SENATE BILL 452
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
George K. Munoz
AN ACT
RELATING TO PROPERTY; PROVIDING THAT "PUBLIC USE" FOR EMINENT DOMAIN DOES NOT INCLUDE THE PUBLIC BENEFITS OF ECONOMIC DEVELOPMENT; REQUIRING JUST COMPENSATION TO BE AT LEAST EQUAL TO THE PURCHASE PRICE; PROVIDING JUST COMPENSATION TO LANDOWNERS FOR A DIMINUTION IN VALUE OF THEIR PROPERTY CAUSED BY THE ENACTMENT OF A LAND USE LAW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Eminent Domain Code is enacted to read:
"[NEW MATERIAL] PUBLIC USE.--
A. Property may only be condemned if authorized by law and for a public use; provided that "public use" does not mean the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health.
B. Whenever an attempt is made to condemn property for a use alleged to be public, the question whether the use is public shall be a judicial question and determined without regard to any legislative assertion that the use is public."
SECTION 2. A new section of the Eminent Domain Code is enacted to read:
"[NEW MATERIAL] JUST COMPENSATION.--Just compensation for the taking of a condemnee's property shall be an amount equal to the original purchase price paid for the property by the condemnee or the current appraised market value of the property, whichever is greater."
SECTION 3. [NEW MATERIAL] DIMINUTION IN VALUE FROM ENACTMENT OF LAND USE LAW--JUST COMPENSATION--EXEMPTIONS--REMEDIES.--
A. If the existing rights to use, divide, sell or possess real property are reduced by the enactment or applicability of any land use law enacted after the date the real property is transferred to the owner and such action reduces the fair market value of the property, the owner is entitled to just compensation from the state or the political subdivision of the state that enacted the land use law.
B. This section does not apply to a land use law that:
(1) limits or prohibits a use or division of real property if it is narrowly tailored to protect the public health and safety, including rules and regulations relating to fire and building codes, health and sanitation, transportation or traffic control, solid or hazardous waste or pollution control;
(2) limits or prohibits the use or division of real property commonly and historically recognized as a public nuisance under common law;
(3) is required by federal law;
(4) limits or prohibits the use or division of private real property for the purpose of housing sex offenders, selling illegal drugs, liquor control, pornography, obscenity, nude or topless dancing or other adult-oriented businesses if the land use laws are consistent with the constitution of New Mexico or the United States constitution;
(5) establishes locations for utility facilities; or
(6) does not directly regulate an owner's real property.
C. The owner of real property shall make a written demand in a specific amount for just compensation based on diminution in value to the state or the political subdivision of the state that enacted the land use law. The owner shall not be required to submit a land use application to remove, modify, vary or otherwise alter the application of the land use law to the owner's real property as a prerequisite to demanding or receiving just compensation pursuant to this section.
D. If a land use law continues to apply to the owner's real property more than ninety days after the owner makes a written demand for just compensation pursuant to Subsection C of this section, the owner may file suit in a court of competent jurisdiction in the county in which the real property is located, unless the state or political subdivision of the state and the owner reach an agreement on the amount of just compensation to be paid; the state or political subdivision of the state amends or repeals the land use law; or the state or political subdivision of the state issues to the owner a binding waiver of enforcement of the land use law on the owner's specific real property. A written demand for just compensation supersedes any other statutory notice or demand requirements.
E. Any demand for owner relief or any waiver that is granted in lieu of compensation runs with the land.
F. An action for just compensation based on diminution in value to real property shall be made or forever barred within three years of the effective date of the land use law or of the first date the reduction of the existing rights to use, divide, sell or possess property applies to the owner's real property, whichever is later. A written demand for just compensation made by the owner of real property pursuant to Subsection C of this section is an exhaustion requirement that tolls the three-year time period for ninety days or the length of time that it takes the state or the political subdivision of the state that enacted the land use law to deny the written demand, whichever is less.
G. The remedy created by this section is in addition to any other remedy that is provided by the laws and constitution of New Mexico or the United States constitution and is not intended to modify or replace any other remedy.
H. In an action for just compensation based on diminution in value:
(1) the question whether a land use law is exempt under Subsection B of this section shall be a judicial question and determined without regard to any legislative assertion that the land use law is exempt. The state or a political subdivision of the state that enacted the land use law shall establish by clear and convincing evidence that the land use law is exempt pursuant to Subsection B of this section; and
(2) a prevailing plaintiff in an action for just compensation pursuant to this section may be awarded costs, expenses and reasonable attorney fees. An owner shall not be liable to the state or any political subdivision of the state for attorney fees or costs in an action for just compensation.
I. Nothing in this section prohibits the state or any political subdivision of the state from reaching an agreement with an owner to waive the owner's claim for just compensation based on diminution in value of the owner's real property if the claim directly results from a government action requested by the owner.
J. As used in this section:
(1) "fair market value" means the most likely price estimated in terms of money that the real property would bring if exposed for sale in the open market, with reasonable time allowed in which to find a purchaser buying with knowledge of all the uses and purposes to which the real property is adapted and for which the real property is capable and is equal to or greater than the original purchase price paid by the owner for the real property;
(2) "just compensation" means the sum of money that is equal to the reduction in fair market value of the real property resulting from the enactment of the land use law as of the date of enactment of the land use law;
(3) "land use law" means a statute, rule, ordinance, resolution or law enacted by the state or a political subdivision of the state that regulates the use or division of land or any interest in land or that regulates accepted farming or forestry practices; and
(4) "owner" means a holder of a fee title to real property.
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