] E. If a person against whom a violation has

been alleged fails to request a hearing or submit a written

statement as provided for in Subsection [C] D of this section,

the fine or suspension may be imposed, calculated from the date

of violation.

          [E.] F. A lot owner or the association may use a

process other than litigation used to prevent or resolve

disputes, including mediation, facilitation, regulatory

negotiation, settlement conferences, binding and nonbinding

arbitration, fact-finding, conciliation, early neutral

evaluation and policy dialogues, for complaints between the lot

owner and the association or if such services are required by

the community documents.

          G. As used in this section "child care home" means

a registered child care home, licensed family child care home

or licensed group child care home as defined in Section 9-29-2

NMSA 1978."

     SECTION 4. Section 59A-52-18 NMSA 1978 (being Laws 1984, Chapter 127, Section 964, as amended) is amended to read:

     "59A-52-18. RULES--STATEWIDE EFFECT--RESERVED POWER OF MUNICIPALITIES--TRAINING.--

          A. The rules promulgated pursuant to Chapter 59A, Article 52 NMSA 1978 shall have uniform force and effect throughout the state and no municipality or subdivision shall enact or enforce any ordinances or rules inconsistent with the statewide rules promulgated pursuant to that article. Nothing in that article shall [in any way] impair the power of any municipality to regulate the use of its land by zoning, building codes or restricted fire district rules, except as provided in Subsection B of this section.

          B. The rules promulgated pursuant to Chapter 59A, Article 52 NMSA 1978 shall:

                (1) not impose regulations on registered child care homes, licensed family child care homes or licensed group child care homes as defined in Section 9-29-2 NMSA 1978 that do not also apply to other private residences;

                (2) treat licensed child care centers as defined in Section 9-29-2 NMSA 1978 as a permitted by right use in all zones designated as commercial, mixed-use or multifamily residential; and

                (3) not impair the power of the early childhood education and care department to determine standards and regulate registered child care homes, licensed family child care homes, licensed group child care homes or licensed child care centers.

          [B.] C. The state fire marshal shall offer training to certified firefighters to assist with fire and fire safety inspections.

          D. As used in this section, "permitted by right" means a use that is designated as an allowed use within a zoning district and does not require conditional use approval, special exceptions or permits, variances or any other discretionary approval by the zoning authority beyond compliance with applicable standards of the zoning district."

     SECTION 5. [NEW MATERIAL] FEE OR TAX ON CHILD CARE HOME--PROHIBITED.--Notwithstanding any authority granted to a county or municipality by law, a county or municipality shall not assess or collect a business license, fee or regulatory tax for the operation of a registered child care home, licensed family child care home or licensed group child care home as defined in Section 9-29-2 NMSA 1978.

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2026.

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