TITLE 17 PUBLIC UTILITIES AND UTILITY
SERVICES
CHAPTER 8 RENEWABLE ENERGY
PART 3 EMINENT
DOMAIN
17.8.3.1 ISSUING
AGENCY: New Mexico Renewable Energy Transmission
Authority (“Authority”).
[17.8.3.1 NMAC - N, 12/15/2011]
17.8.3.2 SCOPE:
This rule applies to the authority’s exercise of the authority’s power of
eminent domain for acquiring property or interests in property for projects the
authority has determined are eligible facilities, as that term is defined in
NMSA 1978, Section 62-16A-2, and for which the authority has determined to
participate in the project, but in circumstances in which the authority is not acquiring
the project. In
exercising any authority provided for herein, the authority shall act in
accordance with all applicable laws.
[17.8.3.2 NMAC - N, 12/15/2011]
17.8.3.3 STATUTORY
AUTHORITY: NMSA, 1978, Sections 42A-1-1 et seq., and 62-16A-1 et seq.
[17.8.3.3 NMAC - N, 12/15/2011]
17.8.3.4 DURATION:
Permanent.
[17.8.3.4 NMAC - N, 12/15/2011]
17.8.3.5 EFFECTIVE
DATE: December 15, 2011, unless a later date is
cited at the end of a section.
[17.8.3.5 NMAC - N, 12/15/2011]
17.8.3.6 OBJECTIVE: The purpose of this rule is to specify the
objective standards and procedures the authority will follow in considering
applications for exercise of its power of eminent domain, the negotiation
procedures required of persons submitting applications with landowners and
those claiming an interest in property, the contents of applications,
condemnation procedures, and related matters.
[17.8.3.6 NMAC - N, 12/15/2011]
17.8.3.7 DEFINITIONS:
In addition to the definitions in NMSA 1978, Sections 62-16A-2, 42A-1-2, , as used in this rule:
A. “Agreement” means a project ownership
and property agreement as described in this rule and includes the applicant and
the authority’s understanding regarding the authority’s participation in the project,
project ownership, project financing, project management, and any other matter
required by the authority. The
parameters of the authority’s exercise of its eminent domain powers shall be
set forth in the agreement.
B. “Authority” means the renewable energy
transmission authority.
C. “Applicant” means any person that
submits an application to the authority pursuant to this rule and in the manner
set forth herein. Applications will only
be considered if the authority has already agreed to participate in the project.
D. “Eligible facilities” means facilities
to be financed or acquired by the authority, in which, within one year after
beginning the transmission or storage of any electricity, and thereafter, at
least 30 percent of the electric energy, as estimated by the authority,
originates from renewable energy sources.
E. “Eminent domain code” means the
statutory provisions governing condemnation in New Mexico, NMSA 1978, Section
42A-1-1 et seq., as modified from
time to time.
F. “Person” includes a natural individual,
partnership, corporation, association other legal or fiduciary entity and a
governmental entity.
G. “Project” means, for the purposes of
this rule, an undertaking by the authority to finance or plan, acquire,
maintain and operate eligible facilities located in part or in whole within the
state of New Mexico in which the authority has agreed to participate.
H. “Property” means real property under
the laws of the New Mexico, and may include one or more individual parcels of
land or a portion or portions thereof, any improvements thereon or connected
therewith or any easement or other interest therein.
I. “Property owner(s)” means any
person or entity having an ownership interest in the property.
[17.8.3.7 NMAC - N, 12/15/2011]
17.8.3.8 PROJECT
OWNERSHIP AND PROPERTY AGREEMENT:
A. The
applicant may apply to the authority for approval of an agreement and exercise of
the authority’s eminent domain powers for the purpose of property acquisition,
condemnation, property management, property disposition, and related matters. The parameters of the authority’s exercise of
its eminent domain powers shall be set forth in the agreement.
B. Contents of application: The applicant must file with the authority an
application, which shall contain:
(1) a description of
the project, including:
(a) identification of
all applicants and other persons with a financial interest in the project;
(b) a description of
the project and its purpose(s);
(c) a description of
the proposed project route in New Mexico, including a map showing the route in
New Mexico;
(d) a description of
the property on the proposed project route that the applicant does not have an
interest in; and
(e) a description
of the scope of work for the project and the projected timeline for completion
of the work;
(2) a
copy of the draft agreement(s) proposed for approval;
(3) copies
of memorandum of understanding (MOU) or prior agreements, if any, regarding the
authority’s support for or participation in the project;
(4) a statement
explaining why the property comprising the proposed route in New Mexico is
necessary for the project;
(5) copies of any
reviews of the proposed project under the National Environmental Policy Act, 42
U.S.C. Section 4321 et seq. (NEPA),
or other similar reviews;
(6) evidence that the
applicant has made reasonable and diligent efforts to acquire the property by
negotiation, including by offering at least fair market value for the property;
(7) a statement verifying,
under oath, that the proposed exercise of eminent domain authority does not
involve taking any utility-owned property;
(8)
a copy of a determination by the New Mexico public regulation commission
that the proposed project will not materially diminish electric service
reliability of the transmission system in New Mexico, if issued;
(9) a form of draft
publication of the notice in compliance with Subsection C of 17.8.3.8 NMAC;
(10) any other
information or exhibits the applicant wishes to submit in support of the
application.
C. Any
information contained in the application which the applicant believes is exempt
from disclosure pursuant to the Inspection of Public Records Act (Chapter 14,
Article 2 NMSA 1978) or the New Mexico Renewable Energy Transmission Authority
Act (Chapter 6, Article 16A NMSA 1978) must be clearly marked in the
application and, if feasible, separated from the remainder of the application.
D. Notice
and comment on application:
(1) Notice.
(a) At the same time the application is
submitted to the authority, the applicant shall provide a copy of the
application to private property owner(s) of record of the properties that lie
within the proposed project route in New Mexico, in the same manner as provided
in Subsection B of 17.8.3.8 NMAC.
(b) The authority shall cause notice of the
application to be published in a newspaper of general circulation available in
every county in which the property within the proposed project route in New
Mexico lies. The notice shall not include any information from the application
that is exempt from disclosure pursuant to the Inspection of Public Records Act
(Chapter 14, Article 2 NMSA 1978) or the New Mexico Renewable Energy
Transmission Authority Act (Chapter 6, Article 62A NMSA 1978). Upon request by the authority, the applicant
shall publish notice in accordance with this rule.
(c) Such published notice shall appear at
least three times a minimum of seven days apart, with the first occurrence
published within 14 days after the date of the authority’s approving the form
of notice and at least 30 days prior to the date of the authority board meeting
at which the application will be considered.
(d) The notice shall contain the following
information:
(i) identification
of the applicant(s);
(ii) a description of the project and its purpose;
(iii) a description of
the proposed project route in New Mexico and a statement that a map is
available at RETA’s offices;
(iv) a statement that
the applicant has applied to the authority for approval of the agreement and
exercise of its eminent domain authority
pursuant to this rule;
(v) the
date, time and place of the authority meeting at which the authority may
consider the application, if known, together with the further statement that
interested persons should contact the authority for confirmation of the meeting
date, time, and place;
(vi) a statement that any interested person may
examine the application and related exhibits, except such information exempt
from disclosure pursuant to the Inspection of Public Records Act (Chapter 14,
Article 2 NMSA 1978) or the New Mexico Renewable Energy Transmission Authority
Act (Chapter 6, Article 62A NMSA 1978), submitted to the authority at the
offices of the authority in Santa Fe, and indicating the address and telephone
number of the authority;
(vii) a statement that property owners whose property
lies within the proposed project route in New Mexico may submit written comments
on the application to the authority on or before the date of the board of
directors’ meeting at which the authority will consider the application;
(viii) a statement that property owner(s) whose property
lies within the proposed project route in New Mexico may appear at the time and
place of the authority’s board of directors’ meeting at which the authority
will consider the application, and may make written or oral comments on the
application at the meeting;
(ix) a statement that
any and all agency approvals required by law have been obtained and all reviews
required by any other agency have been satisfactorily completed. Copies of all supporting documentation or
review results shall be submitted along with the application.
(e) The applicant shall bear the cost of
publication.
(f) If the authority requires the applicant to
publish the notice in accordance with this rule, the applicant shall ensure
that an affidavit of publication is provided to the authority promptly upon
last publication of the notice.
(2) Comment. The authority shall provide opportunity for
written and oral comments on the application by property owner(s) whose property
lies within the proposed project route in New Mexico. The authority shall
provide a comment period of at least 30 days following last publication of the
notice pursuant to Paragraph (1) of Subsection D of 17.8.3.8 NMAC, but may
provide a reasonable extension of the comment period, not to exceed sixty 60 additional
days. Oral comments shall be
received at the meeting of the authority wherein the issue is to be considered.
E. Findings and determination:
(1) For projects in which the
authority already participates, the authority may approve the proposed agreement
if the criteria below are satisfied in the sole discretion of the board of directors
of the authority:
(a) The property comprising the route in New
Mexico is necessary for the project. Consideration and selection of the
proposed route through review under NEPA, or other governmental review, if
undertaken, shall serve to satisfy this requirement.
(b) The proposed project route in New Mexico
will not involve taking utility-owned property.
Applicant’s affidavit or letters or documentation from relevant New
Mexico utilities shall serve to satisfy this requirement.
(c) The project will not materially diminish
electric service reliability of the transmission system in New Mexico, as
determined by the New Mexico public regulation commission. If the public regulation commission has not
yet made this determination, the authority may approve the application subject
to a New Mexico public regulation commission determination.that the project
will not materially diminish electric service reliability of the transmission
system in New Mexico.
(d) The project and the proposed agreement, as
may be modified by the authority, are in the public interest.
(e) The applicant has the financial capacity
to complete the project.
(2) The authority shall make its determination
on the application within 120 days of the applicant’s submittal of its
application, which may be extended if the comment period is extended.
(3) If the authority denies the application,
the authority shall inform the applicant in writing within 15 days after the
denial the reasons for the denial in the context of the criteria set
forth herein, and
shall provide opportunity to submit an amended application. The new application
shall include additional information demonstrating the applicant has met the
requirements for approval set forth herein.
The amended application will go through the approval process contained
in this section including the requirements for public notice and comment.
[17.8.3.8 NMAC - N, 12/15/2011]
17.8.3.9 NEGOTIATION
WITH PROPERTY OWNERS: Prior to the exercise of
the authority’s eminent domain powers, negotiations with private property owner(s)
by the applicant must be by reasonable and
diligent efforts to acquire property needed for the project, including by
offering at least fair market value for the property. At any
time during applicant’s negotiations with property owner(s) and upon the applicant’s
request, the authority may participate in such negotiations in order to
facilitate the voluntary acquisition of property for a project, but the applicant
shall remain responsible for conducting good faith negotiations.
[17.8.3.9 NMAC - N, 12/15/2011]
17.8.3.10 CONDEMNATION PROCEDURES:
A. Condemnation
proceedings.
(1) Upon initiating condemnation procedures,
the authority shall expeditiously and diligently follow the condemnation
procedures set forth in the Eminent Domain Code found at NMSA 1978, Section
42A-1-1 et seq. as it may be modified
from time to time.
(2) The applicant shall cooperate with the authority
to assist the authority in carrying out the authority’s procedures set forth
herein and its obligations under the law in an expeditious and diligent manner.
B. Costs
and expenses.
(1) The applicant shall be responsible for all
costs and expenses incurred by the authority in the condemnation action,
including all attorneys’ fees. The applicant
shall pay all such costs and expenses within 30 days after receipt of an
invoice for such from the authority, subject to dispute provisions which shall
be set forth in the agreement. If an applicant
fails to timely pay all such costs and expenses, the authority may discontinue
the condemnation action.
(2) Prior to the authority’s initiation of
condemnation proceedings under the Eminent Domain Code, the applicant shall
obtain a surety or cash bond in an amount agreed to by the parties and as
required by law.
(3) The authority shall
diligently work to reasonably minimize damages, other costs, and litigation
expenses for which the applicant is responsible. The authority shall consult
with the applicant prior to incurring substantial costs or expenditures,
whenever practicable. The authority
shall not make any offer above fair market value without prior approval by the applicant.
[17.8.3.10 NMAC - N, 12/15/2011]
17.8.3.11 OTHER AGREEMENTS; DISPOSITION OF PROPERTY:
A. In
addition to the agreement, the authority and the applicant may enter into any
other contracts or agreements they deem necessary setting forth the roles and
obligations of the parties in the condemnation proceeding, the disposition and
use of the property once acquired by the authority, and any other matter. The authority may dispose of any or all of
the property in accordance with New Mexico law if it determines that doing so
fulfills a public purpose. The use of the property for the same purpose for
which the property was condemned is deemed to fulfill a public purpose.
B. If
the property cannot be used for the purpose for which it was condemned, and if
practicable and permissible under existing laws, the authority shall offer the
property owner an opportunity to purchase the property from the authority at
fair market value.
[17.8.3.11 NMAC - N, 12/15/2011]
17.8.3.12 INDEMNIFICATION: The agreement shall provide that the applicant
shall indemnify and hold harmless the authority against any and all liability
arising pursuant to the authority’s actions under this rule and the Eminent
Domain Code.
[17.8.3.12 NMAC - N, 12/15/2011]
17.8.3.13 VARIANCES:
A. An applicant may request a variance from any of the requirements
of this rule, provided such variance will not create a conflict with state law.
B. A
petition for variance must be supported by an affidavit signed by an officer of
the applicant or someone with authority to sign for the applicant.
C. The applicant
shall send notice of any request for a variance to the property owner(s) who are
affected by the variance or who possess an ownership interest in the property. The notice shall indicate the nature of the
variance requested and state that the property owner(s) may submit written or oral comments on
the request for a variance. The authority may, at its
discretion, require an informal conference or formal evidentiary hearing prior
to making its determination on a request for variance. In the event an informal conference or a formal
evidentiary hearing is held, oral comment shall be accepted at that time.
D. A
petition for variance shall:
(1) identify
the section of this rule for which the variance is requested;
(2) describe the situation that necessitates
the variance;
(3) describe the
effect of complying with this rule on the applicant if the variance is not
granted; and
(4) describe the
result the variance will have if granted.
[17.8.3.13 NMAC - N, 12/15/2011]
HISTORY OF 17.8.3 NMAC: [RESERVED]