HOUSE BILL 159
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Thomas A. Anderson
AN ACT
RELATING TO REAL PROPERTY; ENACTING THE PRIVATE PROPERTY RIGHTS PROTECTION ACT; CLARIFYING THE USE OF THE POWER OF EMINENT DOMAIN; PROVIDING FOR JUST COMPENSATION; ESTABLISHING A BURDEN OF PROOF; PROVIDING FOR ATTORNEY FEES AND COSTS.
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 Rights Protection Act".
Section 2. DEFINITIONS.--As used in the Private Property Rights Protection Act:
A. "comparable replacement dwelling" means a dwelling that is:
(1) decent, safe and sanitary;
(2) adequate in size to accommodate the occupants;
(3) within the financial means of the person whose dwelling has been taken;
(4) functionally equivalent to the dwelling that was taken;
(5) in an area not subject to unreasonable adverse environmental conditions; and
(6) in a location generally not less desirable than the location of the taken dwelling with respect to public utilities, facilities, services and the place of employment of the person whose dwelling has been taken;
B. "owner" means the holder of fee simple title to real property;
C. "public use" means:
(1) the possession, occupation or enjoyment of real property by the general public or by a public entity but does not include the public benefit of economic development, increased tax base or taxes, employment or general economic health;
(2) the use of real property for the creation or functioning of utilities, common carriers or public infrastructure;
(3) the acquisition of real property to eliminate a direct threat to public health or safety caused by the property in its current condition, including the removal of a structure that is beyond repair or unfit for human habitation or use; or
(4) the acquisition of abandoned real property;
D. "slum" means an area in which numerous buildings, improvements and structures, whether residential or nonresidential, that, by reason of its dilapidation, deterioration, age, obsolescence or inadequate provision for ventilation, light, air, sanitation or open spaces, high density of population, overcrowding or the existence of conditions that endanger life or property by fire or other causes, is conducive to ill health, transmission of disease, infant mortality or crime and is detrimental to public health and safety; and
E. "taken" or "taking" means the transfer of ownership or use from a private property owner to the state or, a political subdivision of the state or to a person by the exercise of the power of eminent domain.
Section 3. EMINENT DOMAIN POWER LIMITED--CONTROLLING LAW.--
A. The power of eminent domain may be exercised only if its use is authorized by the state and for a public use.
B. To the extent that any provision of the Private Property Rights Protection Act may be inconsistent with any other provision of law, other than the constitutions of New Mexico or the United States or preemptory federal law, the provisions of the Private Property Rights Protection Act shall control.
Section 4. SLUM CLEARANCE AND REDEVELOPMENT--COMPARABLE REPLACEMENT DWELLING--MONETARY COMPENSATION.--In an exercise of the power of eminent domain for the purpose of slum clearance and redevelopment, if private property consisting of a person's principal dwelling is taken, the entity exercising the power of eminent domain shall provide the person with a comparable replacement dwelling; provided that if the person desires monetary compensation in lieu of a replacement dwelling, the amount of compensation shall not be less than the amount of money that would be necessary to purchase a comparable replacement dwelling.
Section 5. JUDICIAL QUESTION--BURDEN OF PROOF.--
A. In an eminent domain judicial action, the question of whether the taking is for a public use is a question for the court to determine without regard to a legislative declaration that the taking is for a public use.
B. In an eminent domain judicial action involving slum clearance and redevelopment, the state or a political subdivision of the state shall establish by clear and convincing evidence that:
(1) the real property being taken is necessary to eliminate a direct threat to the public health or safety caused by the property in its current condition, including the need to remove structures that are beyond repair or unfit for human habitation; or
(2) the taking is necessary to acquire abandoned property; and
(3) there is no reasonable alternative to the taking.
Section 6. ATTORNEY FEES AND COSTS.--An owner of real property involved in an eminent domain judicial action:
A. is not liable to the state or a political subdivision of the state for attorney fees or costs;
B. shall be awarded reasonable attorney fees, costs and expenses if the taking is found not to be for a public use; and
C. when the action involves slum clearance and redevelopment, shall be awarded reasonable attorney fees, costs and expenses when the final amount of just compensation offered by the taking entity prior to a court trial is less than the amount of just compensation awarded by a jury or by the court if the owner waives a jury trial.
Section 7. SEVERABILITY.--If any part or application of the Private Property Rights Protection Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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