CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS; INVALID REGULATION: Where government restricts the use of property without valid zoning authority, but the action does not totally deprive the landowner of all beneficial use of the property, there is no taking under the U.S. Constitution and no "taking or damaging" under the New Mexico state constitution. Estate and Heirs of Sanchez v. County of Bernalillo, 902 P.2d 550 (N.M. 1995).

Landowner was denied a permit to develop a mobile home park under a county zoning ordinance. Later, it was established that the county lacked the authority to zone the landowner's property. Landowner conceded that it had not lost all or substantially all beneficial use of the property, but alleged that it had suffered damages by being unable to develop the property as it desired. Landowner brought an action for a temporary taking for the lost value of its property during the period it was unable to obtain a permit.

Held: No damages payable. The application of a government regulation not reasonably related to a proper purpose did not of itself give rise to a takings claim. Further, landowners are not entitled to damages under the state constitutional provision protecting landowners from a "taking or damaging" of property because the harm suffered by the petitioners as a result of government action was of the same type as the harm suffered by the general public. In this case, although the petitioners may have suffered a greater degree of harm by the application of the zoning regulation but they did not suffer any special harm.

Comment 1: The court cites virtually no authority and undertakes no discussion of applicable Supreme Court precedents in this area. Surely there is more to say about this issue. Both the federal and the state constitutional interpretations are interesting. Is the court insulating state and local government from all damages caused by unlawful land use activities that fall short of complete deprivation of use? This seems to by the outcome of the case, but perhaps the landowners will find other remedies under state or federal law that do not fall under the rubric of "takings."

Comment 2: On the state law issue, the court's position may be a bit overstated, but it would seem unfortunate if a party could become "specially injured" simply by filing a permit request when it identifies an erroneous government ordinance. On the other hand, aren't there circumstances in which a landowner would have a legitimate claim to injury as a consequence of the application of adverse zoning rules, even though they have broad application? If, for instance, a landlord has a lease for certain purposes, and the government adopts an invalid ordinance prohibiting those purposes, costing the landlord the benefits of the lease, the court would appear still to find no special injury, but the editor wonders . . .

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