A. After the hearing, the governing body shall determine whether the district should be formed based upon the interests, convenience or necessity of the owners, residents of the district and citizens of the municipality or county in which the proposed district would be located. If the governing body determines that the district should be formed, it shall adopt a resolution ordering that the district be formed, deleting any property determined not to be directly or indirectly benefited by the district or modifying the general plan and then ordering that a formation determination be conducted and an election be held on the question whether to form the district. A resolution ordering a formation of the district shall state that the district will be governed by a district board consisting of members of the governing body, ex officio, or, upon determination of the governing body, five directors appointed by the governing body, and shall contain the names of the five initial directors and the terms of office of each. If the governing body appoints a district board, it shall appoint a treasurer and a clerk from the appointed members.

B. Before submitting the question of formation of the district to the qualified electors of the proposed district, a formation determination shall be conducted by the governing body among the owners unless a petition is presented to the governing body pursuant to Subsection F of Section 5-11-7 NMSA 1978. In the formation determination, each owner shall have the number of votes or portions of votes equal to the number of acres or portions of acres rounded upward to the nearest one-fifth of an acre owned by that owner in the submitted district.

C. A formation or other determination shall not be a local election for purposes of the Local Election Act [Chapter 1, Article 22 NMSA 1978]. The governing body or the district board may establish local procedures for noticing, conducting and canvassing determinations, which may include determinations made by unanimous written approval of the owners in affidavits executed by the owners and confirmed in a review by the district board.

D. Should the formation determination by the owners result in a three-fourths' majority vote in favor of formation, the question shall also be submitted to a vote of the qualified electors of the proposed district. The conduct of a formation election by qualified electors shall meet the requirements of Section 5-11-7 NMSA 1978.

E. The right of the qualified electors to vote on the question of formation of the district shall not be assigned or delegated to the property owners, or related entities of the property owners, signing a petition submitted to the governing body for formation of a district.

History: Laws 2001, ch. 305, § 6; 2013, ch. 45, § 4; 2019, ch. 212, § 193.

The 2019 amendment, effective April 3, 2019, required a formation determination be conducted among the owners of a proposed public improvement district prior to submitting the question of formation of the district to qualified voters of that district; in Subsection A, after "ordering that", added "a formation determination be conducted and"; in Subsection B, added "Before submitting the question of formation of the district to the qualified electors of the proposed district", after "formation", deleted "election" and added "determination", after "shall", deleted "include" and added "be conducted by the governing body among", after "Subsection", deleted "I" and added "F", added "In the formation determination", and deleted "The right to vote on the question of formation of the district shall not be assigned or delegated to the property owners signing a petition submitted to the governing body for formation of a district or related entities of such property owners."; added a new Subsection C and subsection designation "D."; in Subsection D, added "Should the formation determination by the owners result in a three-fourths' majority vote in favor of formation", and after "qualified electors", added "of the proposed district"; and added Subsection E.

The 2013 amendment, effective July 1, 2013, prohibited the assignment of the right to vote on the question of formation of a public improvement district to the property owners who sign the petition that is submitted to the governing body or to related entities of those property owners; and in Subsection B, added the third sentence.

Applicability. — Laws 2013, ch. 45, § 12 provided that the provisions of Laws 2013, ch. 45, §§ 1 through 4 and 6 through 10, do not apply to an application for formation of a public improvement district submitted to a governing body prior to January 1, 2014.