AUGUSTA, Maine — The Maine House narrowly approved a controversial bill that rewrites the state’s regulatory land-use rules to allow property owners to sue the state if the property lost at least 50 percent of its value due to a regulation.
Currently, if a land-use or environmental regulation diminishes property values, the owner has no recourse.
LD 1810, known as the “takings” bill, sharply divided House Republicans and Democrats before Wednesday’s mostly party-line 74-72 vote. Debate lasted nearly two hours and the vote itself took more than five minutes because, according to members, House leaders were actively lobbying members to ensure a positive vote.
On Thursday, the matter was scheduled to be taken up by the Maine Senate, where its fate was uncertain.
“It has been a long road to get to this point, but we’re encouraged that we will be able to provide farmers and other Maine landowners some relief,” said State Rep. Andre Cushing, R-Hampden. “We are simply asking future Legislatures to recognize that their actions can – and at times do – impact property owners’ ability to use or develop their land. The process proposed in this bill lays out a pathway for reasonable resolution.”
Democrats sharply disagreed and said it would increase lawsuits considerably, pit landowners against taxpayers and make special-interest lawyers rich. Worse, they said, is that the bill could allow agencies and courts to waive land use rules and regulations for any kind of development.
“This bill shouldn’t be called ‘takings,’” said Rep. Chuck Kruger, D-Thomaston. “This should be the ‘corporate-special-interest-giveaway’ bill. That’s who wins if this bill passes. It will not help ‘mom and pop’, small business, or regular people trying to improve their lot.”
Kruger pointed to a similar case in Oregon where the state was unable to pay a $203 million claim and was then forced to waive the law for a developer to allow mining, a geothermal plant and a resort near a national monument.
“This bill creates a new legal cause of action,” added Rep. Bob Duchesne, D-Hudson, during floor debate on Wednesday. “That’s what America needs: more ways to sue each other.”
As written, LD 1810 creates a process by which landowners can take action.
When land is seized under eminent domain to build a road, a hospital or other public facility, property owners are compensated for their lost property value. But there is nothing to protect owners from lost value because of increased regulations.
The first step in the process outlined in the bill would be mediation. If unsuccessful, a lawsuit could be filed but could be limited to challenging future state-level land-use laws. In other words, existing regulations are exempt from challenge, including local municipal ordinances and all regulations dealing with health, safety and nuisance matters.
Any loss in value would have to be determined by before-and-after appraisals by independent, professional real estate appraisers. Damages would be capped at the state tort level of $400,000.
“This is not about cashing in on state regulations,” Cushing said. “In the vast majority of cases, the problem can likely be solved by granting a waiver to the regulation or some other practical accommodation.”
The bill was drafted by Catherine Connors, a Pierce Atwood attorney who specializes in regulatory takings. Some Democrats have criticized her involvement since she stands to benefit from the new law.
Duchesne even referenced that connection during his floor remarks on Wednesday when he referenced the four branches of government: the Legislature, the executive, the judiciary and Pierce Atwood.
The bill that was approved on Wednesday was actually the minority report of the Judiciary Committee that was backed solely by Republicans.
The majority report, authored by Rep. Bradley Moulton, R-York, and Rep. Charlie Priest, D-Brunswick, would have turned the recently created Regulatory Fairness Committee into a standing legislative committee. That panel would meet to hear complaints about regulations that were affecting landowners and would have the power to recommend legislation.
The majority report never got a vote in the House.
Seventeen years ago, the Maine Legislature rejected a similar bill, but the idea has resurfaced lately in a number of states, including Florida, which passed a takings bill recently.
Similar takings bills have been advanced by the American Legislative Exchange Council, a conservative national group funded by corporations that drafts model legislation.
ALEC has come under fire in recent days after revelations that it has pushed “Stand Your Ground” legislation that has been cited in the death of Florida teen Trayvon Martin.
So far, at least 7 major corporations — Wendy’s, McDonald’s, The Bill and Melinda Gates Foundation, Intuit, Kraft, PepsiCo and Coca-Cola — have severed ties with ALEC.
Follow BDN reporter Eric Russell on Twitter @BDNPolitics.
I would vote for a “Taking out ALEC” bill.
Thanks Augusta, just what Maine needs more lawsuits.
Now I know at lease seven companies I can do business with.
As soon as this bill is signed, and you can bet that Paulie has got the pen all warmed up, the 1st time it’s used, this whole thing is gonna wind up in the Federal Court’s under the 4th Amendment’s ‘Seizure’ provision. Connecticut tried this when Rowland was Governor and the current Governor, Malloy, was the AG when Connecticut tried to seize the land under the ’eminent domain’ prnciple without any attempt at compensating the landowner’s, and any cases, homeowner’s, in New London’s ‘City Revitalization Project’.
It took 2 years but when it got to ‘The Supreme’s’, Connecticut got it’s collective keester kicked right back to Hartford and was told in no uncertain terms ‘ NO, NO’ and then had to reimburse, at State expense, everyone that had their property illegally seized, and in many cases, destroyed thru the raising of their business’s and home’s. Since then anytime any Government Agency that tries to use this eminent domain nonsense has seen their efforts go up in smoke as soon as the ‘comensation’ provision’s come into play. What’s so surprising is the anyone in Maine would even try this given the SCOTUS rulings on 4th Amendment and ‘Just Compensation’. My only question now is a simple one. Who’s gonna be paying the piper, the GOP or the Democrat’s, when this whole thing blow’s up in their collective political faces ? This is one bill that both Cushing and Dill should be up in arms about regarding the Constitutional Right’s of the Maine voter’s. So why aren’t they ?
the 4th amendment has nothing to do with taking. It is a prohibition against seizing without a warrant by law enforcement officials. The taking clause is the 5Th amendment but that’s not implicated either.
The State already has the right to take property by eminant domain but that requires compensation. The issue here is a taking of property VALUE, not the property itself, without compensation. Query: when does the regulation of private property become so complete as to be an a taking in all but name? A state statute that requires compensation by the State for that devaluation does not implicate the US Constitution at all. A statute that allowed a taking WITHOUT compensation would. The point is that a State can give greater rights to a citizen than the US Constitution but can’t restrict rights to something less than guaranteed in the Constitution.
“A statute that allowed a taking WITHOUT compensation would. ”
Then why haven’t we heard of any challenges that have been successfully litigated under constitutional grounds and why the need for the law in the first place if the action is constitutionally protected?
Those folks in Connecticut are more than a little gunshy when this comes up, given that they were the one’s that got this whole thing going. The New London case was litigated under Constitutional grounds. The why it hasn’t been used more frequently is anyone’s guess.
you haven’t read enough Con law than. The USSC has many cases on just that point.
Once again, if your point is precedent has already been set by the courts, what purpose does this law serve? Why the need for the law?
Given the fact the Ds almost unanimously voted against it I would suspect the Rs will be the ones holding the bag! Of course, Rep. Knight flipped his vote at the last minute which is the vote that allowed them to win the first vote.
“Democrats sharply disagreed and said it would increase lawsuits considerably…”
You can’t make this stuff up. The idea that Democrats, who never hesitate to slap “environmental” lawsuits on hapless property owners because a loathesome insect or puddle was discovered on their property, are wailing and beating their breasts about increases in lawsuits is absolutely hilarious.
Not that it will stop them from demagoguing the issue to death.
As a bonus, they get to screech about ALEC again. Good times.
” Democrats sharply disagreed and said it would increase lawsuits
considerably, pit landowners against taxpayers and make special-interest
lawyers rich. Worse, they said, is that the bill could allow agencies
and courts to waive land use rules and regulations for any kind of
development.”
So tell me, do any of you still think of the Dems as the party of the “little guy”? They want the State to continue to be able to devalue YOUR private property without any compensation. The effect of that practice is that you, the property owner, are forced to make a contribution of the value of your land for “the greater good”. The forfeiture of private land to the State for “the greater good” is a fundamental tenant of Communism.
So find a bogey man that everyone loves to hate and misdirect the debate from compensation for individual victims of a State taking of private property to, let’s see, lawyers! Yeah, that’s it, let’s tell them that we don’t want “special interest” lawyers “to get rich”. Tell me, what special interest? Defending property owners from the taking of their property’s value? What special interest or class is that? Oh yeah, private property owners. We as a society surely have to be wary of them.
And please take note that the Dems see “property owners” and “taxpayers” as two different and antagonistic groups. Really? So who pays taxes in this State if not the property owners? Surely not the Entitleists the Dems champion. They are consumers of tax revenue, not contributors.
Nothing like trying to foment a little class warfare. Another tried and true Communist/Socialist tactic. Look around, you can see it on a national scale every time Obama opens his mouth about taxes, jobs, “fair share” of this or that, and race. The politics of divide and conquer, so successful nationally, have trickled down to our fair State.
For shame.
Well put.
The collectivists have been using the tactic of takings by regulation for years, and it’s about time they got slapped back.
Private property rights have been assaulted by otherwise unemployable “environmentalists” with clipboards and an agenda for years now and any countervailing actions to finally give them their comeuppance should be counted as a victory for the rights of the individual against the leviathan State.
Just the opposite. It is a defeat for the rights of the individual against the leviathan Corporate State.
I own land. We worked hard, saved, conserved, and went without to purchase our little slice of heaven. I expect that if the State changes the way it does business and it creates significant, deleterious effects on the value of our property I’d like to have some sort of recourse to be compensated.
Should the state compensate employers for their expenses in complying with safety regulations?
What’s next, lawsuits demanding income taxes be refunded because they unduly burden the individual for the good of all?
Mr. Mills is correct. Everyone who owns property next to a body of water will be in court with this law. Good grief.
Nonsense. What “little guy” from Joe Public supported this thing except the republican legislators from Maine collecting an ALEC paycheck? It was cookie cut down south somewhere and is being rubberstamped around the country in the same manner you have attempted. Something certainly has “trickled down to our fair State” but I would suggest it is not from those you vilify. Your rhetoric is also of the cookie cutter variety that not all of us “little guys” buy.
I don’t know ALEC and have never spoken to him but I have no problem seeing that the State should compensate an individual for taking a significant portion of his property value for some perceived common interest. That’s not rhetoric, it’s my opinion.
Why do you oppose that principle?
Please identify for the AG the legislators who are accepting payment to support a bill. They will be glad to prosecute. Or was that comment just gratuitous, mean spirited “rhetoric”?
PS : here’s the part where you intensify your attack of me (not just unsupported accusations of corruption by legislators) personally instead of debating the point at issue, another tried and true tactic of the liberal left.
Bout time !
“…….but we’re encouraged that we will be able to provide farmers and other Maine landowners some relief,” said State Rep. Andre Cushing, R-Hampden.”
Farmers, Andre? Seriously!?! This bill is designed (by your ALEC handlers) to benefit developers and corporate polluters. Farmers don’t want anything to do with it.
Bottom line is if it’s stamped ALEC, you’d better smell the rat.
“Democrats sharply disagreed and said it would… pit landowners against taxpayers…” Land owners ARE taxpayers.
Better late than never. This should have been passed 40 years ago.
The latter part of this article is a regurgitated version of a press release sent out by Maine’s Majority PAC, a political action campaign that represents the 61% who did not vote for Governor LePage. As usual, it’s not hard to find an agenda within a BDN article.
What does a ‘takings’ bill have to do with self-defense law? Honestly nothing. This is the PAC’s attempt to associate Maine Republicans with violence and racism. However, self-defense (aka ‘stand your ground’) laws are designed to protect victims of violence, not instigators. These laws do NOT permit a person to chase or follow a person; instead they ONLY apply if a person is attacked with deadly force and absolutely cannot escape. Once again, the Trayvon Martin case is being exploited by a political group in attempt to smear a specific political party, and the Bangor Daily News has joined them. Completely despicable.
The only true winners in this law are the lawyers.
It’s a good thing that regulations never protect anything that has any value, like protecting public waters from the effects of pollution and runoff or protecting neighbors from undue noise impacts from windpower projects or anything. This law is tailor-made to help big wind projects get around any stricter requirements for noise or scenic impacts.
“This is not about cashing in on state regulations,” Cushing said. “In the vast majority of cases, the problem can likely be solved by granting a waiver to the regulation or some other practical accommodation.”
I hope you guys like wind turbines.
This law is not aimed at the “little” guy. It is purely to help Irving and the likes. This bill will basically give the state an excuse to terminate or kill any new regulations on lands. To defend agains lawsuits brought by the big corporations because they can’t do what they want on the property they bought or own. Since they can’t use it for the reason they wanted. The value of the land goes down, and now the state has to reimburse them! This is nothing but a state guranteed insurance policy for major companies if they can’t get regulations removed for what ever they want to do!!!
How many little guys buys property in the state and can’t do what they want?? Very few, most buy land for recreation or to live on. There are very few regulations on that. But if you want to mine, or clear cut, frack for gas, open big chicken farm and dump waste in streams, or open a dump there are regulations. This is another scam law suposidily for one reason and to protect the normal guy. But really written for big corporate land owners and companies. And no I am not greenie either.
There is no end to the stupidity of the current Maine House. This is nothing more than an invitation to developers to make money on settlements rather than a real business. I can hear it now. ” I was going to turn this swampland into a shopping center, I lost million” ” Oh! I can’t develop my camp. I have 6 experts who value that loss at 4x market value. It’s going to cost 500 an hour to depose each of them. My lawyer filed 12 motions. Ok, lets just settle for 2x market value. The winners are developers and lawyers. The loser is the taxpayer and the environment which is one thing our state can count on to make money. There is a reason no other state has this. The law on this issue has been around since the early 1900’s and nearly everyone has reasonable use of their property. Did it occur to you that since the settlements will all come from tax money that your private property will be taken anyway to pay for it?
Another last minute piece of dirt from the Tea Potty/ ALEC stains in the legislature. Good for the developers, bad for the people. Time to flush them down.