                                                  I attest to the accuracy and
                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'04- 09:33:36 2014.09.30
Certiorari Granted, August 29, 2014, No. 34,834

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-093

Filing Date: June 30, 2014

Docket No. 30,930

SANTA FE PACIFIC TRUST, INC.,
a Florida corporation,

       Plaintiff-Appellant,

v.

CITY OF ALBUQUERQUE, a municipal
corporation,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Chappell Law Firm, P.A.
Bill Chappell, Jr.
Michael Hoeferkamp
Albuquerque, NM

for Appellant

City of Albuquerque
David J. Tourek, City Attorney
Robert I. Waldman, Assistant City Attorney
Albuquerque, NM

Lorenz Law
Alice T. Lorenz
Albuquerque, NM
Campbell & Wells, P.A.
John S. Campbell
Albuquerque, NM


                                             1
for Appellee


Jones, Snead, Wertheim & Clifford, P.A.
Carol A. Clifford
Santa Fe, NM

for tw telecom of N.M., LLC




                                          2
                                        OPINION

FRY, Judge.

{1}     Plaintiff Santa Fe Pacific Trust (SFPT) owned property in downtown Albuquerque,
New Mexico (the Property), which two mayors targeted as a potential location for an events
arena. Because of considerable publicity surrounding the proposed condemnation, which
never came to fruition, and because of various concrete steps taken by the administration of
the City of Albuquerque (the City) to see the arena project through, SFPT claims that it lost
potential sales and leases of the Property. It filed a complaint against the City asserting,
among other things, claims for inverse condemnation and deprivation of due process.

{2}     We affirm summary judgment entered in favor of the City on these claims. We hold
that SFPT failed to demonstrate entitlement to an inverse condemnation claim under federal
law, which provides that “[m]ere fluctuations in value during the process of governmental
decision[-]making . . . are incidents of ownership [that] cannot be considered as a taking in
the constitutional sense.” Agins v. City of Tiburon, 447 U.S. 255, 263 n.9 (1980) (internal
quotation marks and citation omitted), abrogated on other grounds by Lingle v. Chevron
U.S.A., Inc., 544 U.S. 528 (2005). We further adopt a means for assessing whether pre-
condemnation planning and publicity can constitute an unconstitutional “taking” under our
state laws regarding inverse condemnation and conclude that, while SFPT established the
City’s present concrete intention to condemn, SFPT failed to show that the City took any
action that substantially interfered with the use and enjoyment of the Property. We also
conclude that SFPT failed to establish its substantive due process claim.

BACKGROUND

Factual Background

{3}     Although SFPT maintains that there are disputed facts regarding the City’s intent
during the time leading up to this lawsuit, most of the operative facts are undisputed. SFPT
purchased the Property in 1997 and, in 2000, it began a business known as Bigbyte.cc on the
Property for disaster recovery, data storage, and co-location. SFPT and Bigbyte.cc are
related entities, with the same shareholders, directors, and corporate officers. Beginning in
2003, Bigbyte.cc leased approximately 66.26 percent of the leasable space in the building
on the Property.

{4}     At about this same time, in articles published in late 1998 and early 1999, Mayor Jim
Baca began to publicly express interest in developing a downtown arena. In 1999, Mayor
Baca informed SFPT’s principals that the Property was the best site for an arena project and
that the Property would be taken for that purpose.

{5}    In May 2000, the City adopted the 2010 Downtown Development Plan that included
the goal of constructing an events arena on a proposed site that included the Property.

                                             3
Before anything definitive was done in furtherance of this goal, in September 2003, SFPT
and the City entered into an agreement (Exchange Agreement), which recited that the City
wanted to obtain title to a parcel owned by SFPT (SFPT tract) on the southeast corner of the
Property and that SFPT wanted to obtain title to a parcel owned by the City (City tract) on
the northeast corner of the Property. The Exchange Agreement provided that SFPT would
grant the City a permanent roadway easement covering the SFPT tract and that the parties
would then exchange title to their respective tracts. The Exchange Agreement contemplated
that the City and SFPT would share the cost of certain improvements to the City tract before
the exchange would take place. SFPT conveyed the easement to the City, but the exchange
of title did not take place. The Exchange Agreement did not say anything about the main
portion of the Property, which contained the building that housed Bigbyte.cc and office
space that SFPT wanted to lease to other commercial entities. Therefore, in this Opinion,
we use the term “the Property” to denote the property owned by SFPT that did not include
either the SFPT tract or the City tract.

{6}     In January 2004, the City administration began a process to determine the feasibility
of its goal to construct the arena, issued a request for information (RFI) to interested
developers, and publicly announced the proposed project. Arena Management and
Construction, LTD (AMC) responded to the RFI and proposed financing for the arena
without the need for public guarantee or subsidy. The city council approved a memorandum
of understanding (MOU) with AMC regarding AMC’s financing commitment. The City
then conducted preliminary negotiations with SFPT to determine whether the Property could
be acquired by purchase agreement.

{7}     Ultimately, however, AMC could not provide a commitment for the financing
proposed by the MOU. The City administration, as a result of its negotiations with SFPT,
then submitted to the city council a proposed purchase agreement and an option agreement
to buy the Property. The city council did not approve either agreement.

{8}    The City administration in September 2006 issued a request for proposal (RFP) on
the arena project that included the Property, and ABQ Downtown Development Team
(ADDT) submitted a proposal. The City administration recommended that ADDT be
awarded a contract under the RFP, but the city council did not approve the recommendation.

{9}      The City administration continued to explore the possibility of purchasing the
Property from SFPT. In 2008, ADDT submitted a proposal for the arena that included an
alternate location at Central and Broadway, and the city council approved the proposal that
ADDT submit a viability assessment study for the arena at the Central and Broadway
location. As of the date the City filed its motion for summary judgment in this case, the
arena project continued to be a planning goal of the City administration, and the proposed
site for the arena included the alternate Central and Broadway location.

{10} From 1999 through 2007, local newspapers published many articles about the
proposed arena project, and several articles mentioned the Property as a potential site for the

                                              4
arena. One article labeled a diagram of the Property with the phrase, “To be condemned,”
and another article labeled a photo of the Property with “slated for condemnation.” Many
City-generated documents also showed potential placement of the arena on the Property and
expressed the City’s desire to acquire the Property. Mayor Baca’s successor, Mayor Martin
Chávez, held press conferences at which he indicated that the Property was the potential
location for the arena project. In January 2004, Mayor Chávez announced that construction
on the arena was expected to begin in late spring. Subsequent announcements indicated the
imminent beginning of construction. However, the city council never approved the
acquisition or condemnation of the Property or appropriated funding for construction of an
arena.

{11} SFPT submitted evidence that during this period of time from 2004 to 2008, several
entities considered buying or leasing part or all of the Property and then declined to do so.
While some potential buyers and tenants indicated that they lost interest in the Property
because of the City’s threatened condemnation, others had different reasons for declining
to buy or lease the premises or they did not state why they opted not to buy or lease. For
whatever reason, it is undisputed that as of August 2009, SFPT had been unable to lease the
third floor of the Property despite there being interested parties. Also during that time, SFPT
would have operated at a loss if not for leases to related companies, such as Bigbyte.cc.

Proceedings

{12} SFPT filed suit against the City in October 2006 and asserted claims for inverse
condemnation (alleging that the City’s publicizing its plan to condemn the Property caused
the loss of tenant leases), deprivation of due process (alleging deprivation of tenant leases
without due process), tortious interference with contractual relations (related to loss of tenant
leases), and breach of contract (related to the Exchange Agreement).

{13} On the City’s motion, which SFPT did not oppose, the district court dismissed
SFPT’s claim of tortious interference. The City then filed a motion for summary judgment
on SFPT’s claims for inverse condemnation and deprivation of due process. While that
motion was pending, the City filed a condemnation complaint against SFPT seeking to
acquire SFPT’s interest in the Exchange Agreement and in both the SFPT tract and the City
tract that were the subjects of the Exchange Agreement. The district court consolidated
SFPT’s action against the City with the City’s action against SFPT.

{14} The district court entered summary judgment in favor of the City on SFPT’s claims
of inverse condemnation and deprivation of due process. This left unresolved SFPT’s claim
against the City for breach of the Exchange Agreement and the City’s condemnation claim
(related to the exchange property) against SFPT. The parties ultimately settled these
outstanding claims, and the district court dismissed them.

{15} SFPT appeals the summary judgment in favor of the City and the district court’s
order quashing subpeonas issued to two non-parties, TW Telecom of New Mexico, LLC, and

                                               5
Prism Technologies, LLC. Because we affirm the district court’s summary judgment on
SFPT’s claims for inverse condemnation and deprivation of due process, we need not
address the order quashing the subpoenas. This is because the information sought by the
subpoenas related to potential lessees lost as a result of the City’s pre-condemnation
planning and publicity, and we conclude that the loss of lessees does not constitute damage
to or taking of property under the circumstances of this case.

DISCUSSION

A.     Summary Judgment

{16} We review an order granting summary judgment de novo. Self v. United Parcel
Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “Summary judgment is
appropriate where there are no genuine issues of material fact and the movant is entitled to
judgment as a matter of law.” Id. In addition, whether the facts are enough to constitute a
taking is a question of law. 11 Eugene McQuillin, The Law of Municipal Corporations, §
32.26 at 521-23 (2010).

{17} In its motion for summary judgment, the City argued that its activities with respect
to the Property amounted to nothing more than planning and publicity surrounding the
proposed arena project and that planning and publicity do not constitute a “taking” under
either New Mexico or federal condemnation law. In response to the motion, SFPT generally
argued that New Mexico law recognizes that damage to property—without a physical
invasion of property—can give rise to a claim for inverse condemnation. SFPT further
argued that the City’s activities, which included mayoral press conferences and other
publicity specifically targeting the Property, damaged SFPT’s interest in the Property and
therefore constituted a taking. SFPT also maintained that the City’s failure to convey its
tract as required by the Exchange Agreement deprived SFPT of the physical use of that tract,
and that this deprivation informed the analysis of whether a taking had occurred.

{18} In its letter decision granting the City’s motion for summary judgment, the district
court determined that the City’s pre-condemnation planning and publicity regarding the
Property was not a taking for purposes of inverse condemnation. Relying on an Alaska case
with similar facts, the court concluded that “the City’s publicity does not show a present
concrete intention to acquire the Property. Additionally, [SFPT] has not shown that the City
substantially interfered with [its] property rights by denying a permit or otherwise
prohibiting [SFPT] from using the [P]roperty beneficially.” The court also concluded that
“[t]he facts of the Exchange Agreement . . . are not sufficiently tied to the Property claims
to defeat [the] City’s motion.” As for SFPT’s claim of a due process deprivation, the court
determined that the claim was subsumed into its inverse condemnation claim and that
“[w]ithout a taking, the [c]ourt cannot find that [SFPT]’s due process rights were violated.”

{19} On appeal, SFPT makes nine arguments challenging the summary judgment in favor
of the City, which we combine into five. SFPT argues that: (1) the district court erroneously

                                             6
applied the Alaska and federal standards regarding what constitutes a taking and that under
the proper standards, the City’s activities constituted a taking as a matter of law; (2) the
district court erroneously determined that SFPT had no claim for deprivation of due process;
(3) alternatively, the City’s breach of the Exchange Agreement constituted a physical taking
that resulted in injury to the Property, which was adjacent to the tracts covered by the
Exchange Agreement; (4) disputed issues of fact regarding the City’s intent to condemn the
Property precluded summary judgment; and (5) the district court erroneously ruled on two
preliminary issues by improperly fixing the date of the alleged taking and by failing to allow
a complete deposition of Mayor Chávez.

1.     Applicable Standards

{20} SFPT’s inverse condemnation claim relied on both federal law and state law. SFPT
contends that the district court applied erroneous standards in rejecting both aspects of its
claim.

a.     Federal Law

{21} The district court rejected SFPT’s claim of inverse condemnation under the takings
clause of the Fifth Amendment to the United States Constitution as applied to the states
through the Fourteenth Amendment. In doing so, the court relied in part on Agins, in which
the United States Supreme Court stated that a city’s pre-condemnation activities did not “so
burden[] the appellants’ enjoyment of their property as to constitute a taking.” 447 U.S. at
263 n.9. The Court in Agins also stated that “[m]ere fluctuations in value during the process
of governmental decision[-]making, absent extraordinary delay, are incidents of ownership.
They cannot be considered as a taking in the constitutional sense.” Id. (internal quotation
marks and citation omitted). The district court also mentioned First English Evangelical
Lutheran Church v. County of Los Angeles, which discussed Agins and another United States
Supreme Court decision, and stated that “these cases merely stand for the unexceptional
proposition that . . . depreciation in value of the [condemned] property by reason of
preliminary activity is not chargeable to the government.” First English Evangelical
Lutheran Church, 482 U.S. 304, 320 (1987), holding limited on other grounds by Tahoe-
Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002).

{22} SFPT challenges the district court’s reliance on Agins and First English because “the
Agins decision was overruled in Lingle.” In addition, SFPT argues that the district court
should have applied the balancing test in Penn Central Transportation Co. v. City of New
York, 438 U.S. 104, 122-23 (1978). We do not agree with SFPT’s argument regarding Agins
and, even if the Penn Central test is applied, it does not support SFPT’s contention that the
City’s planning and publicity in this case constituted a taking under the United States
Constitution.

{23} First, as SFPT itself acknowledges, the United States Supreme Court in Lingle did
not overrule or abrogate the statement in Agins to the effect that pre-condemnation

                                              7
governmental activities do not constitute a taking. Instead, the Court eliminated one of the
methods of identifying regulatory takings that was announced in Agins. See Lingle, 544 U.S.
at 545 (explaining that “the ‘substantially advances’ formula announced in Agins[, which
held that the application of a zoning law to a property is a taking if the law does not
substantially advance legitimate state interests,] is not a valid method of identifying
regulatory takings for which the Fifth Amendment requires just compensation”). Thus, the
undisturbed portion of Agins is persuasive authority for the proposition that federal law
would not recognize the City’s planning and publicity in the present case as a taking under
the United States Constitution.

{24} Second, the balancing test of Penn Central does not support SFPT’s position in this
case. Penn Central involved the question whether New York City’s historic preservation
restrictions, which culminated in a prohibition against specific development schemes for
Grand Central Terminal, constituted a taking under the Fifth Amendment. 438 U.S. at 115-
18. In answering the question in the negative, the Court reviewed the ad hoc factors that
may inform the determination of what constitutes a taking, including (1) the economic
impact of the government regulation on both the claimant and “investment-backed
expectations,” id. at 124, (2) the character of the government action (i.e., physical invasion
versus burdening economic interests “to promote the common good”), id., and (3) whether
the government action acquires “resources to permit or facilitate uniquely public functions.”
Id. at 128. The problem with application of these factors to the circumstances in the present
case is that the Court in Penn Central drew the factors from cases where there was either a
concrete government action, such as a regulation or the acquisition of resources that
“interfere[d] with interests that were sufficiently bound up with the reasonable expectations
of the claimant to constitute ‘property’ for Fifth Amendment purposes.” Id. at 125; see id.
124-28 and cases cited therein. Here, SFPT has not shown the existence of such concrete
government action or acquisition of resources; it has shown nothing more than “[m]ere
fluctuations in value during the process of governmental decision[-]making,” which are
“incidents of ownership” that “cannot be considered as a taking in the constitutional sense.”
Agins, 447 U.S. at 263 n.9 (internal quotation marks and citation omitted). We therefore
conclude that the district court properly granted summary judgment to the City on SFPT’s
federal inverse condemnation claim.

b.     State Law

{25} In rejecting SFPT’s state law claim, the district court’s letter decision cited Joseph
M. Jackovich Revocable Trust v. State Department of Transportation, 54 P.3d 294 (Alaska
2002), which, like the present case, involved pre-condemnation activities of a governmental
entity that allegedly resulted in reduced values for targeted properties. Id. at 295. The
Alaska Supreme Court in Jackovich relied on a two-part inquiry to determine whether pre-
condemnation publicity and planning constitute a taking and concluded that a court must ask
(1) whether the government had “publicly announced a present intention to condemn” the
property in question and (2) whether the government had “done something that substantially
interferes with the landowners’ use and enjoyment of [its] propert[y].” Id. at 300-01. The

                                              8
district court in the present case concluded that the City’s planning and publicity failed to
satisfy either requirement.

{26} SFPT challenges the district court’s reliance on Jackovich, arguing that requiring a
claimant to show the government’s actual intent to condemn property and its substantial
interference with property interests is contrary to New Mexico law. We are not persuaded.
While SFPT is correct that New Mexico law permits an inverse condemnation action even
if the government’s proposed damage to property is not a certainty and even if there is no
actual physical taking of property, we nonetheless conclude that in circumstances like those
before us, the Jackovich inquiries are useful and consistent with New Mexico precedent.

{27} We begin with New Mexico’s pertinent constitutional and statutory provisions.
Article II, Section 20 of the New Mexico Constitution states, “Private property shall not be
taken or damaged for public use without just compensation.” The applicable statute
provides:

        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 . . . for the value thereof or the
        damage thereto at the time the property is or was taken or damaged[.]

NMSA 1978, § 42A-1-29(A) (1983). Case law interpreting these provisions establishes that
a potential condemnor’s damage to property is compensable for purposes of inverse
condemnation and that an actual physical taking of property is not required. See Bd. of Cnty.
Comm’rs v. Harris, 1961-NMSC-165, ¶ 5, 69 N.M. 315, 366 P.2d 710 (stating that “in order
for an owner to be entitled to compensation a taking is not required—it being sufficient if
there are consequential damages”); see also City of Santa Fe v. Komis, 1992-NMSC-051,
¶ 11, 114 N.M. 659, 845 P.2d 753 (explaining that “[the] objective in a condemnation case
is to compensate the landowner for damages actually suffered. . . . [I]f loss of value can be
proven, it should be compensable regardless of its source.”).

{28} But this does not mean that any and all consequential damage to property arguably
caused by the pre-condemnation activity and publicity of a potential condemnor is
compensable in a claim for inverse condemnation. Our Supreme Court clarified in Public
Service Co. of New Mexico v. Catron that “[m]erely rendering private property less desirable
for certain purposes . . . will not constitute the damage . . . but the property itself must suffer
some diminution in substance, or be rendered intrinsically less valuable, by reason of the
public use.” 1982-NMSC-050, ¶ 7, 98 N.M. 134, 646 P.2d 561 (internal quotation marks
and citation omitted). Thus, the Court in Catron concluded that owners of property adjacent
to property condemned for installation of a high voltage transmission line were not entitled
to compensation for the loss in property value resulting from the transmission line’s noise
or from its interference with the view and radio/TV reception. Id. ¶¶ 8-15.

                                                9
{29} Similarly, our Supreme Court stated in Estate and Heirs of Sanchez v. County of
Bernalillo that a property owner’s right to the use and enjoyment of his or her property “does
not entitle an owner to use property for all economically viable purposes, and governmental
actions imposing an incidental economic loss will be upheld.” 1995-NMSC-058, ¶ 11, 120
N.M. 395, 902 P.2d 550. In that case, the Court affirmed summary judgment in favor of the
county, which had denied the plaintiff’s application for a special use permit in order to
develop its property into a mobile home park. Id. ¶ 4.

{30} These cases teach that in order to be compensable, a taking of or damage to property
must invade some substantive or intrinsic aspect of a landowner’s right to the use and
enjoyment of its property. An incidental economic loss is not sufficient. The current case
presents the question whether pre-condemnation publicity and planning can give rise to a
cognizable action for inverse condemnation, a question our appellate courts have never had
the opportunity to address. Courts in other jurisdictions have considered similar situations,
and their reasoning is consistent with the general principles of New Mexico’s law regarding
inverse condemnation.

{31} The Jackovich case is instructive. In that case, the state of Alaska had developed
plans for a road extension project that would ultimately be built on or near property owned
by the plaintiffs. 54 P.3d at 295. The state held public hearings on the location of the
project and revised the project’s design over a period of fifteen years. Id. Over the years,
the state notified landowners that would be impacted by the project as to the project’s
progress. Id. The landowners filed an inverse condemnation action “alleging de facto
takings of and damage to their properties.” Id. at 296. The Alaska Supreme Court affirmed
summary judgment in favor of the state. Id. at 304.

{32} The Jackovich court summarized the facts of the case as involving “pre-
condemnation publication of notices, information, plans, and proposals pertaining to a road
improvement project component that . . . might or might not be built.” Id. at 297. Like
SFPT in the present case, the landowners in Jackovich complained that all of these activities
caused them to be “unable to sell their properties” and to “[lose] rental income because pre-
condemnation announcements discouraged buyers and renters and made improvements
infeasible or economically imprudent.” Id. at 298. And, like the New Mexico Constitution,
Alaska’s constitution prohibits the taking of or damage to property for public use without
just compensation. Id. In determining whether pre-condemnation planning and publicity
can constitute a taking or damage in an inverse condemnation case, the Jackovich court
adopted the two-part inquiry previously mentioned. Id.

{33} The two-part Jackovich inquiry makes sense. As for the first requirement—a present
intention to condemn specific property—it would be imprudent to allow compensation in an
inverse condemnation case if the condemning entity did not have such a present intention.
For example, if the mayor of Albuquerque announced that the city was considering the
possibility of condemning certain property, at the earliest, twenty years from now, any
damage to the condemnee’s property would be purely speculative. With respect to the

                                             10
second requirement—action that substantially interferes with the use and enjoyment of the
potential condemnee’s property—policy considerations support this requirement. The mere
planning or plotting of a public improvement cannot alone be enough to suffice, even if the
publicity surrounding the planning results in economic damage to the owner of the targeted
property. “If the rule were otherwise, it would encourage [condemning entities such as]
municipalities to operate secretively and to act as quickly as possible which would inhibit
free discussion of the merits of a project. It would also discourage a municipality from
considering alternative sites, since that would just add to the municipality’s potential
liability.” McQuillin, supra, § 32.37 at 626 (footnotes omitted).

{34} These requirements are also consistent with the teachings of New Mexico case law.
Our Supreme Court in Electro-Jet Tool and Manufacturing Co. v. City of Albuquerque stated
that “[t]he damage must be the result of the public entity’s deliberate taking or damaging of
the property in order to accomplish the public purpose[,]” 1992-NMSC-060, ¶ 9, 114 N.M.
676, 845 P.2d 770 (emphasis added), which is similar to the requirement in Jackovich for
a present concrete intention to condemn. And, as we have already observed, New Mexico
law requires the condemning authority to take some action that substantively invades the
potential condemnee’s intrinsic use and enjoyment of its property, which is similar to the
Jackovich requirement that the public entity must do something that substantially interferes
with the landowner’s use and enjoyment.

{35} We are not persuaded by SFPT’s argument that Electro-Jet supplies a different
standard for the public entity’s intentions. In Electro-Jet, our Supreme Court addressed the
meaning of the phrase “for public use” in the condemnation provisions of our constitution
and statutes. 1992-NMSC-060, ¶ 1 (internal quotation marks omitted). The Court concluded
that a property owner seeking damages for inverse condemnation must prove more than
negligence on the part of the public entity. Id. ¶ 22. This is entirely consistent with a
requirement that the property owner prove a present concrete intention to condemn.

{36} Nor are we persuaded that a present concrete intention to condemn is “tantamount
to an actual condemnation,” as SFPT maintains. In keeping with our case law,
“condemnation” is synonymous with both a taking of and damage to property. Therefore,
a present concrete intention to condemn is an intention to take or to damage the landowner’s
property.

{37} We conclude that the district court’s reliance on Jackovich was not misplaced, and
we adopt the Jackovich two-part inquiry for determining whether planning and publicity
related to a potential condemnation establish a public entity’s liability for inverse
condemnation. The inquiry is consistent not only with existing New Mexico law but also
with the leading authorities on the subject. For example, Nichols on Eminent Domain
mirrors the second Jackovich inquiry and states that of the bundle of rights or “sticks” that
comprise the concept of property, “[o]nly certain sticks—e.g., the right of possession—are
afforded full protection by the [laws requiring compensation for public takings]. Under that
analysis certain other ‘sticks’—e.g., the right to use and develop property—are afforded

                                             11
significantly less protection.” 2A Julius L. Sackman, Nichols on Eminent Domain, ch. 6,
§ 6.01[8] at 6-19 (MB 3d ed. 2013) (footnotes omitted). Thus, the public entity in question
must take some action that substantially interferes with the landowner’s use and enjoyment.
Similarly, the McQuillin treatise states that the “mere manifestation of intent to take or a
threat to condemn does not constitute condemnation blight warranting recovery for reduction
in value of property.” McQuillin, supra, § 32.37 at 624. There must also be “some direct
restriction on the use of the property.” Id. at 626.

{38} We are further unpersuaded by SFPT’s argument that New Mexico law has adopted
a “reasonableness” standard that is applicable in the present case. Even if SFPT is correct
that reasonableness governs the assessment of damages in a condemnation case, there must
first be damage to or taking of property before the assessment of damages comes into play.
See § 42A-1-29(A) (stating that liability for damage to property occurs when a condemnor
“has taken or damaged or . . . may take or damage any property for public use without
making just compensation”).

{39} Having established the state law standards for determining whether pre-
condemnation planning and publicity constitute damage to or taking of property, we now
apply these standards to the circumstances in the case before us. We conclude that SFPT
established only one of the two Jackovich requirements that we have adopted. SFPT’s
evidence showed that the City—at least the City’s administration—intended to condemn the
Property as soon as it was able to obtain financing, an agreement with a developer, and,
importantly, approval of everything by the city council. However, SFPT failed to establish
that the City’s actions substantially interfered with SFPT’s use and enjoyment of the
Property.

{40} Regarding the present concrete intention to condemn the Property, SFPT’s evidence
showed that the City’s administration publicly announced its desire to condemn the Property
and took significant steps demonstrating its intention by issuing the RFI, by obtaining city
council approval of the MOU with AMC, and by issuing the RFP. We emphasize the
importance of the steps the administration took beyond simply announcing a desire to
explore the arena project and vetting that proposal publicly. As we have already mentioned,
a city’s public airing and exploration of possible development plans are to be encouraged
and cannot, by themselves, give rise to a claim of inverse condemnation. Here, the RFI, the
MOU, and the RFP went beyond the planning and publicity stage and demonstrated a
committed, substantive intention to condemn the Property if means could be found to do so.

{41} But the publicity, the planning, the RFI, the MOU, and the RFP did not substantially
interfere with SFPT’s use and enjoyment of the Property. Indeed, SFPT acknowledged at
a hearing that it was not claiming that the Property had been “rendered totally useless and
that no tenants will continue [to] lease.” While the evidence demonstrated that some
potential tenants of the building on the Property were deterred by the possibility of imminent
condemnation, this is not the kind of interference that rises to the level of unconstitutional
damage to or taking of property. As our Supreme Court said in Catron, “[m]erely rendering

                                             12
private property less desirable for certain purposes . . . will not constitute the damage . . . but
the property itself must suffer some diminution in substance, or be rendered intrinsically less
valuable, by reason of the public use.” 1982-NMSC-050, ¶ 7 (internal quotation marks and
citation omitted). The City’s planning activities, which never came to fruition, did not
prevent SFPT from possessing the Property or from using it. The City never physically
appropriated the use of the Property, it never contacted existing or prospective tenants, it
never denied SFPT any use permits related to the Property, and it never enacted any
ordinances or regulations that changed the use of the Property. See Estate & Heirs of
Sanchez, 1995-NMSC-058, ¶¶ 7, 10 (explaining that a taking is not unconstitutional unless
the government’s action “deprives the [property] owner of all beneficial use of [the subject]
property”).

{42} All government actions will have some incidental economic consequences, and
anyone owning property near the site of such activity will bear the risk of those
consequences. But unless the government’s actions directly restrict the use of that property,
the property owner is not entitled to compensation for those actions. See McQuillin, supra,
§ 32.37 at 625-26 (explaining that “[p]ublicly targeting a property for condemnation,
resulting in economic damage to the owner, is not a taking unless there is some direct
restriction on the use of the property”). Governmental entities, like the City, must be
encouraged to air their planning ideas in public so that they can be fully vetted, challenged,
improved, or rejected. We therefore conclude that the district court properly granted the City
summary judgment on SFPT’s claims for inverse condemnation under both federal and state
law.

2.      Alleged Due Process Violation

{43} We also conclude that the district court correctly granted summary judgment on
SFPT’s claim that it was deprived of due process, albeit on slightly different grounds than
those relied on by the district court. While the district court determined that “[SFPT]’s due
process claim seems to be subsumed into their taking claims,” the federal circuit courts are
divided on this question, and the United States Supreme Court has not provided clear
direction. See Brian W. Blaesser & Alan C. Weinstein, Federal Land Use Law & Litigation,
§ 1:14 (2013) (explaining that “recent decisions by the Supreme Court may also limit
substantive due process claims in land use cases” and that the circuit courts are split on the
issue). But, in any event, it seems clear that federal law will not recognize a substantive due
process claim in the land use context unless there has been a government regulation
impacting the property owner’s use. See Blaesser & Weinstein, supra, Ch. 1 (stating that
“[f]ederal substantive due process in land use regulation refers to the right of a property
owner not to be subject to arbitrary or capricious regulatory action by a government
legislative or administrative body”). Here, the city enacted no ordinance or regulation
impacting SFPT’s use of the Property, and its activities planning and publicizing the idea of
the arena do not rise to the level of a regulatory action. As a result, SFPT’s claim of a due
process violation fails.


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3.     The Exchange Agreement Did Not Constitute a Taking

{44} SFPT appears to argue in the alternative that the City’s alleged breach of the
Exchange Agreement resulted in injury to the Property and therefore provided the basis for
SFPT’s inverse condemnation claim. We agree with the district court’s assessment that
“[t]he facts of the Exchange Agreement property are not sufficiently tied to the Property
claims to defeat [summary judgment].”

{45} The property involved in the Exchange Agreement—the City tract and the SFPT
tract—were adjacent to the Property itself. The agreement provided that SFPT would
convey a permanent roadway easement to the SFPT tract, the City and SFPT would share
the cost of improvements to the City tract, and then the City would exchange title to its tract
for title to SFPT’s tract. While SFPT conveyed the easement to the City, the ensuing
exchange had not taken place as of the time of the summary judgment motion.

{46} SFPT argues that the failed culmination of the Exchange Agreement damaged the
Property by eliminating its use of two access points on the City tract and by taking
possession of the SFPT tract by way of the easement. Yet SFPT fails to demonstrate how
the alleged loss of two access points and the SFPT tract negatively impacted the Property.
It does not show that the loss of either prevented its beneficial use of the Property.

{47} In fact, SFPT’s claim of damages was related to the loss of its ability to lease the
Property due to the publicity and planning surrounding the potential condemnation of the
Property, not due to any negative impact related to the tracts at issue in the Exchange
Agreement. SFPT’s complaint and amended complaint did not even mention the Exchange
Agreement in connection with its claims of inverse condemnation and deprivation of due
process. SFPT’s claims in connection with the Exchange Agreement were asserted in a
separate count for breach of contract, and the parties ultimately settled these claims.

{48} We are not persuaded by SFPT’s reliance on our Supreme Court’s decision in Komis,
which SFPT claims stands for the proposition that a partial taking of property can result in
damages for a “perceived loss” to the remaining property. SFPT reads too much into the
Komis opinion. Komis involved property partially condemned for construction of a highway
used in transporting nuclear waste to the Waste Isolation Pilot Project near Carlsbad, New
Mexico. 1992-NMSC-051, ¶¶ 2, 4. The jury awarded the property owners damages in
compensation for the property taken and for the perceived loss to the remaining property
“due to public perception of the effect of transporting radioactive waste material.” Id. ¶¶ 4-
5.

{49} We have no quarrel with SFPT’s contention that damages may be recoverable for
perceived loss to property remaining after a partial condemnation. But here there has been
no condemnation, and Komis does not change that fact. Komis addressed the measure of
damages, not what constitutes a taking. And, even if the City’s alleged non-compliance with
the Exchange Agreement could be deemed a taking, SFPT failed to tie this non-compliance

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to any loss of use related to the Property. The alleged loss of two access points is
meaningless unless it can be established that the loss negatively impacted SFPT’s use of the
Property.

4.     Alleged Disputed Issues of Fact

{50} SFPT argues that the evidence created disputed issues of fact regarding the City’s
intent to condemn and the reasonableness of the City’s pre-condemnation conduct. We have
already determined that SFPT established that the City had a present concrete intention to
condemn the Property, and we have rejected SFPT’s argument that reasonableness is the
standard by which pre-condemnation conduct is assessed. We therefore need not address
this contention further.

5.     Preliminary Issues: Fixing the Date of the Alleged Taking and Restricting the
       Scope of Mayor Chávez’s Deposition

{51} SFPT raises two final arguments, maintaining that the district court erroneously
required SFPT to commit to a date of the alleged taking and that the court improperly
restricted the scope of SFPT’s inquiry at the deposition of Mayor Chávez. We perceive no
error in either ruling.

{52} With regard to the date of the alleged taking, SFPT acknowledges that Section 42A-
1-29 contemplates a specific date in order to allow calculation of compensation that is due
when a taking occurs. But SFPT contends that the taking in this case occurred over a period
of time, and, therefore, the date of the taking was a factual issue for the jury to determine.
This argument is unavailing. Because we have determined that summary judgment was
appropriate, there is no need to calculate compensation, and the date of the alleged taking
is therefore irrelevant.

{53} As for the restriction on the scope of Mayor Chávez’s deposition, the district court
limited SFPT’s inquiry to dates occurring prior to January 7, 2004, the date of one of the
mayor’s press conference. We review orders regarding discovery matters for abuse of
discretion. See Estate of Romero ex rel. Romero v. City of Santa Fe, 2006-NMSC-028, ¶ 6,
139 N.M. 671, 137 P.3d 611.

{54} After SFPT gave notice that it intended to take Mayor Chávez’s deposition, the City
filed a notice of non-appearance and motion for protective order. In its pleadings related to
this motion, the City argued that SFPT already had all of the information it needed about the
City’s intentions regarding the Property via the publicity and other documents SFPT had
presented as exhibits to other pleadings. SFPT responded that it was important to depose the
mayor to discover the basis for his public statements about the Property, what instructions
he gave to staff about the proposed condemnation, and what communications he had with
the city council.


                                             15
{55} At the hearing on the motion, the City appeared to argue that the mayor did not do
anything after the date established for the taking, January 1, 2004, and, as a result, inquiry
into that time period would be irrelevant. SFPT responded that “the announcements and
activities that took place in January of 2004 and subsequently, went over the top” and that
SFPT needed to “go into the background of the—what justification, if any, there was for the
activities that started occurring in January of 2004.”

{56} Ultimately, the district court ruled that the dispositive date was January 1, 2004, the
date previously set for the taking, and that “things done after that are not relevant.” At
SFPT’s request, the court then amended the cutoff date to January 7, 2004, the date when the
public announcement of the proposed condemnation was made.

{57} We fail to see how inquiry into Mayor Chávez’s post-January 7, 2004 rationale for
public statements, instructions to staff, or communications with the city council would have
made any difference to SFPT’s claims. There was no dispute about the actions the City
actually took after January 7, 2004, and we have determined that none of those
actions—either before or after January 7, 2004—constituted damage to or taking of the
Property. Without an action that substantially interfered with SFPT’s beneficial use of the
Property, it is simply irrelevant to consider what motives lay beneath the surface. The
district court acted within its discretion in limiting SFPT’s questioning to events occurring
prior to January 7, 2004.

CONCLUSION

{58}    For the foregoing reasons, we affirm the district court’s judgment in favor of the
City.

{59}    IT IS SO ORDERED.

                                              _____________________________________
                                              CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Judge

____________________________________
J. MILES HANISEE, Judge




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