REGULATED CHILD CARE ZONING REQUIREMENTS, the official text

SENATE BILL 96

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Heather Berghmans and Linda M. Trujillo and Linda Serrato

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 LOCAL
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,
Chapter 300, Section 14-20-1, as amended) is amended to read:

"3-21-1. ZONING--AUTHORITY OF COUNTY [OR]--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 county or municipality is] a
zoning authority [and] 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 [county or municipal] 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
buildings, structures or land in each district. All such
regulations shall be uniform for each class or kind of
[buildings] 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 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 [including zoning authorities
of home rule municipalities] 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. For the purpose of this section,
"multigenerational" means any number of persons related by
blood, common ancestry, marriage, guardianship or adoption.]

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.

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.

I. As used in this section:

(1) "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;

(2) "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;

(3) "multigenerational" means any number of
persons related by blood, common ancestry, marriage,
guardianship or adoption;

(4) "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

(5) "zoning authority" means the planning,
zoning or land use regulatory body of a county or
municipality."

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 [14-20-1 through 14-20-12
New Mexico Statutes Annotated, 1953 Compilation] 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. [or imposes] other higher standards."

SECTION 3. 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

[Homeowners] Homeowner Association Act and the association's

community documents.

B. Notwithstanding the provisions of Subsection A

of this section:

(1) an association shall not, within the

association, prohibit the operation of a child care home or

assess or collect a fee or tax for the operation of a child

care home; and

(2) in the event of a conflict between an

association's community documents and the early childhood

education and care department's registration or licensing

requirements for a child care home, the association shall

provide reasonable exceptions to the association's community

documents to allow any child care home within the association

to comply with the applicable child care home registration or

licensing requirements of the department.

[B.] C. 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.

[C.] D. Prior to imposition of a fine or

suspension, 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.

[D.] E. 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 [C] D of this section,

the fine or suspension may be imposed, calculated from the date

of violation.

[E.] F. 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.

G. As used in this section "child care home" means

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."

SECTION 4. 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 [in any way] 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 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, licensed group child care homes or licensed child
care centers.

[B.] 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 5. [NEW MATERIAL] FEE OR TAX ON CHILD CARE
HOME--PROHIBITED.--Notwithstanding any authority granted to a
county or municipality by law, a county or municipality shall
not assess or collect a business license, fee or regulatory tax
for the operation of 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.

SECTION 6. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2026.

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