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

RELATING TO PROPERTY; ENACTING THE PRIVATE PROPERTY PROTECTION ACT.

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

Section 1. SHORT TITLE.--This act may be cited as the "Private Property Protection Act".

Section 2. DEFINITIONS.--As used in the Private Property Protection Act:

A. "government unit" means a political subdivision of the state, including a board, commission, council, or combination thereof, or department or agency in the executive branch of government;

B. "market value" means the price a buyer would pay a seller after considering all factors in the marketplace that influence the price of private property;

C. "nonregulatory act" includes closure of a military base or government facility;

D. "owner" means a person or other legal entity created for the purpose of holding legal or equitable title to property for all its beneficial uses available at the time of acquisition and for the value of its future disposition;

E. "private property" means an interest in property as recognized by common law, including land, ground water or surface water rights of any kind that are not owned by the federal government, the state or a political subdivision; and

F. "regulatory program" means an action of a government unit that affects an owner's private property in whole or in part, temporarily or permanently, in a manner that restricts or limits the owner's vested rights in property that would otherwise exist in the absence of the government action.

Section 3. INVERSE CONDEMNATION.--

A. Whenever implementation by the state or any of its political subdivisions of any regulatory program operates to reduce the fair market value of real property by twenty-five percent for the uses permitted at the time the owner acquired a title interest and right of property, or the date immediately preceding the effective date of the regulatory program, whichever is later, the property shall be deemed to have been taken for the use of the public. As used in this section, regulatory programs include land-use planning or zoning programs.

B. The owner of real property described in Subsection A of this section shall have the right to either require condemnation by and just compensation from the governmental unit, or units, when more than one governmental unit is involved, imposing the rule resulting in decreased value, or to receive compensation for the reduction in value caused by government action, and in either case to have the compensation determined by a jury. When more than one governmental unit is involved, the court shall determine the proportion each unit shall be required to contribute to the compensation and fix a settlement date not to exceed thirty days.

C. The compensation for real property taken shall be for the full value of the interest taken or for the full amount of the decrease in fair market value and compensation shall not be limited to the amount by which the decrease in fair market value exceeds twenty-five percent of value as calculated pursuant to Subsection A of this section. The market value shall be established by fully accredited commercial appraisers.

D. Governmental units subject to the provisions of the Private Property Protection Act shall not make waiver of the provisions of that act a condition for approval of the use of real property or the issuance of any permit or other entitlement. An owner of real property may accept an approval of use, permit or other entitlement granted by a governmental unit without compromising rights under the Private Property Protection Act if:

(1) a written reservation of rights is made at the time of acceptance of the authorization, permit or other entitlement; or

(2) an oral statement reserving rights is made before the governmental unit granting the authorization, permit or other entitlement at a public meeting at which the governmental unit renders its decision.

E. A twenty-five percent reduction in market value shall be determined by comparing the market value of the property when the regulatory program is in effect to the market value when the program is not in effect.

Section 4. EXCEPTIONS.--No compensation shall be required pursuant to the Private Property Protection Act if the governmental action:

A. is a nonregulatory act that results in a diminution of the value of the property but does not otherwise destroy, damage, trespass upon or take the property or prohibit any rightful use of the property;

B. prohibits uses of the property that are injurious or potentially injurious to the public health and safety or is a public nuisance, as defined by common law, statute, regulation or rule but shall not include unproven, potentially injurious uses for which compensation is required under the Private Property Protection Act; or

C. produces benefits to the owner equivalent to or greater than any loss to the owner as determined by the fair market value of the property before and after the action.

Section 5. STATUTE OF LIMITATIONS.--

A. The statute of limitations for actions brought pursuant to the Private Property Protection Act is the statute of limitations for ordinary actions brought for injuries to real property, except that the time begins to run upon the final administrative decision implementing the regulatory program affecting the owner's property.

B. A program is implemented with respect to an owner's real property when actually applied to that property unless the enactment of the program by itself operates to reduce the fair market value of the property, or any legally recognized interest therein, to less than seventy-five percent of its fair market value for the uses permitted at the time the owner acquired a title interest, in which case the date of enactment is the date of implementation.

Section 6. ENFORCEMENT.--

A. The Private Property Protection Act shall be enforced through an inverse condemnation suit at law brought by, and at, the sole discretion of the owner. All enforcement costs, including attorney fees, shall be borne by the governmental unit responsible for the regulatory act, except that an owner who does not prevail in a final action for compensation shall bear his own enforcement costs and a pro-rata share of any court costs, and an owner who does not prevail in an action for an increase in a previously adjudicated compensation award shall bear the like costs in the same proportion for subsequent actions.

B. A governmental unit subject to an award of compensation under the Private Property Protection Act shall, within the thirty-day period set by the court, pay to the owner the awarded compensation.

C. Alternatively, the governmental unit against which inverse condemnation is successfully required under Section 3 of the Private Property Protection Act may, within the thirty days set by the court, rescind the land use planning, zoning or other as it affects the owner's land and all similarly situated land in the jurisdiction in which the regulatory program is in effect, without further public hearings, proceedings or environmental review. If the governmental unit elects to rescind the affected regulatory program, the program that was in effect previously shall automatically be in effect. In that event, the governmental unit shall be liable to the landowner for the reasonable and necessary costs of the inverse condemnation action, plus any actual and demonstratable economic losses caused him by the regulation during the period in which that program was in effect.

D. This section shall not be deemed to affect any remedy that is constitutionally required.

E. Any permit, authorization or other entitlement granted under a program rolled back pursuant to this section shall, at the owner's discretion, continue to be valid, notwithstanding any provision of law in the program reinstated by the rollback.

Section 7. LEGAL CHALLENGES.--Nothing in the Private Property Protection Act precludes property owners of real property from bringing legal challenges to regulatory programs affected by that act in instances where the regulatory program caused diminution in value of the property or its use does not exceed twenty-five percent of fair market value for the uses permitted at the time the owner acquired title interest, and it shall not preclude property owners from bringing legal challenges to regulatory programs affected by that act based on other provisions of law.

Section 8. PROPERTY TAX ADJUSTMENT.--After the state or any of its political subdivisions enacts a regulatory program in a way that reduces the fair market value of a taxpayer's property, the county assessor shall adjust the value of the property for taxation purposes to reflect that decrease.