Will You Repeat Your Programming As Temporary Caretakers on The Land, Building Your Temporary Dream Life, Or Will You Instead Create Something On Your Land For Eternity?

SENATE JUDICIARY COMMITTEE  SUBSTITUTE FOR

SENATE BILL 417

47TH LEGISLATURE - STATE OF NEW MEXICO - FIRST  SESSION, 2005

AN ACT

RELATING TO THE CONSERVATION OF NATURAL RESOURCES; ENACTING THE SUSTAINABLE DEVELOPMENT TESTING SITE ACT;  PROVIDING FOR THE APPROVAL OF AREAS TO BE USED FOR  NON-INDUSTRIAL RESEARCH AND TESTING FOR THE PURPOSE OF CAUSING LIVING SYSTEMS TO EMERGE THAT WILL REDUCE THE CONSUMPTION OF AND DEPENDENCE ON NATURAL RESOURCES BY RESIDENTIAL DEVELOPMENT;  PROVIDING THAT CERTAIN RESEARCH  ACTIVITIES WITHIN AN APPROVED AREA ARE TEMPORARILY EXEMPT FROM SPECIFIED LAWS,  ORDINANCES AND RULES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1.  SHORT TITLE.-- This act may be cited as the “Sustainable Development Testing Site Act”.  

Section 2.  FINDINGS  AND PURPOSE. --

A.  The legislature finds that:

(1) the increase in populations and the corresponding decrease in natural resources have created a critical need for more sustainable and environmentally appropriate means of supporting human habitat;

(2) existing laws, ordinances and rules protect the public and the environment by regulating conventional residential construction and development but they do not, by nature, specifically encourage the emergence of alternative sustainable methods of residential construction and development; and

(3) by temporarily relaxing existing regulation of conventional residential development in specific defined and approved areas and while ensuring that permanent environmental damage will be avoided, procedures and rules can be established whereby certain areas can be permitted as test sites to allow specifically designated research into new sustainable technologies.

B. The Purpose of the Sustainable Development Testing Site Act is to allow counties, after review by appropriate state agencies, to permit specific rural areas as “sustainable development testing sites” in which concepts and inventions related to residential sustainable development, including energy, housing, water harvesting, sewage treatment, food production and bio-fuel production, can be tested to the point of failure under conditions involving actual year round inhabitants on the site, all of whom have signed an acknowledgment that they have read a disclosure statement defining the purposes and risks of the sustainable development testing site. 

Section 3. DEFINITIONS.-- As used in the Sustainable Development Testing Site Act:

A. “permittee” means a person who holds a testing site permit;

B. “planning commission” means a county planning commission appointed pursuant to Section 4-57-1 NMSA 1978; provided that, if no county planning commission has been appointed pursuant to that section, “planning commission” means the board of county commissioners;

C. “sustainable development” means a live-in environment composed of structures and systems that inherently produce utilities and life-support systems free of existing conventional grids and disposal systems.  “Sustainable development” includes:

(1) the inherent provision of on-site energy needs via renewable resources;

(2) in accordance with state water law and the rules of the state engineer, the inherent provision of water needs without tapping into aquifers or manipulating surface water runoff;

(3) the inherent provision of sewage treatment needs with zero discharge;

(4) the reuse of materials discarded by modern society; and

(5) the development of organic foods and fuels;

D. “sustainable development research”  means activities conducted at a sustainable development testing site that test ideas, concepts or inventions designed to lead ultimately to sustainable development;

E. “sustainable development testing site” means an area that is:

(1) two acres or less in size;

(2) subject to a testing site permit and existing federal laws and regulations;

F. a “testing site permit” means a permit, issued by a planning commission, that designates an area as a sustainable development testing site and specifies:

(1) the sustainable development research that can be conducted within the site by the permittee; and

(2) the state laws, county ordinances and state and county rules from which the permittee and the research are exempt. 

Section 4. APPLICATION FOR TESTING SITE PERMIT--EVALUATION--NOTICE OF PUBLIC HEARING.--

A. A person desiring a testing site permit shall submit an application to the planning commission for the county in which the proposed sustainable development testing site is located.  The application shall include:

(1) a detailed description of the sustainable development research that will be conducted on the site, including an explanation of the ideas, concepts and inventions that will be tested;

(2) a schematic layout of the site;

(3) the number of inhabitants and employees that are expected to occupy the site;

(4) an assessment of the state laws, county ordinances and state and county rules relating to construction or building requirements, occupancy, zoning or subdivisions that are not practicable for the specific sustainable development testing site and may inhibit the proposed sustainable development research; and

(5) an explanation of how damage to the surrounding area and permanent damage to the area within the site will be avoided if the permittee and the proposed sustainable development research at the site are exempted from the laws, ordinances and rules;

(6) an application fee, set by the planning commission, equal to the estimated costs of evaluating the application, holding the public hearing and administering the permit; and

(7) such other information as may be required by rule of the planning commission or ordinance of the county.

B. Upon receipt of a complete application, the planning commission shall:

(1) forward a copy of the application to the office of the state engineer, to the department of environment and to other state or local agencies charged with enforcing the affected laws, ordinances and rules identified in the application;

(2) set a date, not less than ninety days nor more than one hundred twenty days after receipt of the application, for a public hearing on the application; and

(3) publish in a newspaper of general circulation in the county, and broadcast on a radio station broadcasting in the county, an announcement of its receipt of the application, notice of the hearing and information concerning where an interested person can obtain a copy of the application.

C. The department of environment, the office of the state engineer and each other state and local agency shall, within sixty days after receiving a copy of the application:

(1) evaluate the application and the proposed sustainable development research to be performed at the proposed sustainable development testing site.  In making the evaluation, the agency may communicate with the applicant as necessary to make an accurate evaluation;

(2) determine whether:

(a) the applicant has consulted with the office of the state engineer and has received necessary water right permits or other approval;

(b) the proposed sustainable development testing site and the sustainable development research proposed to be conducted at the site will damage land or air adjacent to the site or will permanently damage the area of the site; and

(c) the proposed sustainable development research at the site is beneficial to sustainable development; and

(3) submit its finding to the planning commission. 

Section 5. APPLICATION FOR TESTING SITE PERMIT--PUBLIC HEARING--DECISION.--

A. At the public hearing for a sustainable development testing site application pursuant to Section 4 of the Sustainable Development Testing Site Act, the planning commission shall hear comments from all interested persons, federal, state or local agencies and, if appropriate, responses from the applicant.

B. Within two weeks after the hearing, the planning commission shall, in writing, make its decision.  The planning commission shall issue a testing site permit if it determines that the applicant is in receipt of the appropriate permit or approval issued by the state engineer and that:

(1) no state or local agency, evaluating the sustainable development testing site application pursuant to Section 4 of the Sustainable Development Testing Site Act, has determined that the site or sustainable development research proposed to be conducted at the site will damage land, water or air adjacent to the site or will permanently damage the area of the site;

(2) no existing federal laws, regulations or permits or state environmental laws, regulations or permits will be violated by the proposed sustainable development research at the site;

(3) the proposed sustainable development research at the site is beneficial to sustainable development; and

(4) the site and proposed sustainable development research are otherwise beneficial to the county and to the state.

C. A testing site permit shall include:

(1) the specific sustainable development research that may be conducted at the sustainable development testing site;

(2) the maximum number of structures that may be constructed;

(3) the maximum number of individuals that may inhabit the site;

(4) the specific state laws, county ordinances and state and county rules relating to construction or building requirements, occupancy, zoning or subdivisions otherwise applicable to the permittee and the permittee’s sustainable development research on the site but from which the permittee’s sustainable development research is exempt; and

(5) such other restrictions on the site and the permittee’s activities as determined by the planning commission.

D. A testing site permit shall be issued for a term specified by the planning commission, not to exceed five years, subject to renewal for another five-year period. 

Section 6. TESTING SITE PERMIT--EFFECT.-- As long as a testing site permit is in effect:

A. the permittee, when conducting sustainable development research that is specified in the permit, shall adhere to all applicable laws and rules except those specifically exempted in the permit.

B. no other permit or approval of the state or any of its political subdivisions shall be required of the permittee to conduct the sustainable development research that is specified in the permit, except for permits and approvals administered by the department of environment;

C. nothing in the Sustainable Development Testing Site Act or the permit shall be deemed to allow the permittee to appropriate or otherwise use underground or surface water without first obtaining a permit from the state engineer.  New appropriations of water and water rights transfers shall in no event be exempted from state water law and the rules of the state engineer;

D. employees and agents of the state or the county may, at all reasonable times, enter the sustainable development testing site for the purpose of inspecting the site and activities conducted on the site to ensure that conditions specified in the permit are being met;

E. the permittee shall annually, no later than the anniversary date of the permit, submit a report to the planning commission and to the department of environment describing the sustainable development research conducted during the preceding twelve months and summarizing the results.  The report shall also include all required monitoring data for soil, water and air.  All information contained in  the report and all other information learned from activities pursuant to the permit shall be made available to the public;

F. the permittee shall allow no person, including participants, visitors and inhabitants, except for inspector from the department of environment and other state agencies, to enter the sustainable development testing site without signing an acknowledgment that the person has read a disclosure statement about the sustainable development testing site;

G. the planning commission may revoke the permit if it finds, after a public hearing, that the permittee has violated a permit provision or a provision of the Sustainable Development Testing Site Act, that the testing site has contaminated soil, water or air in excess of allowable state or federal standards or that the testing site poses a threat to human health, public welfare or the environment; and

H. a permittee may apply to have a permit amended by submitting a new application pursuant to Section 4 of the Sustainable Development Testing Site Act; provided that, if the planning commission determines that the proposed amendment will not substantially alter the sustainable development research or other activities conducted at the sustainable development testing site, it may waive the requirements of that section for notice and public hearing. 

Section 7. EXPIRATION OF TESTING SITE PERMITS.--Upon the expiration of the term of a testing site permit:

A. all activities within the area of the sustainable development testing site shall comply with all applicable laws, ordinances or rules, including permitting requirements; and

B. new wastewater treatment and disposal technologies developed at the site shall be reviewed by the wastewater technical advisory committee and, if appropriate, listed by the department of environment as approved for use pursuant to Section 9-7A-15 NMSA 1978; and

C. new building construction technologies developed at the site shall be review by the Construction Industries Division and, if appropriate, listed as approved on a case by case basis until such time as they are included in the Uniform Building Code. 

Section 8.  SALE OF LAND WITHIN A SUSTAINABLE DEVELOPMENT TESTING SITE.-- Land within a sustainable development testing site shall not be sold in whole or in part unless:

A. the subsequent owner obtains a testing site permit pursuant to the provisions of the Sustainable Development Testing Site Act; or

B.  the owner or subsequent owner enters into an agreement with the planning commission to bring the area within the sustainable development testing site into compliance with all federal, state and local laws that would be applicable to the site in the absence of a testing site permit. 

Section 9. PROMULGATION OF RULES.--  The regulation and licensing department shall define a new category of rules applicable to sustainable  development testing sites and promulgate rules for the category.  The rules shall be designed to facilitate and encourage sustainable development research while maintaining levels of safety and environmental protection equivalent to those required by rules applicable to areas that are not within sustainable development testing sites.