REGULATED CHILD CARE ZONING REQUIREMENTS

SHPAC/SB 96
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AN ACT
RELATING TO CHILD CARE; PROVIDING THAT REGISTERED CHILD CARE
HOMES, LICENSED FAMILY CHILD CARE HOMES AND LICENSED GROUP
CHILD CARE HOMES BE TREATED AS RESIDENTIAL USES IN THE
APPLICATION OF LOCAL ORDINANCES AND REGULATIONS; PROHIBITING
LOCAL AUTHORITIES FROM IMPOSING ADDITIONAL REGULATIONS THAT
DO NOT ALSO APPLY TO OTHER PRIVATE RESIDENCES WITHIN THE SAME
ZONING DISTRICT; PROVIDING THAT LOCAL AUTHORITIES SHALL NOT
ASSESS OR COLLECT CERTAIN FEES OR REGULATORY TAXES FROM
REGISTERED CHILD CARE HOMES, LICENSED FAMILY CHILD CARE
HOMES, LICENSED GROUP CHILD CARE HOMES OR LICENSED CHILD CARE
CENTERS; PROVIDING THAT LICENSED CHILD CARE CENTERS BE
PERMITTED BY RIGHT USE IN ZONES DESIGNATED AS COMMERCIAL;
DEFINING "PERMITTED BY RIGHT" AND OTHER TERMS; LIMITING
ZONING AUTHORITIES' REGULATION OF OFF-STREET PARKING AS IT
APPLIES TO CHILD CARE HOMES AND CHILD CARE CENTERS;
CLARIFYING THE APPLICATION OF RULES PROMULGATED PURSUANT TO
CHAPTER 59A, ARTICLE 52 NMSA 1978; PROVIDING THAT A HOMEOWNER
ASSOCIATION SHALL NOT PROHIBIT THE OPERATION OF, OR ASSESS OR
COLLECT A FEE OR TAX FOR THE OPERATION OF, A REGISTERED CHILD
CARE HOME, LICENSED FAMILY CHILD CARE HOME OR LICENSED GROUP
CHILD CARE HOME.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 3-21-1 NMSA 1978 (being Laws 1965,
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Chapter 300, Section 14-20-1, as amended) is amended to read:
"3-21-1. ZONING--AUTHORITY OF COUNTY--MUNICIPALITY--
EXCEPTIONS--REGISTERED CHILD CARE HOMES--LICENSED FAMILY
CHILD CARE HOMES--LICENSED GROUP CHILD CARE HOMES--LICENSED
CHILD CARE CENTERS.--
A. For the purpose of promoting health, safety,
morals or the general welfare, a zoning authority may
regulate and restrict within its jurisdiction the:
(1) height, number of stories and size of
buildings and other structures;
(2) percentage of a lot that may be
occupied;
(3) size of yards, courts and other open
space;
(4) density of population; and
(5) location and use of buildings,
structures and land for trade, industry, residence or other
purposes.
B. The zoning authority may:
(1) divide the territory under its
jurisdiction into districts of such number, shape, area and
form as is necessary to carry out the purposes of Sections
3-21-1 through 3-21-14 NMSA 1978; and
(2) regulate or restrict the erection,
construction, reconstruction, alteration, repair or use of
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buildings, structures or land in each district. All such
regulations shall be uniform for each class or kind of
building within each district, but regulation in one district
may differ from regulation in another district.
C. All state-licensed or state-operated community
residences for persons with a mental or developmental
disability and serving ten or fewer persons may be considered
a residential use of property for purposes of zoning and may
be permitted use in all districts in which residential uses
are permitted generally, including particularly residential
zones for single-family dwellings.
D. A board of county commissioners of the county
in which the greatest amount of the territory of the
petitioning village, community, neighborhood or district lies
may declare by ordinance that a village, community,
neighborhood or district is a "traditional historic
community" upon petition by twenty-five percent or more of
the qualified electors of the territory within the village,
community, neighborhood or district requesting the
designation. The number of qualified electors shall be based
on county records as of the date of the last general
election.
E. Any village, community, neighborhood or
district that is declared a traditional historic community
shall be excluded from the extraterritorial zone and
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extraterritorial zoning authority of any municipality whose
extraterritorial zoning authority extends to include all or a
portion of the traditional historic community and shall be
subject to the zoning jurisdiction of the county in which the
greatest portion of the traditional historic community lies.
F. Zoning authorities shall accommodate
multigenerational housing by creating a mechanism to allow up
to two kitchens within a single-family zoning district, such
as conditional use permits.
G. Notwithstanding the provisions of Subsections A
through F of this section, a child care home shall be
considered a residential use of property for purposes of
zoning and shall be permitted by right. In the application
of local ordinances or regulations to a child care home, a
local authority shall not:
(1) impose additional regulations or
requirements or require other discretionary local government
review or approval, including conditional or special use
permits, that do not also apply to other private residences
within the same zoning district;
(2) assess or collect a fee or tax for the
privilege of operating a child care home; or
(3) impose off-street parking regulations
that exceed the off-street parking regulations for a
single-family residence within the same zoning district.
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H. Notwithstanding the provisions of Subsections A
through F of this section, a licensed child care center shall
be permitted by right in any zoning district designated as
commercial, mixed-use or multifamily residential. In the
application of local ordinances or regulations to a licensed
child care center, a local authority shall not:
(1) assess or collect a fee or tax for the
privilege of operating a licensed child care center;
(2) impose a different or more restrictive
building, safety or nuisance ordinance than the ordinances
applied within the same zoning district; or
(3) impose off-street parking restrictions
or requirements; provided, however, that a zoning authority
may require a licensed child care center to provide
designated on-site stacking spaces or a lane for the safe and
efficient loading and unloading of children; and provided
further that:
(a) the number of stacking spaces
required by the zoning authority shall not be more than one
space per ten children of the center's proposed licensed
capacity; and
(b) the licensed child care center
shall be permitted to meet the staff parking needs through
the use of available on-street parking spaces, shared parking
agreements or off-site parking.
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I. As used in this section:
(1) "child care center" means a licensed,
nonresidential facility that provides child care and services
to and supervision of children for less than twenty-four
hours of any day;
(2) "child care home" includes a registered
child care home, licensed family child care home or licensed
group child care home, as defined in Section 9-29-2 NMSA
1978;
(3) "local authority" means a county or
municipality, a zoning authority or any board,
instrumentality or other body of a county or municipality
that has authority to enact ordinances or adopt regulations;
(4) "multigenerational" means any number of
persons related by blood, common ancestry, marriage,
guardianship or adoption;
(5) "permitted by right" means a use that is
designated as an allowed use within a zoning district and
does not require conditional use approval, special exceptions
or permits, variances or any other discretionary approval by
a local authority beyond compliance with the applicable
standards of the zoning district; and
(6) "zoning authority" means the planning,
zoning or land use regulatory body of a county or
municipality."
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SECTION 2. Section 3-21-11 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-20-9) is amended to read:
"3-21-11. CONFLICTS BETWEEN ZONING REGULATIONS AND
OTHER STATUTES AND ORDINANCES.--Except as provided in
Subsections G and H of Section 3-21-1 NMSA 1978, if any other
statute or regulation or other local ordinance, resolution or
regulation adopted under authority of Sections 3-21-1 through
3-21-14 NMSA 1978 is applicable to the same premises, the
provision shall govern which requires:
A. the greater width or size of yards, courts or
other open spaces;
B. the lower height of building or a less number
of stories;
C. the greater percentage of lot or land to be
left unoccupied; or
D. other higher standards."
SECTION 3. Section 3-38-4 NMSA 1978 (being Laws 1981,
Chapter 37, Section 4, as amended) is amended to read:
"3-38-4. BUSINESS LICENSING--BUSINESS REGISTRATION--
APPLICATION TO DO BUSINESS--ISSUANCE OF LICENSE OR
REGISTRATION--PRORATION OF LICENSE FEE--RENEWAL OF
REGISTRATION--STAGGERED PERIODS FOR BUSINESS REGISTRATION.--
A. Prior to engaging in any business, any person
proposing to engage in a business, except for a child care
facility, shall pay to the municipality any applicable
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business registration fee or any applicable business license
fee. A municipality may provide by ordinance for the
prorating of the business license fee and the issuing of a
business license for the remainder of the calendar year in
which the business is to be operated.
B. Each year, any person engaging in a business
within a municipality shall apply for the renewal of any
applicable business license as authorized in Section 3-38-1
NMSA 1978 or any applicable business registration as
authorized in Section 3-38-3 NMSA 1978 with the municipal
clerk. A municipality may provide by ordinance for a
staggered system of business registration.
C. Any person filing an application for issuance
or renewal of any business license as authorized in Section
3-38-1 NMSA 1978 or any business registration as authorized
in Section 3-38-3 NMSA 1978 shall include on the application
the applicant's current taxation and revenue department
taxpayer identification number or evidence of application for
a current taxation and revenue department taxpayer
identification number. No municipality shall issue or renew
a business license or a business registration authorizing the
conduct of a business to any person who has not furnished to
the municipality the information required in this section.
D. As used in this section, "child care facility"
includes a licensed child care center, registered child care
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home, licensed family child care home or licensed group child
care home as defined in Section 9-29-2 NMSA 1978."
SECTION 4. Section 47-16-18 NMSA 1978 (being Laws 2019,
Chapter 30, Section 10) is amended to read:
"47-16-18. ENFORCEMENT OF COVENANTS--DISPUTE
RESOLUTION--REGISTERED CHILD CARE HOMES--LICENSED FAMILY CHILD
CARE HOMES--LICENSED GROUP CHILD CARE HOMES--CONFLICTS.--
A. Each association and each lot owner and the
owner's tenants, guests and invitees shall comply with the
Homeowner Association Act and the association's community
documents.
B. Notwithstanding the provisions of Subsection A
of this section:
(1) an association shall not adopt or
enforce a restriction, covenant, condition, bylaw, rule,
regulation, provision of a governing document or master deed
provision or take any other action that effectively prohibits,
unreasonably restricts or limits, directly or indirectly, the
use of a lot as a child care home. Any such adoption or
enforcement shall not be deemed a de facto prohibition solely
because it imposes reasonable requirements that are uniformly
applied to and imposed on all lot owners in the association
and is not directed at prohibiting, restricting or limiting
child care homes;
(2) an association shall not require, assess
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or collect a fee, tax or assessment on a child care home or
for the operation of a child care home that is not also
required, assessed or collected on all other lots within the
same association, except for generally applicable fees or
assessments reasonably related to actual, documented costs or
impacts and imposed uniformly on all lot owners in the
association; and
(3) in the event of a conflict between an
association's restriction, covenant, condition, bylaw, rule,
regulation, provision of a governing document or master deed
provision and the early childhood education and care
department's registration or licensing requirements for a
child care home, that department’s requirements shall take
precedent to the extent necessary to allow compliance with
state licensing requirements, and the association shall
provide reasonable accomodations for requirements applicable
to child care homes; provided that such accommodations do not
materially impair the association’s ability to protect the
health, safety or property of the association’s lot owners.
C. Nothing in this section prohibits an association
from adopting or enforcing on all lot owners uniformly applied
restrictions, covenants, conditions, bylaws, rules or
regulations that apply equally to all lot owners in the
association and do not restrict child care homes to any
greater degree than any other lot owner, including
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restrictions, covenants, conditions, bylaws, rules or
regulations regarding:
(1) parking and traffic;
(2) noise or nuisance impacts;
(3) safety and security measures;
(4) architectural or exterior appearance
standards; or
(5) use, scheduling or access to common
elements.
D. Compliance with state child care licensing or
registration requirements shall not exempt a licensed child
care home from compliance with association rules that do not
conflict with those requirements.
E. Unless otherwise provided for in the
community documents, the association may, after providing
written notice and an opportunity to dispute an alleged
violation other than failure to pay assessments:
(1) levy reasonable fines for violations of
or failure to comply with any provision of the community
documents; and
(2) suspend, for a reasonable period of
time, the right of a lot owner or the lot owner's tenant,
guest or invitee to use common areas and facilities of the
association.
F. Prior to imposition of a fine or suspension,
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the board shall provide an opportunity to submit a written
statement or for a hearing before the board or a committee
appointed by the board by providing written notice to the
person sought to be fined or suspended fourteen days prior
to the hearing. Following the hearing or review of the
written statement, if the board or committee, by a majority
vote, does not approve a proposed fine or suspension, neither
the fine nor the suspension may be imposed. Notice and a
hearing are not required for violations that pose an imminent
threat to public health or safety.
G. If a person against whom a violation has
been alleged fails to request a hearing or submit a written
statement as provided for in Subsection F of this section,
the fine or suspension may be imposed, calculated from the
date of violation.
H. A lot owner or the association may use a
process other than litigation used to prevent or resolve
disputes, including mediation, facilitation, regulatory
negotiation, settlement conferences, binding and nonbinding
arbitration, fact-finding, conciliation, early neutral
evaluation and policy dialogues, for complaints between the
lot owner and the association or if such services are required
by the community documents.
I. As used in this section "child care home" means
a registered child care home, licensed family child care home
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or licensed group child care home as defined in Section 9-29-2
NMSA 1978."
SECTION 5. Section 59A-52-18 NMSA 1978 (being Laws
1984, Chapter 127, Section 964, as amended) is amended to
read:
"59A-52-18. RULES--STATEWIDE EFFECT--RESERVED POWER OF
MUNICIPALITIES--TRAINING.--
A. The rules promulgated pursuant to Chapter 59A,
Article 52 NMSA 1978 shall have uniform force and effect
throughout the state and no municipality or subdivision shall
enact or enforce any ordinances or rules inconsistent with the
statewide rules promulgated pursuant to that article. Nothing
in that article shall impair the power of any municipality to
regulate the use of its land by zoning, building codes or
restricted fire district rules, except as provided in
Subsection B of this section.
B. The rules promulgated pursuant to Chapter 59A,
Article 52 NMSA 1978 shall:
(1) not impose regulations on registered
child care homes, licensed family child care homes or licensed
group child care homes as defined in Section 9-29-2 NMSA 1978
that do not also apply to other private residences;
(2) treat licensed child care centers as
defined in Section 9-29-2 NMSA 1978 as a permitted by right
use in all zones designated as commercial, mixed-use or
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multifamily residential; and
(3) not impair the power of the early
childhood education and care department to determine standards
and regulate registered child care homes, licensed family
child care homes or licensed group child care homes.
C. The state fire marshal shall offer training to
certified firefighters to assist with fire and fire safety
inspections.
D. As used in this section, "permitted by right"
means a use that is designated as an allowed use within a
zoning district and does not require conditional use approval,
special exceptions or permits, variances or any other
discretionary approval by the zoning authority beyond
compliance with applicable standards of the zoning district."
SECTION 6. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2026.