A. The commission may acquire by agreement or condemnation all outdoor advertising and property rights pertaining thereto. The commission may so remove the outdoor advertising if at the time of the acquisition:

(1) the outdoor advertising bears the requisite permit, if any;

(2) the owner of the outdoor advertising has timely paid all permit fees, past and present, if any, required in connection with the erection and maintenance thereof;

(3) the outdoor advertising conforms with standards, specifications and requirements contained in regulations promulgated by the commission; and

(4) the outdoor advertising was lawfully in existence on the effective date of the Highway Beautification Act and has continued to so exist, or was lawfully erected subsequent to the effective date. For the purpose of this paragraph, any outdoor advertising in existence on or after November 6, 1978, that was erected prior to November 18, 1971 under any permit or conditional permit issued by the state highway department shall be considered to be lawfully erected. For all purposes the effective date of the New Mexico Highway Beautification Act shall be March 15, 1971.

The condemnation shall be exercised by eminent domain in the manner provided by law, and each interested party shall have the right to a separate trial as to the respective interests involved.

B. Whenever outdoor advertising and property rights pertaining thereto are acquired by the commission pursuant to Subsection A of this section:

(1) the owner of the outdoor advertising shall be paid just compensation by the commission equal to the fair market value of the outdoor advertising which is to be deemed a trade fixture; and

(2) the owner of the land upon which the outdoor advertising is located shall be paid just compensation equal to the value of his right to have the outdoor advertising erected and maintained on the land.

C. The right to compensation as provided in Subsection B of this section shall not be affected solely by the failure of any outdoor advertising to conform to standards, specifications and requirements contained in regulations promulgated by the commission relating to any subject other than permits or permit fees unless the commission has given notice by certified mail to the owner of the land upon which the outdoor advertising is located, and to the owner of the outdoor advertising if his name appears thereon, advising of the failure to conform and ordering that the outdoor advertising be made to so conform or be removed within thirty days from the date of such notice. If the failure to conform is corrected within the thirty days, then the failure to conform shall be deemed cured for all purposes; if, however, the defect is not corrected within the thirty days, the commission may thereafter remove the outdoor advertising at the expense of the owner of the outdoor advertising without any compensation whatsoever. This subsection specifically does not apply in any manner to permit fees, and no notice whatsoever shall be required in connection with the permit fees.

D. Compensation shall not include any element of damages which is not subject to federal aid participation under the federal Highway Beautification Act of 1965, as has been or may be hereafter amended or superseded, or otherwise.

E. In any case where outdoor advertising has been removed under the Highway Beautification Act, and the removal is compensable under that act, but the commission has not paid just compensation or instituted condemnation proceedings therefor, the owner of the outdoor advertising, or the owner of the land upon which it is located, or both, may bring actions against the commission as provided in Section 42-1-23 NMSA 1978, for recovery of such compensation.

F. All outdoor advertising other than that meeting all the requirements of Subsection A of this section is declared to be a public nuisance and in contravention of law. Therefore and otherwise, the commission may remove or cause the removal of all outdoor advertising other than that meeting all the requirements of Subsection A of this section which removal shall be without any compensation whatsoever and at the expense of the owner of the outdoor advertising.

G. Removal of outdoor advertising by or at the request of the commission, its agents or employees in compliance with the Highway Beautification Act does not subject such removal or the persons performing it to criminal prosecution or give rise to any liability to any person or entity for the injury, loss or destruction of any property which occurs in connection with the removal.

History: 1953 Comp., § 55-11-6, enacted by Laws 1966, ch. 65, § 6; 1967, ch. 140, § 3; 1971, ch. 108, § 4; 1975, ch. 193, § 3; 1981, ch. 371, § 1.

The 1981 amendment divided the former language in the introductory paragraph of Subsection A into two sentences and substituted "The commission may so" for "and" and "the" for "said" following "of" and deleted "the outdoor advertising" following "if" in the second sentence therein, added the last two sentences in Subsection A(4), added "the outdoor advertising" at the beginning of Paragraphs (1) and (3) and of the first sentence in Paragraph (4) of Subsection A, added "if any" at the end of Subsection A(1), added "the owner of the outdoor advertising" at the beginning of, and inserted "if any" in Subsection A(2), substituted "the" for "said" following "to" in the first sentence in Subsection A(4) and deleted "said" preceding "thirty days, then" in the next to last sentence in Subsection C.

Compiler's notes. — The effective date of the Highway Beautification Act is May 19, 1966.

Section 42-1-23 NMSA 1978, referred to near the end of Subsection E, was repealed by Laws 1981, ch. 125, § 62. For present similar provisions, see 42A-1-29 NMSA 1978.

Federal Highway Beautification Act. — The federal Highway Beautification Act of 1965, referred to in this section, appears as 23 U.S.C. §§ 131, 135, 136 and 139.

Regulation deemed proper exercise of police power. — The regulation of outdoor advertising along interstate and primary highways is a reasonable and proper exercise of the police power. Stuckey's Stores, Inc. v. O'Cheskey, 1979-NMSC-060, 93 N.M. 312, 600 P.2d 258, appeal dismissed, 446 U.S. 930, 100 S. Ct. 2145, 64 L. Ed. 2d 783 (1980).

Enforcement of Highway Beautification Act does not violate just compensation clauses of the United States and New Mexico constitutions. Stuckey's Stores, Inc. v. O'Cheskey, 1979-NMSC-060, 93 N.M. 312, 600 P.2d 258, appeal dismissed, 446 U.S. 930, 100 S. Ct. 2145, 64 L. Ed. 2d 783 (1980).

Law reviews. — For note, "Estoppel Applied Against the State," see 10 N.M.L. Rev. 501 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Highways, Streets and Bridges § 288.

Eminent domain: compensability of loss of visibility of owner's property, 7 A.L.R.5th 113.