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Provisional Government of Santa Teresa v. Dona Ana County Board of County Commissioners

Court of Appeals of New Mexico

August 22, 2018

PROVISIONAL GOVERNMENT OF SANTA TERESA and MARY GONZALEZ, Plaintiffs-Petitioners,
v.
DONA ANA COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant-Respondent, and CITY OF SUNLAND PARK, Intervenor.

          APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY Mary Rosner, District Judge

          Robles, Rael & Anaya, P.C, Robert M. White Randy M. Autio Lance D. Hough Albuquerque, NM for Petitioners

          Dona Ana County Attorney's Office Thomas R. Figart Nelson J. Goodin Las Cruces, NM for Respondent

          Holt Mynatt Martinez P.C. Bradley A. Springer Casey B. Fitch Las Cruces, NM for Intervenor

          OPINION

          HENRY M. BOHNHOFF, JUDGE.

         {¶1} In this appeal we are called upon to consider the counterintuitive proposition that, under New Mexico law, residents of territory who wish to incorporate the territory as a new municipality in order to avoid being annexed by an existing neighboring municipality must first petition the existing municipality to annex the territory. The Provisional Government of Santa Teresa (PGST), a New Mexico nonprofit corporation consisting of owners of land in the Santa Teresa area in Dona Ana County, New Mexico, seeks to incorporate the area as a municipality, separate from neighboring City of Sunland Park (Sunland Park). PGST contends that, because Sunland Park in 2014 informally expressed an intent to annex Santa Teresa, pursuant to NMSA 1978, . Section 3-2-3(B)(3) (1995), PGST could petition the Dona Ana Board of County Commissioners (DABOCC) to incorporate as a separate municipality. DABOCC denied the petition based on its determination that Section 3-2-3 (B)(3) required PGST first to submit a formal petition asking Sunland Park to annex the subject territory. PGST appealed that decision to the district court, which agreed with DABOCC. PGST now appeals to this Court. We reverse.

         MUNICIPAL ANNEXATION AND INCORPORATION STATUTES

         Annexation

         {¶2} NMSA1978, Sections 3-7-1 to-18 (1965, as amended through 2003), provides three general methods for an existing municipality to annex territory. First, under the arbitration method, an existing municipality can pass a resolution stating its desire to annex the territory and declaring that "the benefits of municipal government are or can be made available within a reasonable time to the territory." Section 3-7-5. An arbitration board is created, with three members representing the municipality, three members representing the territory to be annexed, and one independent member selected by the other six. Section 3-7-6; Section 3-7-9. The board meets, investigates, and decides whether the benefits can be made available and whether annexation should take place. Section 3-7-10. Second, under the commission method, either the existing municipality or a majority of the landowners in the territory to be annexed can submit a petition to the Municipal Boundary Commission (MBC). Section 3-7-11. If the MBC determines that the territory is contiguous and "may be provided with municipal services," it orders the annexation. Section 3-7-15(A)(2). Third, under the petition method, the owners of a majority of the land in the subject territory submit a petition to the municipality, and the municipality either consents to or rejects the petition. Section 3-7-17.

         {¶3} Section 3-7-17.1 establishes special requirements for annexation petitions submitted to existing municipalities with a population of less than 300, 000 persons and located in Class A counties, which are counties having an assessed valuation of over $75, 000, 000 and a population of 100, 000 or more persons. NMSA 1978, § 4-44-1(B) (2018). Dona Ana County is a Class A county. If the petition is signed by the owners of a majority of the number of acres in the area proposed for annexation, the petition must be submitted to the board of county commissioners of the county in which the municipality is located for comment by the board. Section 3-7-17.1 (B). If the petition is not signed by owners of a majority of the number of acres, under certain circumstances the extraterritorial land use commission, see NMSA 1978, Section 3-21-3.2 (2003), also must approve the petition. Section 3-7-17.1(C), (D).

         Incorporation

         {¶4} NMSA 1978, Sections 3-2-1 to -9 (1976, as amended through 2018), governs incorporation of new municipalities. Residents of the territory in question may petition the board of county commissioners in which the territory is located to incorporate. Section 3-2-1(A). The petition must be signed by at least 200 residents of the territory or the owners of at least 60 percent of the land within the territory. Id. The petition must include a "municipal services and revenue plan." Section 3 -2-1 (B). Section 3-2-5 provides that the board will determine if the statutory requirements are met; if they are met, the board conducts an election in which residents of the territory vote on whether to incorporate.

         {¶5} Section 3-2-3 places limits on incorporation within "urbanized territory." "Urbanized territory is that territory within the same county and within five miles of the boundary of any municipality having a population of five thousand or more persons and that territory within the same county and within three miles of a municipality having a population of less than five thousand persons[.]" Id. § 3-2- 3(A). The parties herein agree that the territory that PGST seeks to incorporate is urbanized territory.

         {¶6} Section 3-2-3(B) provides that:

No territory within an urbanized territory shall be incorporated as a municipality unless [in addition to satisfying the other requirements of Sections 3-2-1 to -9] the:
(1) municipality or municipalities causing the urbanized territory approve, by resolution, the incorporation of the territory as a municipality;
(2) residents of the territory proposed to be incorporated have filed with the municipality a valid petition to annex the territory proposed to be incorporated and the municipality fails, within one hundred twenty days after the filing of the annexation petition, to annex the territory proposed to be incorporated; or
(3) residents of the territory proposed to be annexed conclusively prove that the municipality is unable to provide municipal services within the territory proposed to be incorporated within the same period of time that the ...

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