A. At the hearing of the governing body on the provisional order creating an improvement district, an interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning the:

(1) propriety and advisability of constructing the improvement;

(2) estimated cost of the improvement;

(3) manner of paying for the improvement; or

(4) estimated maximum benefit to each individual tract or parcel of land.

B. The governing body may recess the hearing from time to time so that all protestants may be heard.

C. Within thirty days after the governing body has, by adoption of a resolution:

(1) concluded the hearing;

(2) determined:

(a) the advisability of constructing the improvement; and

(b) the type and character of the improvement; and

(3) created the improvement district, a person who during the hearing filed a written protest with the governing body protesting the construction of the improvement may appeal the determination of the governing body pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

D. Where no person has filed a written protest during the hearing and all owners of property to be assessed, upon conclusion of the hearing, submit to the governing body written statements in favor of the creation of the improvement district for the types and character of improvements indicated in the provisional order, those owners shall be deemed to have waived their right to bring any action challenging the validity of the proceedings or the amount of benefit to be derived from the improvements.

History: 1953 Comp., § 14-32-6, enacted by Laws 1965, ch. 300; 1991, ch. 199, § 9; 1998, ch. 55, § 8; 1999, ch. 265, § 8.

Cross references. — For appeal of final decisions by agencies to district court, see 39-3-1.1 NMSA 1978.

For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Paragraph C(3).

The 1998 amendment, effective September 1, 1998, in the section heading, substituted "appeal to" for "action in"; in Subsection A, substituted "an interested person" for "any interested person"; rewrote Paragraph A(3); and added the Subsection designation D, and in that Subsection, substituted "those" for "such".

The 1991 amendment, effective April 4, 1991, in Subsection A, substituted "or" for "and" at the end of Paragraph (3) and "estimated maximum benefit to each" for "amount to be assessed against the" in Paragraph (4); inserted "by adoption of a resolution" in the introductory phrase in Subsection C; substituted "adoption of the resolution by" for "the determination of" in the next to last sentence; and added the final sentence.

Nature of statute. — Statute prescribing time to set aside municipal determination on improvement program was a statute of limitations rather than an appeal statute granting a right of review. Oliver v. Board of Trustees, 1931-NMSC-025, 35 N.M. 477, 1 P.2d 116 (decided under prior law).

Review of city's determination of benefit. — District court review under Subsection C is limited to a review of the record made before the governing body. It lacks jurisdiction to conduct a de novo hearing. Rowley v. Murray, 1987-NMCA-139, 106 N.M. 676, 748 P.2d 973, cert. denied, 106 N.M. 627, 747 P.2d 922 (decided under prior law).

A city's determination of benefit should be affirmed by the district court, unless it determines that the absence of any benefit is clear or unless there is evidence of fraud, mistake, or discrimination that amounts to arbitrary conduct. Rowley v. Murray, 1987-NMCA-139, 106 N.M. 676, 748 P.2d 973, cert. denied, 106 N.M. 627, 747 P.2d 922 (decided under prior law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63 C.J.S. Municipal Corporations § 1097.