N.M. Code R. § 18.20.5.12 – Obstruction and Encroachments Review Board

A. There shall be an Obstruction and Encroachment Review Board established in each Highway District in New Mexico. Said Board shall be composed of three (3) persons: the District Engineer or his designee; the District Traffic Engineer or his designee; the District Construction Engineer or his designee; when issues regarding construction or operations of roadway segments.
B. There shall be an Obstruction and Encroachment Review Board established in each Highway District in New Mexico. Said Board shall be composed of three (3) persons: the District Engineer or his designee; the Right of Way Division Director or his designee; the Project Development Engineer; when issues regarding encroachments during the design/project development stages occur.
C. Upon receipt of a timely Request for Hearing from an owner who has received a notice to remove his encroachment or non-hazardous obstruction, the District Engineer or his designee shall assign a hearing date no later than thirty (30) days for the date of the request and send notification, in writing, to the owner, the members of the Board and the Department’s General Counsel of the time, place an date of the hearing, the nature of the matter to be heard, and the authority of the Board.
D. The proceedings before the Board shall be in conformance with the Administrative Procedures Act, Section 12-8-1, et seq., N.M.S.A. 1978. The findings of the Board shall be by a preponderance of the evidence.
E. The determination to be made by the Board shall be as follows: Encroachments: A determination as to whether or not an encroachment upon highway right-of-way in fact exists;
(1) If an encroachment exists, whether or not it falls within one of the permitted encroachments identified in Section 8 of this rule [now 18.20.5.8 NMAC];
(2) If the encroachment is not a permitted type, whether or not it poses a danger to the health, safety or welfare of the motoring public, interferes with the operations of the Department, or is otherwise not in conformance with 18 NMAC 20.5 [now 18.20.5 NMAC];
(3) If the encroachment is to be permitted to remain, whether it shall be dealt with by means of an encroachment agreement or by means of a sale to the owner of the parcel upon which the encroachment rests; and
(4) If the encroachment must be removed, a reasonable time for the accomplishment of this removal by the owner before the Department may proceed to remove the offending encroachment at the owners expense.
F. Non-Hazardous Obstructions: A determination as to whether or not the object constitutes a non-hazardous obstruction;
(1) If it does, whether or not the owner has shown sufficient mitigating circumstances to permit the object to remain; and
(2) If the object is required to be removed, a reasonable time for the accomplishment of this removal by the owner before the Department may proceed to remove the offending non-hazardous obstruction at the owners expense.
[12/31/98; Recompiled 11/16/01]