This chapter may be cited as the "property nuisance abatement chapter."
(Ordinance 2023-04 adopted 7/25/2023)
(A)
When the failure of an individual in our community to take care of their property interferes with the use and enjoyment of neighboring property owners, the county has the power and the ability to remedy the problems caused by nuisance or problem properties.
(B)
It is the policy of the county to encourage properties be maintained in such a manner so as not to become nuisance properties that interfere with the enjoyment of owners and occupants of neighboring properties. It is further the policy of the county to attempt to secure the cooperation of the owner of a nuisance property to remedy the problems caused or created by such property before resorting to legal remedies whenever possible.
(C)
This chapter provides a framework and the necessary means to enforce the county's statutory authority to abate, correct, remove and remedy nuisances in the county to protect the public health, welfare and safety, and to recover the costs of abatement, removal and remediation from those responsible for creating or failing to correct and abate the conditions which constitute such nuisances.
(Ordinance 2023-04 adopted 7/25/2023)
(A)
All parcels of real property shall remain free of conditions constituting a nuisance as defined in this chapter, state statute, county ordinances and common law.
(B) Abandoned or inoperable motor vehicle.(1) (2) Common law. Criminal activity. Excessive vegetation or invasive or nuisance plants and weeds. General nuisances. Groundwater pollution. Holes and openings. Insect and rodent infestation or harborage. Interference with a watercourse or wetland. Mechanical equipment, trailers, construction equipment, mobile homes, and recreational vehicles. Open storage. Private water supply; noncompliant. Toxic and hazardous materials. Unclean fill material.
Unless the conditions of a property appearing to be a nuisance occur as part of a permitted use of a property under the Sustainable Land Development Code (SLDC), and only to the extent that such use is in compliance with the requirements of all county ordinances and the development permit for the property, each of the following conditions existing on any parcel of real property within the county shall be deemed and declared to constitute a public nuisance and is prohibited:
Abandoned, inoperable or extensively damaged motor vehicles which are located within the county on any private lot, tract, or parcel of land, or portion thereof, occupied or unoccupied, improved or unimproved, which are visible from any public place, including but not limited to, public rights-of-way, parks, public buildings and their grounds, and private business or commercial property open to the public in the normal course of business, unless the vehicles are located on the premises of a business where an activity is within the contemplated purposes of a licensed business with the appropriate zoning or permitted use, such as a licensed salvage yard or vehicle demolisher. Vehicles that are at least thirty-five (35) years old and are being actively restored for their historic value are not included in the definition of abandoned or inoperable motor vehicles. Non-antique vehicles that are either inoperable or extensively damaged and are being actively repaired with repairs completed within 180 days are not included in the definition of inoperable vehicles.
A motor vehicle will be considered "abandoned" if it has been determined by a New Mexico law enforcement agency: (a) to have been left unattended on either public or private property for at least thirty (30) days; (b) not to have been reported stolen; (c) not to have been claimed by any person asserting ownership; and (d) not to have been shown by normal record-checking procedures to be owned by any person.
A motor vehicle will be considered "inoperable" if it cannot be safely operated or if it is incapable of being moved under its own power or if it may not be legally operated due to lack of any legal requirement, including, but not limited to, a current license tag.
Any nuisance as defined by common law.
Any parcel of real property, commercial or residential, any personal property, or any vehicle on or in which repeated violations of the state criminal statutes, federal criminal statutes, or local ordinances has occurred, or that is the subject of or that has been involved with repeated calls for service to any law enforcement agency(ies) for violations of the criminal statutes, including, but not limited to, a repeated pattern of calls for service and complaints of vagrants, suspicious persons, suspicious cars, general calls for welfare checks, disorderly conduct, trafficking of controlled substances, human trafficking, domestic violence, domestic altercations, domestic disputes, loud parties, loud music, neighborhood complaints, noise ordinance violations, illegal gambling, cruelty to animals, and public drunkenness.
Excessive vegetation or invasive or nuisance plants or weeds that threaten public health or safety, such as plants or weeds that obstruct the view or access of any public right-of way. Such nuisances may be any natural vegetation, or any noxious plants or weeds recognized as such by the United States or New Mexico Department of Agriculture.
The accumulation, collection, dumping, or stockpiling of any garbage, trash, litter, debris, rubbish, tires, appliances, junk, or other material.
Addition of any chemical and/or biological substance that would cause groundwater to be unpalatable or unfit for human consumption. These substances include but are not limited to the chemical and/or biological substances listed in state law.
Any hole or opening caused by an improperly abandoned cistern, septic tank, dug well, etc.; or any improperly abandoned, barricaded or covered up excavation.
The infestation or harborage of insects or rodents constitutes a nuisance. Infestation occurs when the presence of any insects or rodents is of such kind or in such numbers as to create a potential health hazard. Harborage is any condition which provides shelter or protection for insects and rodent which favors their multiplication and continued existence in, under, or outside of a building or structure, such as the accumulation of water, refuse, animal wastes, garbage, or trash that provides shelter or protection for insects or rodents.
The placement or depositing of any materials in a watercourse or wetland, including but is not limited to, dirt, gravel, rocks, construction material, garbage, refuse, wood, tires or concrete, except to the extent that such placement or depositing has been duly permitted by a federal, state, or local government with authority.
The presence of abandoned or inoperable mechanical equipment, trailers, construction equipment, mobile homes or other commercial or recreational vehicles or equipment; or the parking, keeping or storing of any inoperative or unlicensed trailers, recreational vehicle or motor home which is in a state of disassembly, disrepair, stripping or dismantling.
The presence of garbage, trash, litter, debris, rubbish or junk which has fallen or spilled out of storage or collection containers meant for the same, or the failure to visually screen a collection area for outdoor garbage or trash storage by a solid wall or fencing to the extent required by county ordinance.
Any private well that is constructed, abandoned or used and/or any pump installed in non-compliance with state law.
Any chemical and/or biological material that is stored, used, or disposed of in such quantity or manner that is, or has the potential to create, a health hazard.
The dumping or stockpiling of unclean fill material is prohibited. "Unclean fill" material includes contaminated soil, rock, and concrete, wood, plastic, insulation, metal, wire, broken/damaged piping, and general trash. Unclean fill material creates a public nuisance and potential safety hazard, and can adversely impact the environment. Clean fill material may be dumped or stockpiled as part of an approved use under the SLDC or as part of a permitted project. Clean fill includes broken concrete, brick, rock, stone, glass, reclaimed asphalt pavement, or soil that is uncontaminated, meaning the fill has not been mixed with any waste other than the foregoing and has not been subjected to any known spill or release of chemical contaminants, including petroleum product, nor treated to remediate such contamination; reinforcement materials which are an integral part, such as rebar, may be included as clean fill; clean fill must be free of other solid waste, to include land clearing debris, construction and demolition debris, municipal solid waste, radioactive waste, hazardous waste or special waste.
(Ordinance 2023-04 adopted 7/25/2023)
(A)
Any building or portion thereof, including any dwelling unit, guest room or suite of rooms, and the real property on which the same is located, in which there exists any of the following listed conditions to an extent and degree that endangers the life, limb, health, property, safety or welfare of the public or the occupants thereof, shall be deemed and declared to constitute a nuisance under this chapter:
(1)
Lack of, or not properly operative water closet, lavatory, bathtub or shower in a dwelling unit.
(2)
Lack of, or not properly operative water closets, lavatories and bathtubs or showers in a motel.
(3)
Lack of, or not properly operative kitchen sink.
(4)
Lack of hot and cold running water to plumbing fixtures in a motel.
(5)
Lack of hot and cold running water to plumbing fixtures in a dwelling unit.
(6)
Lack of adequate heating facilities.
(7)
Lack of, or improper operation of required ventilating equipment.
(8)
Dampness of habitable rooms because of faulty weather protection.
(9)
General dilapidation or inadequate maintenance.
(10)
Lack of connection to a required, adequate and functioning sewage disposal system.
(11)
Structural hazards shall include, but are not limited, to the following:
(a)
Deteriorated or inadequate foundations.
(b)
Defective or deteriorated flooring or floor supports.
(c)
Flooring or floor supports of insufficient size to carry imposed loads with safety.
(d)
Members of walls, partitions or other vertical supports that split, lean, list or buckle.
(e)
Members of walls, partitions or other vertical supports that are of insufficient size to carry imposed loads with safety.
(f)
Members of ceilings, roofs, ceiling and roof supports or other horizontal members which sag, split or buckle.
(g)
Members of ceilings, roofs, ceiling and roof supports, or other horizontal members that are of insufficient size to carry imposed loads with safety.
(h)
Fireplaces or chimneys which list, bulge or settle.
(i)
Fireplaces or chimneys which are of insufficient size or strength to carry imposed loads with safety.
(j)
Inside or outside stairs, porches, and appurtenance thereto which are incapable of supporting the load that normal use may cause to be placed thereon and unsafe to use.
(k)
Interior walls and ceilings with holes or large cracks, loose plaster and other structural materials, the collapse of which might constitute an accident hazard.
(B)
In addition to the conditions deemed to constitute a nuisance in other sections of this chapter, any building, including a structure, shall be deemed and declared to constitute a nuisance under this chapter if any of the following conditions exist:
(1)
The building has broken windows or doors constituting hazardous conditions and inviting trespassers or malicious mischief;
(2)
The building is boarded up, partially destroyed, not properly secured or partially constructed or incomplete after a building permit authorizing its construction has expired;
(3)
The building is not maintained to the extent that it is dilapidated or decrepit so as to cause substantial diminution in the enjoyment and use of adjacent or nearby properties;
(4)
The building is uninhabited and in an unsecured state, so as to invite trespassers, criminals or others unauthorized to enter for the purpose of committing a nuisance or unlawful act, or the building constitutes an attractive nuisance for children; or
(5)
The building has been vacant for a period of at least six months, and utility connections which enable the provision of electricity, heat, water and wastewater removal have been disconnected for at least six months, and one or more of the conditions listed in subsections (A) through (B) of this section also exist.
(Ordinance 2023-04 adopted 7/25/2023)
(A)
The board of county commissioners shall designate the employees of the county authorized enforce this chapter through the issuance of citations and otherwise, each of which are referred to herein collectively and individually as a code enforcement officer or CEO. The designated CEO, in conjunction with the county attorney's office, shall administer this chapter. In addition, the county may contract for services necessary to determine whether a property should be deemed a nuisance as defined herein.
(B)
Enforcement authority shall be exercised in a manner of cooperation and collaboration with all county citizens to achieve compliance voluntarily if possible. The CEO shall accept and process complaints of nuisance violations under this chapter and shall investigate such allegations in cooperation with all county offices with enforcement authority.
(C)
Each county health and safety ordinance may be enforced through the provisions of such ordinance or through this chapter, in the discretion of the CEO and the county manager. To the extent that appropriate resources are available, the CEO shall coordinate with appropriate county staff and investigate complaints received from citizens of nuisances within the county and may conduct periodic inspections of buildings, structures, and the use of land to confirm compliance with this chapter.
(D)
Privacy rights.
Nothing in this chapter shall affect the rights of citizens to privacy in and on their property. Entry on property, except in emergency situations, shall be preceded with consent of the owner or an administrative or other warrant, or as otherwise regulated by a licensing or permitting ordinance.
(E)
Voluntary compliance in nonemergency situations.
In cases not involving imminent threat to the public health, safety and welfare, the county shall first attempt to secure the cooperation of the individuals who own or occupy the problem property to correct the conditions causing the nuisance within a reasonable period of time as determined by the county. Compliance is the goal, before having to resort to enforcement procedures. Nuisances that are an imminent threat to public health, safety and welfare may be dealt with irrespective of whether the cooperation of the owner or occupant of the nuisance property can first be secured.
(Ordinance 2023-04 adopted 7/25/2023)
If voluntary compliance is not achieved within a reasonable period of time, or there is an imminent threat to the public health, safety and welfare, the nuisance may be remedied with any of the legal methods allowed under state law and county ordinance. The CEO shall have the discretion to address the nuisance in the legal manner best suited to the circumstances of the nuisance.
(1)
Complaints of nuisance violations under this chapter shall be made on forms prescribed by the county manager or designee; provided, however, that no complaint is necessary for the county to investigate a nuisance observed by a CEO or as to which the CEO possesses credible evidence. When a nuisance is suspected, the CEO shall investigate, and if the apparent nuisance is substantiated, determine whether abatement can be accomplished over time or if there is an imminent threat to the public health, safety and welfare requiring immediate action.
(2)
The sheriff's office may be asked to assist with the investigation, remedying, or prosecution of any nuisance, and to accompany the CEO to safely enter private or public property to secure the property in a manner to protect the public.
(3)
Imminent threats to public health, safety, and welfare. When the CEO determines that a nuisance presents an imminent threat to public health, safety and welfare, cooperation of the owner may be sought through a notice but is not necessary to address the nuisance. The CEO shall take all steps necessary to protect the public health, safety and welfare within county legal authority as described in section 134.07 below.
(4)
Nuisance conditions that present no imminent threat to public health, safety and welfare. The county shall try to address nuisances that are not an imminent threat to public health, safety and welfare with the cooperation of the owner or occupant of the nuisance property. All enforcement mechanisms described herein may be utilized if the owner or occupant fails to remedy the nuisance within a reasonable period of time after notice as described in section 134.08 below.
(Ordinance 2023-04 adopted 7/25/2023)
The county has the authority to abate nuisances presenting an imminent threat to the public health, safety and welfare under the following procedures.
(1)
The CEO shall first determine that a nuisance exists and second that public health and safety require the removal of the nuisance immediately pursuant to the county's power to protect the health and safety of its citizens. These findings shall be maintained in writing in the case file.
(2)
The CEO, in consultation with the county attorney, shall determine if an administrative warrant or judicial order authorizing the abatement must first be obtained based on the individualized facts and circumstances.
(3)
Notice of the nuisance, the immediate necessity of the abatement of the nuisance, and the right to a hearing under section 134.10 below shall be posted on the property whenever practicable. If the notice cannot be posted because of the nature of the imminent threat, it shall be posted and hand delivered or mailed by certified mail, return receipt requested to the property owner occupant the next business day.
(4)
After the emergency abatement of the nuisance, the CEO shall assess the costs of abatement after notice to the owner or occupant and a hearing before the nuisance hearing officer as provided in section 134.10 below. If further abatement is needed, the CEO may proceed to begin the clean and lien proceedings before the nuisance hearing officer pursuant to sections 134.10 and 134.11 below.
(Ordinance 2023-04 adopted 7/25/2023)
When the nuisance does not present an imminent threat to the public health, safety and welfare, the following process may be utilized.
(2)
The written notice to correct shall be sent by hand delivery or certified mail, return receipt requested to the owner and, if different than the owner, occupant of the property, and shall be posted in a conspicuous location on the property. The notice shall contain:
(a)
The location of the premises, by street address or otherwise, where the nuisance was observed;
(b)
Each violation and the particular ordinance, rule, or regulation violated;
(c)
Direction that the owner or occupant abate the nuisance within a reasonable time and that the owner or occupant provide evidence of the abatement with ten (10) calendar days from the date of the notice;
(d)
Statement that the owner or occupant may dispute the notice by timely submitting a written request for a hearing, which must be actually received by the applicable deadline;
(e)
Statement that failure to request a hearing in a timely manner will result in a conclusive presumption that a nuisance exists pursuant to this chapter;
(f)
Statement that the county shall collect costs of nuisance abatement from the owner or occupant, and may order a lien upon the real property of the owner or occupant.
(3)
In the event the owner of the property cannot be located, such notice may be served by posting a copy of the written notice upon the property and publication according to the service by publication rule (Rule 1-004(K)) of the New Mexico Rules Annotated.
(4)
The CEO may attempt to resolve the nuisance conditions through the voluntary compliance of the owner of the property by executing an action plan with the owner as provided under section 134.05 of this chapter. If the nature of the violation is such that it cannot be cured within a reasonable period, an action plan may be entered into between the owner or occupant and the CEO, provided the owner or occupant responds within the required time period. The CEO shall periodically follow up on any action plan until the violations have been corrected. Provided that the owner or occupant is actively pursuing the correction of the violation, the CEO, with the approval of the county manager, may extend the action plan.
(Ordinance 2023-04 adopted 7/25/2023)
(A)
All of the remedies provided by law are available to solve and abate nuisances. The CEO, in consultation with the county attorney, shall choose the most economically and legally appropriate process.
(B)
When compliance cannot be obtained voluntarily, the CEO's options include:
(Ordinance 2023-04 adopted 7/25/2023)
(A)
When the nuisance presents no imminent threat of harm to the public, and an owner or occupant has failed to comply with a notice of violation letter, the CEO may choose to solve the nuisance through the administrative enforcement process established herein.
(B)
The board of county commissioners shall from time-to-time appoint one or more nuisance hearing officer(s) to discharge the duties set forth in this chapter. The board of county commissioners hereby delegates to the nuisance hearing officer authority to hold evidentiary hearings. The nuisance hearing officer shall make recommendations to the board of county commissioners in the administrative enforcement process as provided herein.
(C)
Administrative enforcement shall follow the following process.
(1)
The CEO shall issue a written order to correct and remediate a nuisance within a reasonable period of time based upon the violation.
(2)
If the owner or occupant fails to comply with the order, the CEO shall request a hearing before the nuisance hearing officer and give legally sufficient notice of the hearing to the owner and or the occupant. The nuisance hearing officer shall promulgate rules of procedure for their hearings, which shall be approved by board of county commissioners.
(3)
The nuisance hearing officer shall hear evidence from the CEO describing the condition of the property and establishing the existence of a nuisance. The owner or occupant may present evidence refuting the existence of a nuisance and argue any legal issue that is a defense to this chapter.
(4)
Within five (5) business days, the hearing officer shall issue a decision finding the existence of a nuisance and attaching a draft resolution for a clean and lien of the property as provided in section 134.11 below or finding that the conditions do not constitute a nuisance. Any decision of the nuisance hearing officer shall be supported by findings of fact and conclusions of law.
(5)
If a nuisance is proven, the nuisance hearing officer shall prepare a resolution for consideration and potential action by the board of county commissioners ordering the cleaning of the property, the placement of a lien, and an allowance for the foreclosure of the lien and sale of the property.
(Ordinance 2023-04 adopted 7/25/2023)
(A)
Under NMSA 1978, §§ 3-18-5 and 4-37-1, the county enacts a clean and lien enforcement process. Based upon a proposed resolution from the hearing officer, the board of county commissioners may find that a building, structure or property is a nuisance. The board of county commissioners shall either vote in favor of the proposed resolution, deny the proposed resolution, or remand the matter to the hearing officer if further hearing is required.
(B)
The action by the Board shall be on the record from the hearing officer with only argument from any interested party. In addition to finding that the property is a public nuisance, the Board must find that the nuisance poses a threat to public health, safety or well-being. If the board of county commissioners adopts the resolution and finds a building, structure or property to be a public nuisance which must be abated by removal or other corrective action in accordance with this chapter, the following actions shall be taken:
(1)
A copy of the resolution shall be served on the owner, occupant or agent in charge of the building, structure, or property which is the subject of the resolution. If the owner, as shown by the real estate records of the county clerk, or the occupant or agent in charge of the building, structure, or property cannot be served within the county, a copy of the resolution shall be posted on said building, structure or property and a summary of the resolution shall be published once each week for three consecutive weeks in a local newspaper of general circulation in the county.
(2)
Within ten (10) calendar days of the receipt of a copy of the resolution or of the posting and final publication of the resolution, the owner, occupant or agent in charge of the building, structure or property shall commence the removal the building, structure, ruin, rubbish, wreckage, debris or other nuisance, take such other corrective action as required by the resolution, or file a written objection with the county clerk requesting a de novo hearing before the board of county commissioners.
(3)
If a written objection is filed as required in this section, the board of county commissioners shall:
(C)
Any person aggrieved by the final decision of the board of county commissioners after the de novo hearing in the previous subsection may appeal to the First Judicial District Court pursuant to Rule 1-074 NMRA.
(D)
The county may abate the nuisance as provided in the resolution at the cost and expense of the owner, if the owner, occupant or agent in charge of the building, structure or premise fails to:
(1)
Within ten (10) calendar days of being served a copy of the resolution or of the posting and publishing of the resolution, commence abating the nuisance; or
(2)
Within five (5) calendar days after the determination by the board of county commissioners that the resolution shall be enforced, commence abating the nuisance;
(3)
If the determination is appealed, within thirty (30) calendar days after the district court enters judgment sustaining the determination of the board of county commissioners, commence abating the nuisance; or
(4)
Fails to timely complete the abatement as required by the resolution.
The reasonable cost of the abatement shall constitute a lien against the lot or parcel of land on which the nuisance existed. The lien shall be foreclosed in the manner provided in NMSA 1978, §§ 3-36-1 through 3-36-6. |
(E)
The county may pay for the costs of abating a nuisance which is the subject of a nuisance resolution under this section by granting to the person abating such nuisance the legal title to all salvageable materials in lieu of all other compensation. The board of county commissioners may allocate funds each fiscal year from which costs of administering this chapter, including, but not limited to, the costs of the nuisance hearing officer, of professionals to inspect property and determine the existence of nuisance conditions, and of attorneys to prosecute actions in court, and the abatement of nuisances may be paid.
(F)
Any person or entity abating any nuisance which is the subject of a nuisance resolution under this section shall leave the property in a clean, level and safe condition, suitable for further occupancy or construction and with all excavations filled.
(Ordinance 2023-04 adopted 7/25/2023)
If the CEO determines that the appropriate enforcement mechanism is the criminal process, a criminal citation shall be filed in a court of competent jurisdiction. A person shall be guilty of a separate offense for each and every day or portion thereof during which any such violation continues. Upon conviction of any such violation, such person may be punished by fine of not more than $300.00 or by imprisonment for not more than ninety (90) calendar days, or by both such fine and imprisonment and as otherwise allowed under NMSA 1978, § 4-37-3.
(Ordinance 2023-04 adopted 7/25/2023)