Legislators Request AG Opinion on Proposed County Ordinance

Oct 8, 2019

Senate President Pro Tem Mary Kay Papen (District 38) and Senator John Arthur Smith (District 35) have asked New Mexico Attorney General Hector Balderas to investigate the legality of a proposed Doña Ana County Commission ordinance related to private-sector, residential PACE (property assessed clean energy) loans that would be administered and enforced by the County Treasurer. Here is a statement from the NM Senate Majority office:

Under the proposed ordinance, these loans would assume a superior first position, superseding any other residential housing debt, including first mortgages and secondary home equity lines of credit.

The opinion request was hand-delivered to Balderas’ office in response to growing constituent concerns about the Doña Ana County proposed implementation of PACE loans. Among the concerns: potential anti-donation conflicts with the state constitution, local opposition to the proposed ordinance from multiple business sectors (including many residential solar system installers), and unintended consequences likely to result from the proposed implementation framework. There have also been troubling allegations of predatory and deceptive business practices by some installers from concerned residents who have already purchased residential systems under the expected framework, who now fear they may have unwittingly become party to federal or state renewable energy tax credit fraud.

“Senator Smith and I fully supported and both voted yes for HB440 last session,” said Senator Papen. “Our concerns have absolutely nothing to do with residential adoption of good, clean renewable energy systems on honest and fair terms.”

“Our increasing concerns, and only reason for requesting an opinion from the AG, are simply about the questionable, even if well intentioned, proposed ordinance making the county treasurer administer for-profit residential renewable energy system loans, including enforcing liens resulting from non-payment on these PACE loans. It also appears that some commercial installers selling these systems under PACE or other federal and state tax credit mechanisms may not be operating in good faith,” continued Papen.   

Doña Ana County Treasurer Eric Rodriguez has been a vocal opponent of the proposed measure, and the state County Treasurers Association has unanimously opposed the proposed mechanism.

At the request of an informal coalition of real estate agents, mortgage lenders, home builders and solar installers, the Doña Ana County Commission has scheduled a public work session on the matter for October 8. A vote on the measure is currently scheduled for the Commission’s October 22 meeting.