Estate and Heirs of Sanchez v. County of Bernalillo

• Decision Date: 31 August 1995
• Docket Number: No. 22709,22709
• Citation: 1995 NMSC 58,120 N.M. 395,902 P.2d 550
• Parties: The ESTATE AND HEIRS OF Isabel SANCHEZ, deceased, d/b/a Los Arboles Land Company, Petitioners-Respondents, v. COUNTY OF BERNALILLO, a body politic, and its commissioners, Patrick J. Padilla, Marion M. Cottrell, Orlando Vigil, Lenton Malry, and Patricia H. Cassidy, Respondents-Petitioners.
• Court: New Mexico Supreme Court

Page 550

902 P.2d 550

120 N.M. 395

The ESTATE AND HEIRS OF Isabel SANCHEZ, deceased, d/b/a Los Arboles Land Company, Petitioners-Respondents, v. COUNTY OF BERNALILLO, a body politic, and its commissioners Patrick J. Padilla, Marion M. Cottrell, Orlando Vigil, Lenton Malry, and Patricia H Cassidy, Respondents-Petitioners.

No. 22709.

Supreme Court of New Mexico.

Aug. 31, 1995.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Timothy R. Van Valen, George R. McFall, Albuquerque, for petitioners.

Oman, Gentry & Yntema, P.A., Hessel E. Yntema, III, Albuquerque, for respondents.

OPINION

RANSOM, Justice.

¶1 The Estate of Isabel Sanchez sought damages for inverse condemnation after Bernalillo County denied the Estate's application for a special use permit to develop a mobile home park. The district court entered summary judgment in favor of the County and its commissioners. The Estate appealed and the Court of Appeals reversed. We issued a writ of certiorari to the Court of Appeals. Because the facts neither support an inference that the Estate has lost all or substantially all beneficial use of the property nor an inference that the Estate suffered an injury different from that suffered by the general public, we reverse the Court of Appeals.

¶2 Facts and proceedings. In 1992 the Estate filed with the County an application for a special use permit to develop a 179-unit mobile home park on property owned by the Estate. The County denied the application, and the Estate brought suit, first seeking to reverse the denial of the permit and, second, seeking damages for inverse condemnation. In November 1992 the Estate filed a motion for summary judgment on the first claim, arguing that the County lacked zoning authority over the subject property.

¶3 In February 1993 the district court granted summary judgment to the Estate. The County appealed to the Court of Appeals. In an unpublished decision the Court of Appeals affirmed the summary judgment on grounds that the County had not preserved the argument that it had zoning authority over the subject property, stating:

In our calendar notice, we instructed the County to inform this Court of how the specific [statutory "savings clause"] argument concerning zoning authority that the County sought to raise on appeal was preserved below. The document filed by the County in response to the calendar notice does not address the preservation issue. Therefore, we affirm on this issue due to the County's failure to address the issue in its response. See State v. Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct.App.) ("party responding to a summary calendar notice must come forward and specifically point out errors of law and fact"), cert. denied, 107 N.M. 267, 755 P.2d 605 (1988).

The County sought a writ of certiorari from this Court, which was denied. The case was then remanded to the district court.

¶4 On remand the Estate moved for summary judgment on the inverse condemnation claim, arguing that the unauthorized exercise of zoning authority constituted a taking of the property. In response, the County filed a motion for reconsideration of the court's determination that the County did not have zoning authority over the subject property and filed its own motion for summary judgment on the inverse condemnation claim, arguing that the Estate could not recover inverse condemnation damages because it had not been denied all beneficial use of the property. At a hearing on the motions the Estate conceded that the County had not denied it all beneficial use of the property. The district court denied the Estate's motion for summary judgment and the County's motion for reconsideration but granted the County's motion for summary judgment.

¶5 The Estate appealed to the Court of Appeals from the summary judgment, and the County cross-appealed the denial of its motion to reconsider. The Court of Appeals reversed the district court's denial of the motion for reconsideration, holding that under Edwards v. Board of County Commissioners, 119 N.M. 114, 121, 888 P.2d 996, 1003 (Ct.App.1994), the County had zoning authority over the Estate's property. The Court also reversed the summary judgment on the inverse condemnation claim in an effort "to restore the parties as best we can to the position that they would have been in if [the Estate's] motion for summary judgment on the [unauthorized exercise of zoning authority] claim had been denied." The Court expressed no opinion on the merits of the inverse condemnation claim.

¶6 The Estate filed a petition for a writ of certiorari to this Court, arguing that Edwards should not apply to it because of "the law of the case" doctrine. We denied that petition and do not address that issue. The County also filed a petition for a writ of certiorari, arguing that the inverse condemnation claim must fail and that the Court of Appeals erred by not reaching the merits of that claim. We granted that petition and now address only whether summary judgment in favor of the County was proper on the inverse condemnation claim.

¶7 To constitute a taking, a regulation must deprive a property owner of all or substantially all beneficial use of the subject property. The Estate concedes that the zoning regulation in this case did not deprive it of all or substantially all beneficial use of the subject property. It argues, however, that the County's imposition of the property use restrictions in question was not reasonably related to a proper purpose and was, therefore, a taking. For support, the Estate cites Temple Baptist Church, Inc. v. City of Albuquerque, 98 N.M. 138, 646 P.2d 565 (1982).

The general rule is that a regulation which imposes a reasonable restriction on the use of private property will not constitute a "taking" of that property if the regulation is (1) reasonably related to a proper purpose and (2) does not unreasonably deprive the property owner of all, or substantially all, of the beneficial use of his property.

Id. at 144-45, 646 P.2d at 571-72. A similar rule was stated in Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 320-21, 600 P.2d 258, 266-67 (1979) (quoting Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 755-56 (N.D.1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979)).

¶8 The Estate argues that under Temple Baptist a regulation restricting the use of private property is a taking unless it is both reasonably related to a proper purpose and does not deprive the owner of all beneficial use of the subject property. Thus it contends that even though it cannot prove it was deprived of all beneficial use of the property, the County's alleged unlawful exercise of its police power was per se not reasonably related to a proper purpose and was a taking. The Estate contends that, even if within the County's zoning authority, it is yet to be decided whether the zoning regulation is otherwise reasonably related to a proper purpose, and therefore summary judgment on the inverse condemnation claim is inappropriate.

¶9 The Estate assumes that the converse of a true proposition must also be true. The Estate specifically argues "[t]hat a government regulation that is not reasonably related to a proper purpose of that government constitutes a 'taking' requiring payment of just compensation under Article II, Section 20 of the New Mexico Constitution and Section 42A-1-29, NMSA 1978, as interpreted by Temple Baptist." While it is true that all regulations reasonably related to a proper purpose which do not deprive the property owner of all beneficial use are not takings, it is not necessarily true that regulations which are not reasonably related to a proper purpose are takings.

¶10 In Miller v. City of Albuquerque, 89 N.M. 503, 505, 554 P.2d 665, 667 (1976), this Court expressly held that "[o]nly if the governmental regulation deprives the owner of all beneficial use of his property will the action be unconstitutional." This rule was reiterated verbatim in Aragon & McCoy v. Albuquerque National Bank, 99 N.M. 420, 424, 659 P.2d 306, 310 (1983), and continues to be the rule in this jurisdiction. Neither Miller nor Aragon & McCoy indicates that government action not reasonably related to a proper purpose is sufficient to constitute a taking in the absence of a deprivation of all beneficial use of the subject property. In both cases, however, the Court either implicitly or expressly found that the regulation at issue was a valid exercise of police power. Thus, these cases do not fully answer the question.

¶11 The term "property" in a constitutional sense refers not to the physical object itself but to a group of rights granted to the property owner, including the right to use and enjoyment of the object. Burrows v. City of Keene, 121 N.H. 590, 432 A.2d 15, 19 (1981) (quoting United States v. General Motors Corp., 323 U.S. 373, 377-78, 65 S.Ct. 357, 359-60, 89 L.Ed. 311 (1945)). The federal Takings Clause and...