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. 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, 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 option to either require condemnation by and just compensation from the governmental unit, or units, when more than one governmental unit is involved, imposing the regulation 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 ninety 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.

Section 3. 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 others or to the public, as defined by common law, statute, regulation or rule but only if the prohibition does not confer a benefit on others or on the public 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 4. STATUTE OF LIMITATIONS.--

A. The statute of limitations for actions brought pursuant to this section is the statute of limitations for ordinary actions brought for injuries to real property. The statute of limitations 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.

C. The Private Property Protection Act shall apply not only to new regulatory programs, but also to the application of regulatory programs in effect on the effective date of that act, including, but not limited to, land-use law or zoning laws and regulations affecting the owner's property.

Section 5. ENFORCEMENT.--The Private Property Protection Act shall be enforced through administrative procedure, arbitration, suit at law or any combination thereof at the option of the owner. All enforcement costs, including attorney fees, shall be borne by the governmental unit taking the action, 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 administrative or 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.

Section 6. REGULATORY ROLLBACK.--

A. If the governmental unit against which inverse condemnation is successfully required under Section 2 of the Private Property Protection Act is unwilling or unable to pay the costs awarded, conditional relaxation is authorized and it shall immediately relax the land-use planning, zoning or other regulatory program as it affects the owner's land and all similarly situated land in the jurisdiction in which the regulatory program is in effect to the level of regulation in place as of the time the owner acquired a title interest. In that event, the governmental unit shall be liable to the land owner or user for the reasonable and necessary costs of the inverse condemnation action, plus any actual and demonstrable economic losses caused him by the regulation during the period in which it was in effect.

B. A governmental unit subject to an award of compensation under the Private Property Protection Act shall relax the land-use planning, zoning or other regulatory program without further public hearings, proceedings or environmental review required. If a governmental unit elects to relax the affected regulatory program, the previously effective program shall automatically be in effect.

C. This section shall not be deemed to affect any remedy which is constitutionally required.

D. Any permit, authorization or other entitlement granted under a program rolled back pursuant to this section shall, at 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.