HOUSE BILL 564
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Bob Wooley
AN ACT
RELATING TO PROPERTY; AMENDING SECTIONS OF THE RIGHT TO FARM ACT TO PROTECT AGRICULTURAL OPERATIONS OR FACILITIES FROM NUISANCE CLAIMS; PROVIDING GUIDANCE FOR COMPENSATORY DAMAGES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 47-9-3 NMSA 1978 (being Laws 1981, Chapter 287, Section 3, as amended) is amended to read:
"47-9-3. AGRICULTURAL OPERATIONS DEEMED NOT A NUISANCE.--
A. Any agricultural operation or agricultural facility is not, nor shall it become, a private or public nuisance by any changed condition in or about the locality of the agricultural operation or agricultural facility if the operation was not a nuisance at the time the operation began and has been in existence for more than one year; except that the provisions of this section shall not apply whenever an agricultural operation or agricultural facility is operated negligently or illegally such that the operation or facility is a nuisance.
B. Any ordinance or resolution of any unit of local government that makes the operation of any agricultural operation or agricultural facility a nuisance or provides for abatement of it as a nuisance under the circumstances set forth in this section shall not apply when an agricultural operation [is located within the corporate limits of any municipality as of April 8, 1981] was established prior to the date of adoption of any such ordinance or resolution.
C. The established date of operation is the date on which an agricultural operation commenced or an agricultural facility was originally constructed. If an agricultural operation or agricultural facility is subsequently expanded or a new technology is adopted, the established date of operation does not change."
SECTION 2. Section 47-9-6 NMSA 1978 (being Laws 1991, Chapter 129, Section 4) is amended to read:
"47-9-6. DAMAGES.--[The provisions of the Right to Farm Act do not affect or defeat the right of a person to recover damages from injuries or damages sustained by him because of the pollution of, or change in the condition of, waters of a stream or because of an overflow on his lands.]
A. The exclusive compensatory damages that may be awarded to a plaintiff for an alleged nuisance shall be:
(1) if the nuisance is determined to be a permanent nuisance, limited to the reduction in the fair market value of the plaintiff's property caused by such nuisance, not to exceed the fair market value of such plaintiff's property; and
(2) if the nuisance is determined to be a temporary nuisance, compensatory damages, limited to the lesser of:
(a) the diminution in fair rental value of the plaintiff's property caused by such nuisance; or
(b) the reasonable cost to repair or mitigate any injury to the plaintiff caused by such nuisance.
B. If a plaintiff or plaintiff's successor in interest brings a subsequent nuisance claim against the same defendant, that defendant's successors in interest or any other individual or entity for an alleged nuisance related to the same or a substantially similar agricultural operation or agricultural facility, such plaintiff and plaintiff's successors in interest shall be limited to the compensatory damages for a permanent nuisance as provided in this section. Damages paid to the plaintiff or plaintiff's successors in interest from any previous court order, judgment or settlement based upon the same or a substantially similar agricultural operation or agricultural facility, whether caused by the defendant, the defendant's successors in interest or any other party, shall be considered in any subsequent case for the purposes of determining that the total amount of damages awarded shall not exceed the fair market value of the plaintiff's property.
C. If a defendant in a private nuisance case where the nuisance is alleged to originate from an agricultural operation or agricultural facility demonstrates a good-faith effort to abate a condition that is determined to constitute a nuisance and such good-faith effort is unsuccessful, the nuisance shall be deemed to be not capable of abatement and compensatory damages shall be limited as provided in Paragraph (1) of Subsection A of this section. Substantial compliance with a court order regarding such agricultural operation or agricultural facility shall constitute a good-faith effort as a matter of law.
D. No person shall have standing to bring an action for a private nuisance regarding an agricultural operation or agricultural facility unless the person has an ownership interest in the property alleged to be affected by the nuisance.
E. If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end, the provisions of this section are declared to be severable."
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