Facts About Donating Land for Housing in New Mexico

  • Article IX, Section 14 of The New Mexico State Constitution prohibits state and local government from making “any donation to or in aid of any person, association or public or private corporation.”
  • House Joint Resolution 10 (HJR10) to amend the State Constitution was introduced by Representative Ben Lujan. According to the fiscal note, the proposed amendment would amend “Article 9, Section 14 of the Constitution of New Mexico to allow the state, counties and municipalities to donate land owned by the state, county, or municipality for the construction on it of affordable housing.”
  • After being approved by the legislature, HJR10 was put on the general election ballot in 2002 and was approved by voters with 52% of the vote, thereby amending the New Mexico State Constitution to allow the donation of land by state and local government for affordable housing.
  • Enabling legislation for the amendment, The Affordable Housing Act, Chapter 6, Article 27 NMSA 1978, (AHA), passed in 2004. Language in the statute makes it abundantly clear that state and local government may “donate, provide or pay all, or a portion, of the costs of land for the construction on the land of affordable housing.” The AHA establishes the Mortgage Finance Authority (MFA) as the rule making body for the implementation of the AHA.
  • The MFA amended its rules in 2015 and lays them out in a 29 page document. To donate land for housing, state and local governments DO NOT need to issue a Request for Proposal. Land donation for affordable housing is a matter of policy for government in New Mexico as long as the donation follows the AHA and regulations of the MFA.
  • According to the AHA and MFA rules, jurisdiction can donate land for housing provided the jurisdiction,
    • Has an enforceable contract that the housing built on donated land be “occupied by low- or moderate-income households (2.6) and that protects the jurisdiction from “the loss of public funds or property in the event that the Qualifying Grantee abandons or otherwise fails to complete the project” (2.7);
    • Completes a review and approval of a budget for the project (2.8)
    • Ensures the grant of land complies with all state and local laws and ordinances (2.10),
    • Creates a clear definition of “low-income and moderate-income” and “setting out requirements for verification of income levels” (2.11); and
    • If a county or municipality donating land, those jurisdictions must have an “existing valid affordable housing plan or housing elements contained in its general plan.”