0001| SENATE BILL 654
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| L. SKIP VERNON
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO PROPERTY; ENACTING THE PRIVATE PROPERTY PROTECTION
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0012| ACT.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. SHORT TITLE.--This act may be cited as the
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0016| "Private Property Protection Act".
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0017| Section 2. INVERSE CONDEMNATION.--
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0018| A. Whenever implementation by the state or any of
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0019| its political subdivisions of any regulatory program operates
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0020| to reduce the fair market value of real property by twenty-five
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0021| percent for the uses permitted at the time the owner acquired a
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0022| title interest, or the date preceding the effective date of the
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0023| regulatory program, whichever is later, the property shall be
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0024| deemed to have been taken for the use of the public. As used
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0025| in this section, regulatory programs include land use planning
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0001| or zoning programs.
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0002| B. The owner or user of real property described in
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0003| Subsection A of this section shall have the right to require
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0004| condemnation by and just compensation from the governmental
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0005| unit, or units, when more than one governmental unit is
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0006| involved, imposing the regulation resulting in decreased value,
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0007| or to receive compensation for the reduction in value caused by
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0008| government action, and in either case to have the compensation
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0009| determined by a jury. When more than one governmental unit is
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0010| involved, the court shall determine the proportion each unit
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0011| shall be required to contribute to the compensation; and fix a
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0012| settlement date not to exceed ninety days.
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0013| C. The compensation for real property taken shall
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0014| be for the full value of the interest taken or for the full
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0015| amount of the decrease in fair market value and shall not be
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0016| limited to the amount by which the decrease in fair market
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0017| value exceeds twenty-five percent. The market value shall be
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0018| established by fully accredited commercial appraisers.
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0019| D. Governmental units subject to the provisions of
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0020| the Private Property Protection Act shall not make waiver of
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0021| the provisions of that act a condition for approval of the use
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0022| of real property or the issuance of any permit or other
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0023| entitlement. An owner or user of real property may accept an
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0024| approval of use, permit or other entitlement granted by a
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0025| governmental unit without compromising rights under the Private
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0001| Property Protection Act if:
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0002| (1) a written reservation of rights is made at
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0003| the time of acceptance of the authorization, permit or other
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0004| entitlement; or
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0005| (2) an oral statement is made before the
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0006| governmental unit granting the authorization, permit or other
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0007| entitlement at a public meeting at which the governmental unit
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0008| renders its decision.
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0009| Section 3. EXCEPTIONS.--No compensation shall be required
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0010| by virtue of the Private Property Protection Act if the
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0011| governmental action:
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0012| A. is a nonregulatory act which results in a
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0013| diminution of the value of the property but does not otherwise
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0014| destroy, damage, trespass upon or take the property or prohibit
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0015| any rightful use of the property;
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0016| B. prohibits uses of the property that are
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0017| injurious or potentially injurious to others or to the public,
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0018| as defined by common law, statute, regulation or rule, but
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0019| injurious or potentially injurious uses does not include uses
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0020| the prohibition of which would confer a benefit on others or on
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0021| the public for which compensation is required under the Private
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0022| Property Protection Act; or
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0023| C. produces benefits to the owner equivalent to or
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0024| greater than any loss to the owner as determined by the fair
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0025| market value of the property before and after the action.
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0001| Section 4. STATUTE OF LIMITATIONS.--
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0002| A. The statute of limitations for actions brought
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0003| pursuant to this section is the statute of limitations for
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0004| ordinary actions brought for injuries to real property. The
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0005| statute of limitations begins to run upon the final
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0006| administrative decision implementing the regulatory program
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0007| affecting the owner's or user's property.
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0008| B. A program is implemented with respect to an
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0009| owner's or user's property when actually applied to that
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0010| property unless the enactment of the program by itself operates
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0011| to reduce the fair market value of real property, or any
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0012| legally recognized interest therein, to less than seventy-five
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0013| percent of its fair market value for the uses permitted at the
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0014| time the owner acquired a title interest, in which case the
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0015| date of enactment is the date of implementation.
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0016| C. The Private Property Protection Act shall apply
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0017| not only to new regulatory programs, but also to the
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0018| application of regulatory programs in effect on the effective
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0019| date of that act, including, but not limited to, land use law
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0020| or zoning laws and regulations affecting the owner's property.
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0021| Section 5. ENFORCEMENT.--The Private Property Protection
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0022| Act shall be enforced through administrative procedure,
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0023| arbitration, suit at law or any combination thereof at the
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0024| option of the owner. All enforcement costs, including attorney
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0025| fees, shall be borne by the governmental unit taking the
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0001| action, except that an owner who does not prevail in a final
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0002| action for compensation shall bear his own enforcement costs
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0003| and a pro-rata share of any administrative or court costs, and
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0004| an owner who does not prevail in an action for an increase in a
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0005| previously adjudicated compensation award shall bear the like
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0006| costs in the same proportion for any such subsequent actions.
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0007| Section 6. REGULATORY ROLLBACK.--
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0008| A. If the governmental unit against which inverse
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0009| condemnation is successfully required under Section 2 of the
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0010| Private Property Protection Act is unwilling or unable to pay
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0011| the costs awarded, conditional relaxation is authorized and it
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0012| shall immediately relax the land use planning, zoning or other
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0013| regulatory program as it affects the owner's land and all
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0014| similarly situated land in the jurisdiction in which the
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0015| regulatory program is in effect to the level of regulation in
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0016| place as of the time the owner acquired a title interest. In
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0017| that event, the governmental unit shall be liable to the land
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0018| owner or user for the reasonable and necessary costs of the
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0019| inverse condemnation action, plus any actual and demonstrable
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0020| economic losses caused him by the regulation during the period
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0021| in which it was in effect.
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0022| B. A governmental unit subject to an award of
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0023| compensation under the Private Property Protection Act shall
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0024| relax the land use planning, zoning or other regulatory program
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0025| without further public hearings, proceedings or environmental
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0001| review required. If a governmental unit elects to relax the
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0002| affected regulatory program, the previously effective program
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0003| shall automatically be in effect.
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0004| C. This section shall not be deemed to affect any
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0005| remedy which is constitutionally required.
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0006| D. Any permit, authorization, or other entitlement
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0007| granted under a program rolled back pursuant to this section
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0008| shall, at owner's discretion, continue to be valid,
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0009| notwithstanding any provision of law in the program reinstated
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0010| by the rollback.
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0011| Section 7. LEGAL CHALLENGES.--Nothing in the Private
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0012| Property Protection Act precludes property owners from bringing
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0013| legal challenges to regulatory programs affected by that act in
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0014| instances where the regulatory program-caused diminution in
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0015| value of the property or its use does not exceed twenty-five
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0016| percent of fair market value for the uses permitted at the time
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0017| the owner acquired title interest, and it shall not preclude
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0018| property owners from bringing legal challenges to regulatory
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0019| programs affected by that act based on other provisions of law.
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0020| Section 8. PROPERTY TAX ADJUSTMENT.--After the state or
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0021| any of its political subdivisions enacts a regulatory program
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0022| in a way that reduces the fair market value of a taxpayer's
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0023| property, the county assessor shall adjust the value of the
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0024| property for taxation purposes to reflect that decrease.
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0025|
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