Safe City Strike Force must Comply with 4th Amendment Principles

Update August 18, 2013:   Because of being unconstitutionally deprived of my property, i.e., my photography studio and residence, I tried to apply for relocation compensation under Albuquerque Housing Ordinance. The incompetent agent from St. Martin’s Hospitality denied my timely and modest claim . . . the City of Albuquerque had ZERO enforcement or appeal . . . or counseling for tenants suddenly displaced and ESSENTIALLY HOMELESS.

True, the City did provide vouchers for hotel rooms, but in this case chose a flea-bag motel that had been a haven, for over a decade, for drug abusers, strippers, and wanderers who had fallen through the cracks of society . . . no home, no ID.

One tenant did avail himself of the voucher. On 05-05-2011 I discussed the motel and asked what his experience was. He said, “Disgusted,” and that “This chick was all lit up on drugs.” He stayed only one night.

Overview:  The Lowery case involves properties where drugs, drug use, and drug labs were found during lawful searches. (A link to the 71-page Lowery order for Summary Judgment is at the end of this blog. However, the PDF pages are slightly out of order, 1, 10, 11 – 19, 2, 3 . . .)

However, the ordinance, as drafted by City Attorney office employee Joe Martinez, allowed inspectors to go further than the Drug Lab Enforcement protocols and allow even one-time drug use evidence to deem the property ‘substandard’ and vacated immediately upon threat of misdemeanor trespass.

When questions arose if the law was being abused, or misinterpreted, inspectors were said to have been advised to list drug use evidence under unsanitary conditions.

The Safe City Strike Force vacated a large downtown Albuquerque office building under the ‘life safety’ provisions, refusing to allow the owner to make reasonable repairs to conditions existing from as long ago as World War II . . . and some committed without permit by a now seated Appellate Court Justice, the former building manager and LLC member.

The 1st District Federal Court has determined that the Albuquerque Safe City Strike Force has been violating property owner and tenant 4th Amendment Rights. The option to file an Appeal noted in the Notice & Order (of code violations and vacating of property) is insufficient Due Process. Following is a link to the March 31, 2011 Memorandum and Order written by Justice Browning. CIV 09-0457

In addition, a higher standard of exigency is demanded prior to warrantless evictions, i.e., immediate threat to life safety . . . not some supposed injury possible if certain events occur. Example: A light switch without a plate is a life safety concern, but only if someone actually sticks their finger in it.

AUGUST 22, 2013 MOTION FOR RECONSIDERATION IN THE 2ND JUDICIAL DISTRICT COURT

(Following the Motion for Reconsideration is the Brief I wrote for the Lowery case, a victory for victims of the Safe City Strike Force in the Federal Court)

 I.    COURT OMITTED REVIEW OF ‘UNCLEAN HANDS’

The court held that it will respect the discretion of the lower court in awarding reasonable court costs, especially in the light of alleged Plaintiff-Petitioner bad behavior.

However, because Defendant-Respondent had no affirmative defense or counterclaims, they worked at (by lying) accusing me of bad behavior, which was not true. They accused me of stalking, called the police on me, photographed me while at work in order to falsely accuse me of harassment, and called me a “sewer-sniffer” in a motion.

Therefore, it is vital the court reviews Plaintiff-Petitioner’s application of the ‘Unclean Hands Doctrine.’ Plaintiff-Petitioner argues he does have ‘clean hands,’ Defendant-Respondent does not.

[D]efenses cannot be successfully asserted, however, if the defendant comes to court with unclean hands. The Texas law on the doctrine of unclean hands is well developed. An equitable defense cannot be used to reward inequities nor to defeat justice. Westworth Village v. Mitchell, 414 S.W.2d 59, 60 (Tex.Civ.App.–Fort Worth 1967, writ ref’d n.r.e.). Under the doctrine of unclean hands, he who commits inequity is not entitled to equitable relief. Harris v. Sentry Title Co., 715 F.2d 941, 950 n. 6 (5th Cir.1983); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 410 (1960); Cross v. Chem-Air South, Inc., 648 S.W.2d 754, 756 (Tex.App.–San Antonio 1983) (quoting Howard v. Richeson, 13 Tex. 553 (1855)); Grohn v. Marquardt, 657 S.W.2d 851, 855 (Tex.App.–Beaumont 1983 writ ref. n.r.e.). 752 F.2d 178: Regional Properties, Inc., Regional Properties of New Mexico, Inc., Kingsley Creek Inc., Jerry D.shipley and Paul E. Thomes, Plaintiffs-appellees, v. Financial & Real Estate Consulting Co. and David Goldner,defendants-appellants (Fifth Circuit, 1985)

And from the U.S. Supreme Court, in Precision Instrument Mfg. Co. vs. Automotive Co., 324 U.S. 806 (1945)

The guiding doctrine in this case is the equitable maxim that “he who comes into equity must come with clean hands.” This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be “the abetter of iniquity.” Bein v. Heath, 6 How. 228, 47 U. S. 247. Thus, while “equity does not demand that its suitors shall have led blameless lives,” Loughran v. Loughran, 292 U. S. 216, 292 U. S. 229, as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue. Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 290 U. S. 245; Johnson v. Yellow Cab Transit Co., 321 U. S. 383, 321 U. S. 387; 2 Pomeroy, Equity Jurisprudence (5th Ed.) §§ 397-399.

This maxim necessarily gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant. It is “not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion.” Keystone Driller Co. v. General Excavator Co., supra,290 U. S. 245-246. Accordingly, one’s misconduct need not necessarily have been of such a nature as to be punishable as a crime or as to justify legal proceedings of any character. Any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim by the chancellor.

Moreover, where a suit in equity concerns the public interest, as well as the private interests of the litigants, this doctrine assumes even wider and more significant proportions. For if an equity court properly uses the maxim to withhold its assistance in such a case, it not only prevents a wrongdoer from enjoying the fruits of his transgression, but averts an injury to the public. The determination of when the maxim should be applied to bar this type of suit thus becomes of vital significance. See Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 314 U. S. 492-494.[emphasis added]

Unclean Hands — Not only was Defendant-Respondent in violation of city building and electrical safety codes (public record and in evidence), but committed fraud (meeting the elements of conversion)[1] on the level of a 2nd Degree Felony;[2] a white-collar crime seriously defrauding approximately a dozen of their tenants.[3]

The City Attorney’s Office knows of this incident of fraud, has seen the evidence, and referred Plaintiff-Petitioner to the State Attorneys General office; an AG criminal investigation has been requested.

Defrauded Displaced Tenants Provided $8400 War Chest — If this allegation is true and the evidence submitted in pre-trial production proof in Defendant-Respondent’s own words, signed by their own hand (Exhibit N-3, attached for the convenience of the court), then Defendant-Respondent entered this law suit with an $8400 cash ‘war chest’ to fight me with lawyers (plural) charging $400/hour . . . money stolen from a fiduciary fund belonging to tenants, including Plaintiff-Petitioner.

It is plain to see that Defendant-Respondent has no counterclaims or affirmative defense[4]; and the ‘Thirty-Day Notice to Vacate’ is not only prima facie evidence that deposits were not refunded, but intentionally retained in violation of both the Housing Code and the NMUORRA.[5] Therefore, Defendant-Respondent MUST NOT be unjustly enriched an additional $3500.

Rights of Defendant Vitiated — In addition, because the lease contract was broken by Defendant-Respondent and voided by the City of Albuquerque, then Defendant-Respondent MUST NOT benefit from said voided contract; their rights in contract and statute were vitiated by negligence and fraud.

 IX.       ‘PREVAIL,’ VERSUS  ‘DEFAULT’

While current New Mexico case law makes no distinction, there is a difference between winning by default judgment and ‘prevailing’ in court; that distinction is one being a matter of rules, while the other involves a hearing on the merits.

The general policy of the Rules of Civil procedure requires that an adjudication on the merits rather than technicalities of procedure and form shall determine the rights of litigants. Las Luminarias of N.M. Council of Blind v. Isengard, 92 N.M. 297, 5878 P.2d 444 (Ct. App. 1978)

1)                        This case never went to trial. Plaintiff-Petitioner became seriously ill three weeks prior to trial and missed a pre-trial hearing the day before trial.

Recently, this court in State v. Roybal, 2006-NMCA-043, ~ 13, 139 N.M. 341 346-347, 132 P.3d 598, 603-604, [held] that a district court can rule on a motion for reconsideration following a final ruling under the common law when such a motion is not authorized under Section 39-1-1.

In that case, the state filed a motion for reconsideration of the district court’s dismissal based on lack of venue following a jury trial. Id. at 346. This Court explained that Section 31-1-1 does not apply after a case has gone before a jury; however, even though there is no rule or statutory authority expressly authorizing a motion for reconsideration after a judgment has been entered, common law supports such motions. In fact, motions for reconsideration, “are a traditional and virtually unquestioned practice and serve judicial economy by permitting lower courts to correct possible errors and thus avoid time-consuming and potentially unnecessary appeals. Id. at 347

2)                        This was not for lack of diligence. The 10th Circuit Court of Appeals produced guidelines for Default Judgment due to Failure to Appear and illness as suffered in this case, making the party diminished in capacity to the extent to be unable to perceive how seriously he was affected or respond to his difficulties, is Good Cause.

3)                         Plaintiff-Petitioner explained to the court he was not functioning, having memory and performance issues due to fever and sleep-deprivation.

4)                        Buried under 85-pages of ‘last second’ Discovery mailed to Plaintiff-Petitioner and due nine days (9) before trial (intended to overly-burden Plaintiff). Within those 85-pages was a Notice of Third Deposition, which was overlooked. (See #’s 18 and 19 of Statement of Appellate Issues, ‘Summary of Proceedings.’)


[1] According to the recent case State of New Mexico vs. Ramona Bradford, the elements of conversion are cited from Uniform Jury Instructions 14-1641 NMRA, which in this case are: (1) a market value of over [$20,000]; (2) after being entrusted with the property, the target, with fraudulent intent to deprive the owners of the property, converted it to his own use; and (3) this happened in New Mexico on or about the [3rd day of March, 2011].

[2] Fraud — NMSA 1978, 30-16-6  Rental Property Fraud — NMSA 1978, Section 30-16-40  Conversion — Conversion occurs when a person who has been entrusted with another’s property uses it for his own purposes.

[3] The exact number is not known because Defendant-Respondent repeatedly ignored or lied in Discovery requests they list all tenants displaced by the City of Albuquerque   Safe City Strike Force vacate action, even after being compelled to comply by direct court order.

[4] New Mexico Uniform Owner Resident Relations Act  § 47-8 Deposits (2) -shall forfeit the right to assert any counterclaim in any action brought to recover that deposit;

[5] 18 Ibid supra (E) Fine for non-return of Deposit per NMUORRA $250.00 (plus legal costs)

[6] 14-3-5-16  Whenever the Mayor orders that all or a portion of a residential building be vacated pursuant to this code, the owner of such residential building (the “owner”) shall pay relocation costs for the residents of such residential building who reside at the residential building when the order to vacate is issued, subject to the provisions of subsection F of this section. This requirement shall be applicable when any condition which is the basis for the order to vacate is within the control of the owner and the owner or his agent knew or should have been known of the existence of the conditions that violate applicable le codes, statutes, ordinances or regulations prior to the order to vacate. Notice of such conditions by a governmental agency responsible for the enforcement of a building, residential unit, housing or other appropriate code served on the owner or the owner’s agent shall be proof that the owner knew of the conditions.

[7] 14-3-5-16 (L): “From the time that the City first notifies an owner of conditions that violate applicable codes, statutes, ordinances or regulations to the time that the relocation assistance payments are paid to eligible residents or the time the conditions cited are corrected, the owner shall not evict, harass or intimidate any resident for the purpose of avoiding or diminishing application of this ordinance.”

[8] 14-3-1-4 ROA 1994  RELOCATION COSTS means the expenses reasonably incurred by a resident displaced from a residential building pursuant to action of the City of Albuquerque. Relocation costs shall be two thousand dollars ($2000) per family unless the resident can demonstrate special circumstances that make the relocation cost a greater amount. If special circumstances are demonstrated, relocation costs may include the actual cost of physically moving to a residential building approved by the Relocation Agency (the “replacement unit”); costs of moving to a location outside of the immediate; any security/damage deposit required by the replacement unit owner which exceed the amount of the security/damage deposit recovered from the owner of the building the resident is moving from; utility deposits and hook up cost and the rent for the first month; costs of moving back to the residential building originally vacated after housing code compliance; and any other reasonable relocation costs.

BRIEF 

Kevin Lowery vs. City of Albuquerque, as applied to the February 24, 2011 City of Albuquerque Safe City Strike Force closing of Tower Plaza

 No.  CIV 09-0457 KB/WDS

 Re:       If a missing flight of stairs from the 2nd floor to the lobby is sufficient exigency for a warrantless vacating of a building.

 Holding of Lowery:   

“The primary issue is whether an objective observer would believe that the violation for which the Plaintiff’s were cited posed an immediate threat to the lives or safety of the occupants, the public or the officers such that an exception to the Fourth Amendment prohibition against warrantless searches and seizures was justified.”

The City of Albuquerque Safe City Strike Force is part of the Nuisance Abatement team within the City Attorney’s Office. Under the law, a property owner is allowed reasonable time to abate the nuisance before the City is permitted to seize the property.

In the case of Tower Plaza, the Strike Force declared the missing lobby staircase and ‘tripping hazards’ across the roof egress rose to the level of ‘exigency’ required for immediate vacating and seizure of the property without a warrant or due process.

Yet, in the official Notice & Order, an Appeal filed in a reasonable time ‘stayed enforcement’ of that very Order to Vacate, negating the claim of exigency.

In addition, Lowery followed Freeman v. City of Dallas, 242 F.3d at 654, that:

“The ultimate test of reasonableness is fulfilled in this case by the City’s adherence to its ordinances and procedures as a prelude to ordering the landowners to abate their nuisance structures. The Supreme Court originally extended an administrative warrant requirement to civil investigations because “the basic purpose of [the Fourth] Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara, 387 U.S. at 528 (emphasis added). . . . The City’s . . . municipal habitation code . . . is sufficiently hedged about by published standards, quasi-judicial administrative proceedings, and flexible remedies that it is not arbitrary. In the context of reviewing civil administrative and regulatory enforcement of laws enacted pursuant to the traditional police power, Fourth Amendment reasonableness means non-arbitrariness.”

In Lowery, the City claimed their Notice & Order provided an opportunity for landowners to abate their nuisance structures through Appeal, thus staying enforcement of the Order to vacate.

The question in Tower Plaza versus the City of Albuquerque is if the Appeal in the Notice & Order was arbitrary.

Arbitrary means based on whim or individual will, rather than legal process.

ar·bi·trar·y/ˈärbiˌtrerē/Adjective

1. Based on random choice or personal whim, rather than any reason or system.

2. (of power or a ruling body) Unrestrained and autocratic in the use of authority.

In the Notice & Order, Plaintiff argued, “that the appeal process itself demonstrates that no true exigency exists, because it allows residents back into a home even when previously it was deemed too dangerous to life and safety for the residents to stay there.” Lowery, p. 39.

This very Appeal provision stayed the Fire Marshal’s orders, much to his chagrin.

However, in the administrative hearing, the attorney for Tower Plaza did not argue the exigency issue, or the reasonableness of addressing the Fire Marshal’s concerns by replacing the stair, missing for half a century, and cleaning up ‘tripping hazards’ on the roof egress.

Nevertheless, by not having an immediate Hearing, i.e., Due Process, Tower Plaza was effectively ‘seized’ and vacated. The tenants had moved out; vacating and seizure of Tower Plaza was a moot point.

Exigency for Warrantless Seizure; or not?

The Albuquerque Fire Marshal will claim exigency based on the code violations for fire egress. In the very words of the assistant Fire Marshal, “We can’t be liable for your deaths in case of a fire.” To me, that sounded almost like a threat of arson.

To a landowner, not at fault for the missing stairway from the 2nd floor to the lobby, reasonable accommodation to abate the nuisance would involve replacing the stairs in a matter of weeks, and cleaning up the ‘tripping hazards’ across the roof egress.

With ‘fire watchers’ and the enhanced fire alarm, the ‘exigency’ would be abated. However, the Fire Marshal insisted on vacating the building, plus $8.00 per hour ‘fire watchers on 24-hour watch billed to the landowner at $1000 per day.

However, according to Lowery, the arbitrary nature of the Appeal provision was a Fourth Amendment violation per se.

[Lowery, p. 69]    “The length of time that they would be prohibited entry depended on whether and how quickly they filed an appeal, or hired a firm to complete the testing and remediation, In the absence of either of these actions, the Plaintiffs would be barred from entry indefinitely. The holding of Illinois v. McArthur rested on an assessment of the length of the seizure vis a vis the police objectives the seizure ceased as soon as the objective of obtaining a warrant was achieved. Here, there is a disconnect between the putative objective of the order to vacate – [p. 70] to protect inhabitants from the threat . . . and the provision of the ordinance allowing re-entry upon appeal, indicating that the length of the seizure is not “jealously and carefully drawn” in accord with the objective. United States v. Aquino, 836 F.2s at 1271.

The Court concludes that the Defendants have not demonstrated that there is a genuine issue of material fact whether an objective observer would find that the seizure of the entire home for an indefinite period was sufficiently tailored in scope and duration to protect the interests of the residents under the Fourth Amendment.”

Conclusion:

Based on Lowery’s analysis of Fourth Amendment rights, the City of Albuquerque Safe City Strike Force arbitrarily seized Tower Plaza in an act of Inverse Condemnation.

The landowner was not responsible for the half century of code violations, existing even as far back as when the City of Albuquerque Police Department had offices in Tower Plaza.

Heightened awareness through alarm systems, a reasonably priced ‘fire watch, or a temporary vacating during reasonable abatement of fire egress issues raised by the Fire Marshal would have protected the owner’s Fourth Amendment rights.

In addition, International Fire Code forbids a government agency from forcing modern fire code on stairs in an existing structure, if the stairs are fireproof and meet basic load test.

There is no situation in which the IFC would require the stairs in an existing building to be replaced. The only situation in which stair design would become an issue is in a complete rehab, but even in that situation the IFC provisions would not mandate that the stairs be replaced. (NMHC National Multi Housing Council, 2009 Building Codes Update p. 5)

In the alternative, if the Fire Marshal is supported in a court of law that the fire code violations were not correctable without essentially demolishing part of the structure, then the City of Albuquerque is liable for just compensation of the owners for ‘taking’ the building.

Either way, by not providing Fourth Amendment protection to Tower Plaza for reasonable time to abate code violations, the City of Albuquerque, not Tower Plaza, is liable.

Appendix

Inverse Condemnation – An Action brought by a property owner for compensation from a governmental entity that has taken the owner’s property without bringing formal condemnation proceedings. See also ‘condemnation blight.’ Black’s Law Dictionary

New Mexico Constitution

Art. II, § 20   Eminent Domain – Private property shall not be taken or damaged for public use without just compensation.

§ 42A-1-29 NMSA 1978 – Property taken or damaged without compensation or condemnation proceedings; right of action by condemnee

A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest, to the date such just compensation is made, in an action to be brought under and governed by the Rules of Civil Procedure for the District Courts of this state. Actions under this section shall be brought in the county where the land or any portion thereof is located.

§ 42-1-23 NMSA 1978 Repealed by Laws 1981, ch. 125, § 62; recompiled by Laws 1981, ch. 125, § 60

§ 42-3-2. Definitions.

As used in the Relocation Assistance Act:

  1. A.    “agency” means any department, agency or instrumentality of:

3)       a political subdivision of the state: or

4)       any combination of the federal government, the state or a political subdivision of the state . . .

§ 42-3-5 NMSA 1978 – Relocation Payments.

  1. A.    Whenever a program or project undertaken by an agency will result in the displacement of any person, the displacing agency shall provide for payment to the displaced person for:

§ 42-3-10. Compensation for expenses of inverse condemnation.

A court rendering a judgment for the plaintiff in a proceeding brought under Section 42-A-29 NMSA 1978 awarding compensation for the actual physical taking of the property by the displacing agency, or the agency effecting a settlement of any such proceeding, shall, when required by federal law or by a federal grant contract governing the project or program, determine and award or allow to the plaintiff as a part of the judgment or settlement a sum which will reimburse the plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees actually incurred because of the proceeding.

§ 13-709. Partial taking of leasehold; damages to tenant.

At the time of the taking, the tenant had a lease on the property for a term ending ___________.

The tenant is entitled to recover money damages for the value of the leasehold loss, which you find to have resulted from the taking. You shall determine any loss as follows: from the fair rental value of the lease property immediately before the taking, subtract the fair rental value of the remaining lease property immediately after the taking. [From the resulting loss of the fair rental value, subtract the reduction in rent provided for in the condemnation clause of the lease.]

[The tenant is also entitled to the value of the loss resulting from the taking, or devaluation of the fixtures and improvements which were owned by the tenant.]

Damages for leasehold loss should be discounted to present value as of the date of taking.

Grandfather Clause

It is uncertain which statutes are controlling the ‘red-tagging’ of the Tower Plaza units, or what codes are exempt under Grandfather Clauses, implied or omitted.

KRQE Interview with City official T.J. Wilham

“City spokesman T.J. Wilham said the city had no choice but to order the tenants of the top floors to sleep somewhere else Thursday night.“If a fire were to break out on the second floor, people on floors three to seven it’s highly likely they would perish in the fire,” Wilham said. “Their odds of survival are slim.

Wilham said tenants would use an outside fire escape to get to a bottom roof. He said the ladder that should get the tenant down safely is not safe at all.”

http://www.krqe.com/dpp/news/business/city%3A-apartment-complex-is-a-death-trap

Resident Statement on Safety of Fire Escape

“In the Summer, I use the fire escape often to maintain the East swamp cooler. I am 310 lbs, and the stairs are solid and the railings make me feel more than secure in my descents and ascents. I once accessed the second roof to retrieve my errant cat, which was simple enough. However, in the thirteen years I have occupied my art studio on the 5th floor, I have never needed to use the ladder to the stairs to ground level. This is the most solidly constructed and fire-proof building I have ever seen. It is concrete, steel, and the walls are plastered with Structolite over wire mesh with fired tile behind it. I’ve never felt safer in any building, regardless of claims of Mr. Wilham to the contrary.

This building is in plain view of Building Code & Safety at Maya Plaza, less than a block away. I knew Mr. Steele, the former head of Building Code & Safety and he visited Tower Plaza personally, as did Elevator Inspector Vanderslice.

In addition, this building was once home to city offices, including police detectives. I know this from old desks I found and refinished. I found detective police reports in them.”

Case Law

In an inverse condemnation proceeding, lost profits may be recovered when they are the best measure of the value of the lost use and enjoyment of condemned land;  Primetime Hospitality, Inc. v. City of Albuquerque, 146 N.M. 1, 206 P.3d 112

Property owners were entitled to a trial on the merits regarding their claim of inverse condemnation pursuant to former 22-9-22, 1953 Comp. (now 42A-1-29 NMSA 1978), as to the design, construction, and maintenance of a highway on a newly established right-of-way because no governmental immunity attached to that claim; further, N.M. Const. art. II, § 20 guaranteed just compensation for takings. Wheeler v. Bd. Of County Comm’rs, 74, N.M. 165, 391 P.2d 664 (1964)

McClure v. Town of Mesilla, 93 N.M. 447, 601 P.2d 80 (Ct App 1979).

Fact pattern – Town installed storm drain that resulted in erosion damage to owner’s property. Tort Claims Act barred negligence, but inverse condemnation is NOT a common law tort, but a remedy under NM Stat Ann § 41-1-23.

Tower Plaza v. City of Albuquerque – Safe City Strike Force is a government program similar to maintenance of storm drainage. The result of the City’s closure and ‘red-tagging’ of Tower Plaza, whether proved justified or not, is essentially a ‘takings.’

Takhar v. Town of Taos, 135 N.M. 741, 93 P.3d 762 (Ct App 2004)

Fact pattern – Town of Taos halted completion of Plaintiff’s apartment complex, requiring Plaintiff to obtain a special use permit. Plaintiff sought and was denied permit. Ct App reversed District Court’s dismissal.

Tower Plaza v. City of Albuquerque – Tower Plaza has enjoyed tacit and continuing approval for operating as a mixed-use rental property for approximately ten years.

Tower Plaza, LLC was purchased by Plaintiff after improvements were made by the previous landlord to the fire alarm system, and elevator. For ten years, Plaintiff continued to make improvements per Fire Marshall’s orders until the Fire Marshall, under the Safe City Strike Force, decided the Tower Plaza units were a “Death Trap” and red-tagged units 3, 4, 5, 6, and 7 . . . causing loss of use and enjoyment of property, and losses amounting to bankrupting the Plaintiff.

Defendant ‘crowed’ their condemnation of the Tower units on Channel 13 (KRQE), which amounts to Slander of Title.

Safe City Strike Force condemnation is a taking, as a rightful administrative practice under color of law, vis-à-vis Fire and Building code enforcement, or issuing of permits.

Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (S. Ct. Ark. 1990)

Fact pattern – See the following research by Arkansas’ Atty Gen. Office.

From a letter to a Representative Linda Chesterfield from Dustin McDaniel, Attorney General:

Your question suggests that your constituents feel that the Commission may have infringed on their rights in several respects: first, by effecting a constructive condemnation of the property at issue by reducing its value to the current owners by threatening a future exercise of the Commission’s power of eminent domain; and, secondly, by intentionally interfering with your constituents’ contractual relations or business expectancy with respect to the property. As regards the concept of inverse condemnation, the Arkansas Supreme Court has offered the following summary in Robinson v. City of Ashdown, 301 Ark. 226, 230, 783 S.W.2d 53 (1990):

As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, 8.1[4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.

As the court further observed: When a municipality acts in a manner which substantially diminishes the value of a landowner’ land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action.

Id. at 232; accord City of Fayetteville v. Stanberry, 305 Ark. 210, 215, 807 S.W.2d 26 (1991).

Most directly on point with respect to your question is National By-Products v. City of Little Rock, 323 Ark. 619, 916 S.W.2d 745 (1996), in which the Arkansas Supreme Court rejected a claim of inverse condemnation based upon an announcement by the Little Rock Regional Airport Commission (the “regional Commission”) that it intended to condemn certain property in order to extend a runway. In the course of rendering its opinion that the Regional Commission’s action did not violate U.S. Const. amend. 5 or Ark. Const. art. 2, § 22, which prohibit a government’s “taking” of property without just compensation, the court observed:

At least one commentator has characterized the issue presented in this case as one involving “condemnation blight,” which is defined as “the debilitating effect upon value of a threatened, imminent or potential condemnation.” 4 J. Sackman, Nichols on Eminent Domain, § 12B.17[6] (Rev. 3d ed. 1995).

323 Ark. at 624-25. Citing Danforth v. United States, 308 U.S. 271 (1939), the court offered the following analysis:

The United States Supreme Court held that, in the context of condemnation proceedings, a taking does not occur until compensation is determined and paid:

A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership.[1] They cannot be considered as a “taking” in the constitutional sense.

482 U.S. 271 at 285. See also Agins v. City of Tiburon, 447 U.S. 255 (1980) (a municipality’s good-faith planning activities[2], which did not result in successful prosecution of an eminent domain claim, did not so burden landowners’ enjoyment of their property as to constitute a taking). 323 Ark. at 625-26.

In rejecting the appellant’s claim, the court in National By-Products remarked:

We followed the rationale of the Danforth decision in Hood v. Chadick, County Judge, 272 Ark. 444, 615 S.W.2d 357 (1981); see also 4 J. Sackman, Nichols on Eminent Domain § 12B.17[6] (Rev. 3d ed. 1995). In that case, Hood appealed from the trial court’s dismissal of his case against Jefferson County for damages he alleged were caused by the county’s threat to take his property. Hood owned a building registered as a historical landmark located across the street from the Jefferson County Courthouse. After the courthouse burned in 1976, a commission was appointed to discuss plans for rebuilding. The commission’s members considered plans to take Hood’s property for parking and landscaping. The original plan, approved by the City Council in 1978, was withdrawn from a November 1978 election. A subsequent plan was developed and referred to the people in a July 1979 election. The plan was defeated. Subsequently, the county dismissed its condemnation suit against Hood, which had been filed in response to Hood’s suit to enjoin the county judge from taking his property and for damages for loss of rentals. In affirming the trial court’s dismissal of Hood’s case, we observed that the county never took possession or even entered upon Hood’s property and concluded that “[n]o damages are allowable for a mere ‘threat to condemn.’” Id. at 447; see also Watson v. Harris, 214 Ark. 349, 216 S.W.2d 784 (1949); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955) (holding that the actual taking or damage of lands for public use is what must be compensated under the state and federal constitutions, not a plan to take or damage the land).

323 Ark. at 626-27. Although the court observed that the result might have been different if the Commission had acted in bad faith in dealing with the landowner, it found no evidence of intent to cause injury. Id. at 627-28.

In my opinion, a court reviewing the facts giving rise to your question would apply the standard set forth in National By-Products. As noted at the outset of this opinion, I am not a finder of fact and consequently cannot determine whether the Commission in this case acted in good faith or not. However, assuming no evidence of bad faith exists, I believe a reviewing court would reject any action alleging inverse condemnation.

With respect to your suggestion that the Commission may have tortiously interfered with your constituents’ contractual relationships or business expectancies, I believe a reviewing court would apply the following standard, which the Arkansas Supreme Court set forth in United Bilt Homes v. Sampson, 310 Ark. 47, 51, 832 S.W.2d 502 (1992):

Underlying the tort is the premise that a person has a right to pursue valid contractual and business expectancies unmolested by the wrongful and officious intermeddling of a third party.[3] Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981); Mason v. Funderburk,[ 247 Ark. 521, 521, 446 S.W.2d 543 (1969)], supra. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.[4] W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 820 S.W.2d 440 (1991); Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989).

As the recited elements of this tort suggest, any inquiry into a defendant’s conduct will be intensely factual and, as such, is beyond my ability and authority to address.

Question 2: If not, will the Commission be subject to civil liability?

This question may well be moot in light of my conclusion that the Commission may announce its plans regarding future condemnations so long as it does not do so with the express intention of thereby causing injury to affected property owners. However, I will note that, as a general proposition, Commission members enjoy limited immunity pursuant to A.C.A. § 21-9-301 (Repl. 2004), which provides:

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

In Ark. Op. Att’y Gen. No. 1987-299, one of my predecessors opined that this limited immunity applies to members of an airport commission. I concur in this conclusion. However, as noted in my response to your previous question, Commission members may face liability for conduct that constitutes an intentional tort.[5] I am neither situated nor authorized to opine whether any such misconduct occurred in this case.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

http://ag.arkansas.gov/opinions/docs/2007-195.html

Notes on Eminent Domain Law

New Mexico Eminent Domain Laws can be found in Chapter 42A of Statutes of New Mexico. Pursuant to N.M. Stat. Ann. § 42A-1-3, at any time before or after commencement of a condemnation action, the parties may agree to and carry out a compromise or settlement as to any matter, including all or any part of the compensation or other relief.

N.M. Stat. Ann. § 42A-1-4 provides that a condemnor should make reasonable and diligent efforts to acquire property by negotiation. Unless prohibited by federal law, if the condemnor or condemnee have prepared appraisals for the property, s/he should make such appraisals available to the other party during the negotiation period.

If the parties are unable to negotiate a settlement, the condemnee may, within twenty-five days after written notice by the condemnor of its intent to file a condemnation action in district court, give written notice to the condemnor requesting an appraisal to determine the amount that would constitute just compensation for the taking of the condemnee’s property[i].

Pursuant to N.M. Stat. Ann. § 42A-1-6, an action to condemn property may not be maintained over timely objection by the condemnee unless the condemnor made a good faith effort to acquire the property by purchase before commencing the action.

N.M. Stat. Ann. § 42A-1-8 provides that a condemnor and its agents and employees may enter upon the real property and make surveys, examinations, photographs, tests, soundings, borings and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to take for public use.

After notice by the condemnor to the condemnee, the court should make its order permitting and describing the purpose of the entry and setting forth a description of the property and the nature and scope of activities the court determines are reasonably necessary to accomplish the purposes of the proposed taking and authorized to be made upon the property[ii].

An order permitting entry should include a determination by the court of the probable amount that will fairly compensate the condemnee and any other person in actual physical occupancy of the property for damages, for physical injury to the property and for substantial interference with possession or use of the property found likely to be caused by the entry and activities authorized by the order[iii].

Additionally, the order may require the condemnor to deposit with the court before entry that amount or a surety bond in that amount from a surety acceptable to the court.

If a deposit or surety bond is required or the amount required to be deposited or the amount of the surety bond is increased by an order of modification, the court should specify the time within which the required amount must be deposited or the surety bond increased[iv].

The court should also direct that any further entry or specified activities or studies under the order as modified be stayed until the required deposit or increase in the surety bond has been made.

A condemnor is liable to the condemnee and to the person in actual physical occupancy of the property for physical injury to and for substantial interference with possession or use of property caused by its entry and activities upon the property[v].  In an action or other proceeding for recovery of damages, the claimant is allowed his/her reasonable costs. In addition, the court may award the claimant his/her litigation expenses.

N.M. Stat. Ann. § 42A-1-17 provides that if a property is sought to be appropriated for public use by a person authorized to acquire property pursuant to the laws of New Mexico, and the condemnor and the condemnee cannot agree to the transfer of the property or interest in question, the condemnor may file a petition with the court of the county where the property or any part thereof lies.  However, the petition should not include any property which is not contiguous to property to be condemned in the county of the court’s jurisdiction.

If appraisers have not been appointed and if the court is satisfied that proper notice of the petition has been given, it should appoint up to three disinterested commissioners who are residents of the county in which the property or a part thereof is situated and who are familiar with the property values in the area of the proposed taking[vi].

The commissioners should assess the damages which the condemnees may severally sustain by reason of the proposed taking and make a report to the clerk of the court within thirty days setting forth the amount of the damages.

Upon the filing of the report of the commissioners, the clerk of the court should notify the attorneys of record for all of the parties to such proceeding who have entered appearances or, if not represented by attorney, all parties who have entered appearances at their respective post-office addresses of record, of the filing of the report[vii].

Within twenty days after the filing of the petition if an appraisal has been prepared or after the final confirmation of the report of the commissioners, a party may demand trial of any issues remaining in the cause.  The cause should be tried de novo, and unless waived, the parties should be entitled to a trial by jury[viii].

N.M. Stat. Ann. § 42A-1-24 provides that whenever just compensation is ascertained and awarded in such proceedings and established by judgment, the judgment should include as a part of the just compensation awarded interest at the rate of ten percent a year upon the unpaid portion of the compensation awarded from the date the petition is filed to the date of payment or the date when the proceedings are finally abandoned.

A person authorized to exercise the right of eminent domain who has taken or damaged or who may take or damage any property for public use without making just compensation or without instituting and prosecuting to final judgment in a court of competent jurisdiction any proceeding for condemnation is liable to the condemnee, or any subsequent grantee thereof, for the value thereof or the damage thereto at the time the property is or was taken or damaged, with ten percent per year interest[ix].

Pursuant to N.M. Stat. Ann. § 42A-1-33, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, the easement is extinguished and the possession of the property reverts to the owner or his/her successor in interest of the fee free from any rights in the condemnor.

[i] N.M. Stat. Ann. § 42A-1-5.

[ii] N.M. Stat. Ann. § 42A-1-9.

[iii] N.M. Stat. Ann. § 42A-1-10.

[iv] N.M. Stat. Ann. § 42A-1-11.

[v] N.M. Stat. Ann. § 42A-1-12.

[vi] N.M. Stat. Ann. § 42A-1-19.

[vii] N.M. Stat. Ann. § 42A-1-20.

[viii] N.M. Stat. Ann. § 42A-1-21.

[ix] N.M. Stat. Ann. § 42A-1-29.


[1] Tower Plaza entered into the purchase in good faith, knowing that the Fire Marshall had insisted on code compliance and approved completion from inspections prior to that purchase. The Fire Marshall continued to request code compliance over the course of ten years, which Tower Plaza performed without hesitation. The Fire Marshall, after ten years, has now changed his mind, condemning the property as Substandard and Barred Occupancy, without formal notice of specific violations, or a hearing challenging that decision. The sudden barring of contractual residency and collection of rents, plus burdensome expenses for security and accommodation of displaced residents is a de facto condemnation and takings. The imminent bankruptcy of Tower Plaza, LLC, and the associated Kachina Properties, is harm based on loss of property to the banks via default, and eventual formal condemnation by the City.

[2] Fact Pattern:  The ‘good faith’ element favoring the City is the ‘health and safety’ of Tower Plaza residents, based on the ability and practices of the Fire Dept. in rescue attempts.

[3] Tower Plaza has been effectively ended as a business collecting rents, plus has been burdened with costly ‘fire watchers’ in a building that has never seen a fire, and is built to levels earning it status of a bomb shelter. This has occurred by the City Safety Strike Force without notice and without opportunity to appeal in a formal hearing setting with challenges from expert witnesses.

[4] The sudden cessation of occupancy and rents was caused by the City Strike Force without notice, by entering the building premises posting notices threatening tenants with Misdemeanor citations.

[5] The tortuous interference was intentional for purposes of public safety, however, unproven as imminent or a real threat. Ten years of co-operation with the Fire Marshall belie any negligence on the part of the Plaintiff. The acts of the City were capricious, and possibly a reaction to recent apartment fires elsewhere in the city.

Here is a 71-page PDF of the Memorandum and Order.        Click on Link >>>>  Lowery_09-0457

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