0001| | 0002| HOUSE BILL 1281 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| INTRODUCED BY | 0005| JAMES G. TAYLOR | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO PROPERTY; ENACTING THE PRIVATE PROPERTY PROTECTION | 0013| ACT. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. SHORT TITLE.--This act may be cited as the | 0017| "Private Property Protection Act". | 0018| Section 2. INVERSE CONDEMNATION.-- | 0019| A. Whenever implementation by the state or any of | 0020| its political subdivisions of any regulatory program operates | 0021| to reduce the fair market value of real property by twenty-five | 0022| percent for the uses permitted at the time the owner acquired a | 0023| title interest, or the date preceding the effective date of the | 0024| regulatory program, whichever is later, the property shall be | 0025| deemed to have been taken for the use of the public. As used | 0001| in this section, regulatory programs include land use planning | 0002| or zoning programs. | 0003| B. The owner or user of real property described in | 0004| Subsection A of this section shall have the right to require | 0005| condemnation by and just compensation from the governmental | 0006| unit, or units, when more than one governmental unit is | 0007| involved, imposing the regulation resulting in decreased value, | 0008| or to receive compensation for the reduction in value caused by | 0009| government action, and in either case to have the compensation | 0010| determined by a jury. When more than one governmental unit is | 0011| involved, the court shall determine the proportion each unit | 0012| shall be required to contribute to the compensation; and fix a | 0013| settlement date not to exceed ninety days. | 0014| C. The compensation for real property taken shall | 0015| be for the full value of the interest taken or for the full | 0016| amount of the decrease in fair market value and shall not be | 0017| limited to the amount by which the decrease in fair market | 0018| value exceeds twenty-five percent. The market value shall be | 0019| established by fully accredited commercial appraisers. | 0020| D. Governmental units subject to the provisions of | 0021| the Private Property Protection Act shall not make waiver of | 0022| the provisions of that act a condition for approval of the use | 0023| of real property or the issuance of any permit or other | 0024| entitlement. An owner or user of real property may accept an | 0025| approval of use, permit or other entitlement granted by a | 0001| governmental unit without compromising rights under the Private | 0002| Property Protection Act if: | 0003| (1) a written reservation of rights is made at | 0004| the time of acceptance of the authorization, permit or other | 0005| entitlement; or | 0006| (2) an oral statement is made before the | 0007| governmental unit granting the authorization, permit or other | 0008| entitlement at a public meeting at which the governmental unit | 0009| renders its decision. | 0010| Section 3. EXCEPTIONS.--No compensation shall be required | 0011| by virtue of the Private Property Protection Act if the | 0012| governmental action: | 0013| A. is a nonregulatory act which results in a | 0014| diminution of the value of the property but does not otherwise | 0015| destroy, damage, trespass upon or take the property or prohibit | 0016| any rightful use of the property; | 0017| B. prohibits uses of the property that are | 0018| injurious or potentially injurious to others or to the public, | 0019| as defined by common law, statute, regulation or rule, but | 0020| injurious or potentially injurious uses does not include uses | 0021| the prohibition of which would confer a benefit on others or on | 0022| the public for which compensation is required under the Private | 0023| Property Protection Act; or | 0024| C. produces benefits to the owner equivalent to or | 0025| greater than any loss to the owner as determined by the fair | 0001| market value of the property before and after the action. | 0002| Section 4. STATUTE OF LIMITATIONS.-- | 0003| A. The statute of limitations for actions brought | 0004| pursuant to this section is the statute of limitations for | 0005| ordinary actions brought for injuries to real property. The | 0006| statute of limitations begins to run upon the final | 0007| administrative decision implementing the regulatory program | 0008| affecting the owner's or user's property. | 0009| B. A program is implemented with respect to an | 0010| owner's or user's property when actually applied to that | 0011| property unless the enactment of the program by itself operates | 0012| to reduce the fair market value of real property, or any | 0013| legally recognized interest therein, to less than seventy-five | 0014| percent of its fair market value for the uses permitted at the | 0015| time the owner acquired a title interest, in which case the | 0016| date of enactment is the date of implementation. | 0017| C. The Private Property Protection Act shall apply | 0018| not only to new regulatory programs, but also to the | 0019| application of regulatory programs in effect on the effective | 0020| date of that act, including, but not limited to, land use law | 0021| or zoning laws and regulations affecting the owner's property. | 0022| Section 5. ENFORCEMENT.--The Private Property Protection | 0023| Act shall be enforced through administrative procedure, | 0024| arbitration, suit at law or any combination thereof at the | 0025| option of the owner. All enforcement costs, including attorney | 0001| fees, shall be borne by the governmental unit taking the | 0002| action, except that an owner who does not prevail in a final | 0003| action for compensation shall bear his own enforcement costs | 0004| and a pro-rata share of any administrative or court costs, and | 0005| an owner who does not prevail in an action for an increase in a | 0006| previously adjudicated compensation award shall bear the like | 0007| costs in the same proportion for any such subsequent actions. | 0008| Section 6. REGULATORY ROLLBACK.-- | 0009| A. If the governmental unit against which inverse | 0010| condemnation is successfully required under Section 2 of the | 0011| Private Property Protection Act is unwilling or unable to pay | 0012| the costs awarded, conditional relaxation is authorized and it | 0013| shall immediately relax the land use planning, zoning or other | 0014| regulatory program as it affects the owner's land and all | 0015| similarly situated land in the jurisdiction in which the | 0016| regulatory program is in effect to the level of regulation in | 0017| place as of the time the owner acquired a title interest. In | 0018| that event, the governmental unit shall be liable to the land | 0019| owner or user for the reasonable and necessary costs of the | 0020| inverse condemnation action, plus any actual and demonstrable | 0021| economic losses caused him by the regulation during the period | 0022| in which it was in effect. | 0023| B. A governmental unit subject to an award of | 0024| compensation under the Private Property Protection Act shall | 0025| relax the land use planning, zoning or other regulatory program | 0001| without further public hearings, proceedings or environmental | 0002| review required. If a governmental unit elects to relax the | 0003| affected regulatory program, the previously effective program | 0004| shall automatically be in effect. | 0005| C. This section shall not be deemed to affect any | 0006| remedy which is constitutionally required. | 0007| D. Any permit, authorization, or other entitlement | 0008| granted under a program rolled back pursuant to this section | 0009| shall, at owner's discretion, continue to be valid, | 0010| notwithstanding any provision of law in the program reinstated | 0011| by the rollback. | 0012| Section 7. LEGAL CHALLENGES.--Nothing in the Private | 0013| Property Protection Act precludes property owners from bringing | 0014| legal challenges to regulatory programs affected by that act in | 0015| instances where the regulatory program-caused diminution in | 0016| value of the property or its use does not exceed twenty-five | 0017| percent of fair market value for the uses permitted at the time | 0018| the owner acquired title interest, and it shall not preclude | 0019| property owners from bringing legal challenges to regulatory | 0020| programs affected by that act based on other provisions of law. | 0021| Section 8. PROPERTY TAX ADJUSTMENT.--After the state or | 0022| any of its political subdivisions enacts a regulatory program | 0023| in a way that reduces the fair market value of a taxpayer's | 0024| property, the county assessor shall adjust the value of the | 0025| property for taxation purposes to reflect that decrease. | 0001|  |