[Adopted 6-29-2005 by Ord. No. 05-01]
This article shall be known as the "Otero County Subdivision
Plan to implement the Sacramento Mountains Checkerspot Butterfly Conservation
Plan."
Authority for this article is found at NMSA 1978, § 4-37-1
et seq.; NMSA 1978, §§ 47-6-1 through 47-6-29; Otero
County Ordinance Nos. 92-01, 92-02, 92-03, 92-04 and 97-03,[1] as well as in the Otero County Comprehensive Plan.
The effective date of this article shall be 30 days after its
passage by the County Commission and recordation in the County Clerk's
office as provided for in NMSA 1978, § 4-37-9. This article
shall sunset and terminate on July 1, 2011, unless the Board of County
Commissioners affirmatively extends this article pursuant to law.
The purpose of this article is to protect the public health,
safety and general welfare of the citizens of Otero County through
the development of specific measures designed to avoid and/or minimize
impacts from the use and development of private lands around the community
of Cloudcroft, New Mexico, on the Sacramento Mountains checkerspot
butterfly.
As used in this article and to enable Otero County to discharge
its responsibility, the following definitions shall be used. The definitions
shall be interpreted in all cases to achieve the purpose of the Act:
The Board of County Commissioners of Otero County.
The Otero County Planning Commission.
The County of Otero.
The actual habitat for the Sacramento Mountains checkerspot
butterfly that is located within the high mountain meadows in the
mixed-conifer forest at approximate elevations between 2,450 meters
and 2,750 meters (8,000 feet and 9,000 feet) in the vicinity of the
Village of Cloudcroft, Otero County, New Mexico. (As more particularly
delineated on that certain United States Fish and Wildlife Service
map a copy of which is attached to this article as Exhibit A and is
incorporated herein by reference as if fully set forth.[1])
Unit of land capable of being described by location and boundaries
and not dedicated for public or common use.
Any individual, estate, trust, receiver, cooperative association,
club, corporation, company, firm, partnership, joint venture, syndicate,
governmental agency, nongovernmental organization or other entity.
County administrative employee responsible for coordinating
and processing subdivision applications and related planning matters;
may serve as Recording Secretary to the Otero County Planning Commission.
Map of a proposed subdivision, prepared by a licensed, registered
surveyor, showing the character and proposed layout of the subdivision
and the existing conditions in and around it. (See Otero County Ordinance
97-03.[2])
Euphydryas anicia cloudcrofti.
To divide a surface area of land into a subdivision.
Any person/agent who creates or who has created a subdivision,
individually or as part of a common promotional plan, or any person
engaged in the sale, lease, or other conveyance of subdivided land;
however, "subdivider" does not include any duly licensed real estate
broker or salesperson acting on another's account.
The division of a surface area of land, including land within
a previously approved subdivision, into two or more parcels for the
purpose of sale, lease, or other conveyance; or for building development,
whether immediate or future; however "subdivision" does not include:
Sale, lease, or other conveyance of any parcel that is 35 acres
or larger in size within any twelve-month period, provided that the
land has been used primarily and continuously for agricultural purposes,
in accordance with NMSA 1978, § 7-36-20, for the preceding
three years;
Sale or lease of apartments, offices, stores, or similar space
within a building;
Division of land within the boundaries of a municipality;
Division of land in which only gas, oil, mineral, or water rights
are severed from the surface ownership of the land;
Division of land created by court order where the order creates
no more than one parcel per party;
Division of land for grazing or farming activities, provided
the land continues to be used for grazing or farming activities;
Division of land resulting only in the alteration of parcel
boundaries where parcels are altered for the purpose of increasing
or reducing the size of contiguous parcels and where the number of
parcels is not increased;
Division of land to create burial plots in a cemetery;
Division of land to create a parcel that is sold or donated
as a gift to an immediate family member; however, this exception shall
be limited to allow the seller or donor to sell or give no more than
one parcel per tract of land per immediate family member;
Division of land created to provide security for mortgages,
liens, or deeds of trust, provided that the division of land is not
the result of a seller-financed transaction;
Sale, lease, or other conveyance of land that creates no parcel
smaller than 140 acres;
Division of land to create a parcel that is donated to any trust
or nonprofit corporation granted an exemption from federal income
tax, as described in Section 501(c)(3) of the United States Internal
Revenue Code of 1986, as amended; school, college, or other institution
with a defined curriculum and a student body and faculty which conducts
classes on a regular basis; or to any church or group organized for
the purpose of divine worship, religious teaching, or other specifically
religious activity; or
Sale, lease, or other conveyance of a single parcel from a tract
of land, except from a tract within a previously approved subdivision,
within any five-year period, provided that a second or subsequent
sale, lease, or other conveyance from the same tract of land within
five years of the first sale, lease, or other conveyance shall be
subject to the provisions of the New Mexico Subdivision Act[3]; provided, further, that a survey shall be filed with
the County Clerk indicating the five-year holding period for both
the original tract and the newly created tract.
The Planning Coordinator, as part of the preliminary plat review
process, shall determine whether a proposed subdivision is located
within the habitat of the Sacramento Mountains checkerspot butterfly
as that habitat is defined in this article.
A.
In the event the proposed subdivision is not located within the habitat
of the Sacramento Mountains checkerspot butterfly as defined in this
article, no further action is required with respect to the requirements
of this article.
B.
In the event the proposed subdivision is located within the habitat
of the Sacramento Mountains checkerspot butterfly as defined in this
article, the Planning Coordinator shall require the person submitting
the proposed subdivision to submit, in addition to those matters required
by NMSA 1978, §§ 47-6-1 through 47-6-29, and Otero
County Ordinance No. 97-03,[1] a survey conducted prior to commencement of any development/construction
activity within the proposed subdivision boundary that is completed.
The survey shall consist of the following: (See Exhibit B, "Guidance
for Conducting Surveys to Document the Presence of the Sacramento
Mountains Checkerspot Butterfly," attached hereto.[2])
In the event that the survey required by § 150-17 demonstrates the presence within the boundary of the proposed subdivision of either the Sacramento Mountains checkerspot butterfly or its food plant species as set forth in § 150-17C(2) and (3), the Planning Coordinator shall require the person submitting the proposed subdivision to provide the following:
A.
A plan to reduce the risk of wild fire within the proposed subdivision
by requiring either predevelopment thinning of trees and fuels management
or tree thinning and fuels management as a requirement for lot owners
within the subdivision;
B.
A plan that provides for all construction activities either by the
subdivision developer or the individual lot owners to be conducted
in a manner that will minimize modification and/or loss of Sacramento
Mountains checkerspot butterfly habitat, potential habitat, food plant
species, or food plant species habitat defined herein;
C.
A plan that provides for staging areas [i.e., areas where vehicles or equipment will be located during the construction of the subdivision or the construction of improvements on individual lots to be located within areas that do not contain any life stages of the Sacramento Mountains checkerspot butterfly, and/or any visible life stages of its food plant species as identified in § 150-17C(2)]. Staging areas should be clearly delineated (i.e., with survey stakes, flagging or taping) so that contractors and workmen are aware of the staging requirements.
D.
In the event that development or construction within the boundary of the proposed subdivision or on any particular lot cannot occur without disturbing either any life stage of the Sacramento Mountains checkerspot butterfly or its food plant species, a plan that provides for the salvage and relocation to other Sacramento Mountains checkerspot butterfly habitat of any life stages of the Sacramento Mountains checkerspot butterfly or any of the food plants referred to in § 150-17C(2) of this article to other locations within the boundary of the proposed subdivision that are suitable. This plan shall be submitted to the Otero County Planning Coordinator who shall provide a copy to the United States Fish and Wildlife Service. The United States Fish and Wildlife Service shall comment on the proposed plan in accordance with the requirements of NMSA 1978, §§ 47-6-10 and 47-6-11; and Article IV, § 200-14, of Chapter 200, Subdivision of Land, of the Otero County Code.
E.
A plan that provides for the revegetation or reseeding of suitable Sacramento Mountains checkerspot butterfly habitat that is impacted during construction within the proposed subdivision. This plan shall be submitted to and reviewed by the United States Fish and Wildlife Service. The United States Fish and Wildlife Service shall comment on the proposed plan in accordance with the requirements of NMSA 1978, §§ 47-6-10 and 47-6-11; and Article IV, § 200-14, of Chapter 200, Subdivision of Land. The comments shall address the effectiveness of the measures employed and assess, monitor and verify the results achieved.
F.
A plan that provides for the monitoring of the habitat areas for
the Sacramento Mountains checkerspot butterfly for the infestation
of noxious weeds [i.e., Russian knapweed (Acroptilon repens), musk
thistle (Carduus nutans), and teasel (Dipsacus sylvestris)]. If noxious
weed infestations are located, control and eradication treatments
shall be specified in the plan and implemented.
G.
A plan that provides, to the extent possible, for the concentration
of construction activities during that period of the calendar year
that the Sacramento Mountains checkerspot butterfly is not active
(i.e., October through March) in each year.
H.
A statement contained within the disclosure statement for the proposed
subdivision that informs the purchaser of the specific conservation
requirements to be implemented on individual lots within the subdivision.
In the event the survey required in § 150-17B of this article reveals that there is not present any life stage of the Sacramento Mountains checkerspot butterfly, nor is there present any food plant species, then the Planning Coordinator shall notify the person submitting the proposed subdivision of that lack of presence, in writing, and the proposed subdivision shall not be required to fulfill any of the requirements of § 150-18 of this article.
A.
Purpose and authority. Violations of the provisions of these regulations
shall be prosecuted in the manner provided by law to protect the health,
safety, and welfare of the public according to the County's authority
under the New Mexico Subdivision Act, NMSA 1978, § 47-6-1
et seq. The remedies provided in these regulations shall be cumulative
and not exclusive.
B.
Investigation of alleged violations. All written, signed complaints
alleging one or more violations of the provisions of the New Mexico
Subdivision Act or these regulations shall be referred to the Board
of County Commissioners for investigation. The Board of County Commissioners
shall direct an investigation of the complaint and take such action
as is warranted. The Board of County Commissioners shall inform the
complainant, in writing, of what actions have been taken or will be
taken in response to the complaint.
C.
Penalties and remedies. Violations of these regulations shall be
subject to the following penalties, remedies, and enforcement procedures:
(1)
Utility connections. Any water, sewer, electric, or gas utility that
connects service to individual parcels within a subdivision before
a final plat for the subdivision has been approved by the Board of
County Commissioners or before the landowner holds a valid building
permit may be fined a civil penalty of up to $500 by the Board of
County Commissioners. The Board of County Commissioners may also require
that any utility connected in violation of this section and of NMSA
1978, § 47-6-27.2 be disconnected.
(2)
Suspension of right of sale. The Board of County Commissioners may
suspend or revoke approval of a plat as to unsold, unleased, or otherwise
not conveyed portions of a subdivider's plat if the subdivider
does not meet the schedule of compliance approved by the Board of
County Commissioners.
(3)
Injunctive relief; mandamus. The Board of County Commissioners, the
District Attorney, or the Attorney General may apply to the District
Court for any one or more of the following remedies in connection
with violations of the New Mexico Subdivision Act and these regulations:
(a)
Injunctive relief to prohibit a subdivider from selling, leasing,
or otherwise conveying any interest in subdivided land until the subdivider
complies with the terms of the New Mexico Subdivision Act and these
regulations;
(b)
Injunctive relief to compel compliance by any person with the
provisions of the New Mexico Subdivision Act and these regulations;
(c)
Rescission and restitution for persons who have purchased, leased,
or otherwise acquired an interest in subdivided land that was divided
sold, leased, or otherwise conveyed in material violation of the New
Mexico Subdivision Act or these regulations; or
(d)
A civil penalty of up to $5,000 for each parcel created in knowing,
intentional, or willful violation of the New Mexico Subdivision Act
or these regulations.
D.
Bond not required. The Board of County Commissioners, the District
Attorney, and the Attorney General shall not be required to post bond
when seeking a temporary or permanent injunction or mandamus according
to the provisions of the New Mexico Subdivision Act.
E.
Criminal penalties.
(1)
NMSA 1978, § 47-6-27 provides that:
(a)
Any person who knowingly, intentionally, or willfully commits
a material violation of the New Mexico Subdivision Act is guilty of
a misdemeanor, punishable by a fine of not more than $10,000 per violation,
or by imprisonment for not more than one year, or both; and
(b)
Any person who is convicted of a second or subsequent knowing,
intentional, or willful violation of the New Mexico Subdivision Act
is guilty of a fourth degree felony, punishable by a fine of not more
than $25,000 per violation or by imprisonment for not more than 18
months, or both.
(2)
Any violation of the provisions of this article is punishable by
a fine not to exceed $300 or imprisonment for not more than 90 days,
or both, in accordance with NMSA 1978, § 4-37-3.
This article may be amended from time to time as conditions
warrant. Amendments shall be made by ordinance adopted by the Board
of County Commissioners in accordance with NMSA 1978, § 4-37-1
et seq., as amended, and in accordance with NMSA 1978, § 47-6-1
et seq., as amended. Additionally, the population numbers of the Sacramento
Mountains checkerspot butterfly shall be monitored and reported by
the United States Fish and Wildlife Service to the County Commission
on an annual basis to determine the effectiveness of the measures
contained in this article and the need or lack thereof of continued
regulation.
In the event a particular case presents circumstances requiring interpretation of this article, this article shall be interpreted broadly in order to accomplish its purpose which purpose is contained in § 150-15.
A.
Who may appeal.
(1)
Any person who is adversely affected by a decision of the Planning
Commission in approving or disapproving a subdivision plat may appeal
to the Board of County Commissioners within 15 days after the date
of the action of the Planning Commission. The Board of County Commissioners
shall hear the appeal and render a decision within 30 days after receiving
the notice of appeal.
(2)
Any person who is adversely affected by a decision of the Board of
County Commissioners in approving or disapproving a subdivision plat
may appeal to the District Court of the County in which the subdivision
is located within 30 days after the date of the action of the Board.
B.
Appeal process.
(1)
The appeal shall consist of a whole record review, and the reviewing
authority, whether it be the Board of County Commissioners or the
District Court, shall set aside the action of the lower tribunal only
if it is found to be:
(2)
Any party to the action in District Court shall have full appellate
rights in accordance with NMRA, Rule 1-074.
(3)
The appeal shall be perfected by filing a written notice of appeal
which sets forth the specific portion or portions of the decision
being appealed. A copy of the decision or order being appealed shall
be attached to the notice of appeal. The appeal shall be perfected
upon filing of the notice required by these regulations and payment
of the required docket fee. The notice of appeal shall otherwise conform
to the requirements set forth in NMRA, Rule 1-074.
