44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO PROPERTY; ESTABLISHING A PROCESS FOR THE REVIEW OF PROPOSED GOVERNMENT ACTIONS AND POLICIES THAT HAVE CONSTITUTIONAL IMPLICATIONS TO IDENTIFY MEASURES THAT MAY BE INJURIOUS TO OR IN VIOLATION OF PROPERTY RIGHTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as "Regulatory Practices Act".

Section 2. DECLARATION OF POLICY AND PURPOSE.--

A. The legislature finds and declares that:

(1) Article 2, Section 20 of the constitution of New Mexico and the fifth and fourteenth amendments of the United States constitution provide that no person shall be deprived of property without due process of law and no private property shall be taken or damaged for public use without just compensation having first being paid;

(2) recent decisions by the United States supreme court have established a criteria and tests to be used in helping to determine the constitutionality of regulatory programs; and

(3) there is sufficient cause to establish a statutory process that regulatory agencies of government shall follow to carefully evaluate their programs and actions that affect private property so as to assure constitutional compliance.

B. The purpose of the Regulatory Practices Act is to establish an orderly, consistent process that will better facilitate government agencies in their evaluation of proposed regulatory programs or administrative policies to pre-emptively identify actions that are injurious to or result in a taking of private property without providing for the just compensation that is constitutionally required.

Section 3. DEFINITIONS.--As used in the Regulatory Practices Act:

A. "actions or policies that have constitutional implications" means rules, ordinances, resolutions, proposed legislation or government agency policy statements that if implemented or enacted could deprive a person of vested rights of property ownership by limiting the self-directed use or disposition, requiring dedications or exactions from owners of private property without due process of law. The term does not include:

(1) actions in which the power of eminent domain is formally exercised;

(2) law enforcement actions involving seizure of property for forfeiture or as evidence in criminal proceeding;

(3) rules with a genesis in public health or safety that do not go beyond the pale; and

(4) rules that prohibit uses that constitute a public nuisance as defined by background principles of common law;

B. "government agency" means an officer, agency, board, commission, department, institution, branch or instrumentality of the state or any political subdivision of the state;

C. "private property" means all property, real and personal, or ownership interests in property protected by the fifth and fourteenth amendments of the United States constitution or Article 2, Section 20 of the constitution of New Mexico; and

D. "taking" means an uncompensated damaging or deprivation of private property in violation of the state or federal constitution.

Section 4. GUIDELINES FOR ACTIONS OR POLICIES.--

A. The attorney general shall prepare and publish guidelines to assist government agencies in identifying and evaluating actions or policies that have constitutional implications. The attorney general shall review and update the guidelines annually to maintain consistency with changes in the law.

B. A person may make comments, suggestions or provide information in writing to the attorney general concerning the guidelines, and such material shall be considered public information. The attorney general shall consider the comments, suggestions and information in the annual review process.

Section 5. CONSTITUTIONAL IMPACT ASSESSMENT.--

A. Each government agency proposing or implementing actions or policies that have constitutional implications shall designate a person in the government agency to be responsible for ensuring compliance with the provisions of the Regulatory Practices Act. All proposed actions or policies that have constitutional implications shall be submitted to the designated person for review.

B. Using the attorney general's guidelines, the government agency shall prepare a written constitutional impact assessment that includes:

(1) the economic impact of the action or policy on the property owner;

(2) a description of how the action or policy will affect private property and an assessment of the likelihood that the action or policy could result in a taking or deprive persons of vested rights of ownership in property without due process of law;

(3) an estimate of the financial cost to the government agency for compensation should a taking be determined and a source of payment within the agency's budget;

(4) the extent to which the action or policy will interfere with an owner's distinct investment-backed expectations;

(5) the extent to which the action or policy conflicts with a private property owner's expectations of self-directed use and disposition of property;

(6) the character of the action or policy and the nexus of its stated purpose; and

(7) alternatives to the action or policy that would most nearly fulfill the government agency's purpose, but that would reduce the impact on private property owners and the risk of a taking.

C. A copy of the constitutional impact assessment shall be submitted to the department of finance and administration prior to publishing the public notice of intent of the proposed action or policy that has constitutional implications.

Section 6. PUBLIC NOTICE.--

A. A government agency that proposes to engage in actions or policies that have constitutional implications that may result in a taking shall provide at least thirty days' notice of its intent to engage in the proposed action or policy by providing a reasonably specific description of the proposed action or policy in a notice published in a newspaper of general circulation published in the county in which affected private real property is located. If a newspaper of general circulation is not published in that county, the government agency shall publish the notice in a newspaper of general circulation located in a county adjacent to the county in which affected private real property is located. The government agency shall, at a minimum, include in the notice a reasonably specific summary of the constitutional impact assessment that was prepared and the name of the person of the government agency from whom a copy of the full constitutional impact assessment may be obtained.

B. A copy of the notice shall be published in the state register.

Section 7. ENFORCEMENT.--

A. A government action or policy that has constitutional implications requiring a constitutional impact assessment is void if an assessment is not prepared or required notices are not given. A private real property owner affected by a government action or policy taken without the preparation of a constitutional impact assessment may bring suit to invalidate the government action.

B. A suit filed pursuant to this section shall be filed in the district court in the county in which the private real property owner's affected property is located. If the affected property is located in more than one county, the owner may file suit in any county in which the affected property is located.

C. The court shall award a private real property owner who prevails in a suit under this section reasonable and necessary attorney fees and court costs.

Section 8. UPDATING OF CERTAIN CONSTITUTIONAL IMPACT ASSESSMENTS REQUIRED.--

A. A state agency that proposes actions or policies with constitutional implications that may result in a taking as indicated by the constitutional impact assessment shall update the assessment if the action or policy is not adopted before the one hundred eightieth day after the date the public notice is given.