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Citizens, lawyers offer differing views on “Takings Bill”

by Terrilyn Simpson

The much debated “Takings Bill” will be hammered out in round two of a legislative work session this week, with the Judiciary Committee expected to render a verdict as to how the bill will move ahead for full legislative consideration.

LD 1810, An Act to Implement Recommendations of the Committee to Review Issues Dealing with Regulatory Takings — recommends compensation, mediation or variances in cases where privately owned land is devalued more than 50 percent of its total worth as the result of land use regulations.

More than a hundred citizens overflowed the hearing room to participate in the public hearing and offer their testimony on February 21. The subsequent work session on March 1 was continued and will resume Thursday, March 8 at 1:30 p.m. in committee room 438 of the State House.

A vote, to determine an Ought to Pass or Ought Not to Pass committee recommendation is expected by the end of the point-by-point March 8 review process.

While constituents are not allowed to speak at the work session unless invited to do so, the proceeding is open to the public.

Following are two testimonies representative of the opposing views presented at the original public hearing.

Anthony Garrity, a maintenance mechanic at Fairchild Semiconductor in South Portland, used up a vacation day to allow him to afford to travel from his home in West Newfield to the Maine Statehouse to testify before the Judiciary Committee on the Regulatory Takings bill (LD 1810). He said it is one of a number of vacation days he’s sacrificed to attend various agency hearings in his battle to protect property rights, with the hope that other property owners will not be subjected to what his family has gone through, and to ensure his family’s future property rights will not be further encumbered.

Garrity, wearing jeans and a red t-shirt with a protect my property rights slogan, appeared to be alone and noticeably nervous. Told that he appeared to be having a hard time breathing when he faced committee members, he laughingly commented that when he reached the podium he was worried about the issue himself. He’s not fond of speaking in public.

Garrity said he and his wife, the parents of three children, have lost the use of several acres near a swamp area, as the result of vernal pool and water bird regulations which occurred several years after they’d purchased the property. He said they’d planned on removing some existing tree growth and replacing that with apple trees.

Garrity, who seemed to have fine-tuned his testimony, was one of the few speakers who managed not to be cut off by the three-minute limit imposed because of the heavy constituent turnout. His message, in fact, seemed to illustrate a point later made by Committee Co-chair Joan Nass that a person could convey a lot in three minutes if they used the time well.

Garrity’s address to committee members follows:

Chairpersons Nass and Hastings, Fair-minded Members of the Judiciary Committee:

I’m Anthony Garrity from West Newfield, Maine. Once again, I’ve had to take a day from work and travel up here to ask the legislature to help right wrongs done to my family and (to) rural people all across this state.

Just before the year 2000, my family bought our land in West Newfield, fulfilling what for me had been a lifelong dream. In 2006, the legislature allowed rule changes to the Natural Resources Protection and Shoreland Zoning Acts that have had an unfair and adverse effect on my ability to use and enjoy my property. These after-the-fact changes have altered my dream and had they been in effect in 1999, I would not have purchased the property, on which I now reside, for the price that I paid.

I ask you to support LD 1810. I know this bill is only prospective and will not help me in regaining that which I feel was unjustly taken from my family, but it will help to ensure that any future legislation will have to take a fair look at what the property owner stands to lose and at least partially compensate them. It will help ensure that the people of Maine, in whose name our property is taken, are asked to step up and help share in the costs associated with protecting natural resources from the people who actually own and rely on them.

Time and again you hear these takings justified by the tens of millions of dollars in economic activity reliant upon these lands, but never do you hear that much of it is based on the free access that Maine’s property owners give. Time and again you hear that compensation must not be given as it will cost the state millions, but never do you hear that those same millions are now forcibly taken from unwilling victims by the power of a bullying state and an unelected bureaucracy.

My family’s property, which for us is ultimately the largest part of what amounts to our savings, should not be treated as a resource to be had for free and doled out to the politically connected and powerful. Our property is our resource and any number of events going forward could increase our dependence upon it. It is the height of injustice to forcibly take from my family that which we have worked for and not offer fair compensation. If the people of this state feel so strongly that someone’s belongings must be taken to protect some vital aspect of the state then they should be willing to pitch in — otherwise no taking should occur.

Our Constitution, the framework of laws drafted by the founders to protect the citizens of this country from overzealous government, is seemingly not good enough; the statement “private property shall not be taken for public uses without just compensation” is apparently not clear enough. Please send this bill forward to help minimize future injustices.

Offering testimony in opposition to the bill was Dan Amory, an attorney, who testified on behalf of more than 40 attorneys against LD 1810. His remarks follow:

Sen. Hastings, Representative Nass, and members of the Committee. I am Dan Amory, an attorney with Drummond Woodsum, and I am here to speak in strong opposition to LD 1810.

As part of my remarks, I am submitting to the Committee a letter signed by more than forty members of the Maine Bar in opposition to LD 1810. This letter is signed by five former Maine Attorneys General, a former Chief Deputy Attorney General, several former Assistant Attorneys General, as well as lawyers from across the state representing hundreds of years of career experience in public and private practice.

As stated in the letter, we believe that LD 1810 would impose a costly but unfunded burden upon Maine taxpayers, the Maine Attorney General, and the Maine court system, and would substantially impair the enactment and enforcement of new environmental and land use laws that future Legislatures deem necessary to protect the public.

The bill creates a new cause of action separate and distinct from what is provided by the Maine and US Constitutions, as reflected in more than 100 years of case law. The attorneys who signed this letter, including two constitutional law professors, urge you in the strongest possible terms not to take this step. The bill represents a radical departure from settled Constitutional principles regarding the “taking” of private property rights, and would thrust Maine into uncharted waters and costly litigation.

I have practiced commercial law for almost forty years, representing lenders, owners, and developers in transactions both in Maine and nationally ranging from a few hundred thousand dollars to, in the context of Indian gaming, in the billions. Here are likely real-world consequences of LD 1810 if it were enacted:

First, the State would never have the money, resources or incentive to contest a regulatory takings claim. The State could never take the risk that a substantial judgment would be entered against it for compensation and attorney’s fees, and the Attorney General’s office would not have the appraisal and other resources needed to contest the claim. That means that any property owner that makes a regulatory takings claim would probably get a “takings variance,” exempting the property owner from laws that apply to everyone else. This is exactly what happened under Florida’s regulatory takings law, the Bert Harris Act.

Second, this bill will apply to large industrial facilities as much as small property owners. Do you really want to make State regulators waive laws enacted by future Legislatures to control the siting of nuclear power plants, open pit mines, or hazardous waste dumps?

Third, the process spelled out in LD 1810 is entirely private: abutters and other members of the public have no way to be heard on whether a law that applies to everyone else should be waived, and what the impacts of that waiver may be on neighbors, neighbors’ property values, and the community. There is no judicial or other review. General and public laws enacted by you on behalf of the People of Maine could be waived privately and in secret. Before a town grants a zoning variance, it must give notice and hold a hearing, and the variance is subject to court review – but this bill contains no similar requirement for public notice or hearing before property owners, including developers of large commercial or industrial facilities, granted a “takings variance.”

Some suggest that LD 1810 is consistent with Florida’s Bert Harris Act, but it is substantially different; and in ways that would make its application more problematic. LD 1810 has a completely different threshold for establishing a regulatory takings claim; requires a jury for cases that go to trial; includes a vexing cumulative claims provision; has a longer statute of limitations; does not require informal dispute resolution before a claim can be filed; requires narrow construction of an exception for public health and safety; and is rife with ambiguous standards. These differences increase the likelihood of costly litigation, and further subvert the ability of the Legislature to enact laws to protect Maine people, communities, and the environment. A more detailed description of these differences is provided in materials to the Committee.

For all these reasons, as well as those set out in more detail in the letter, I and the Maine attorneys who signed the letter urge you to vote against LD 1810.

Members of the public who are still interested in submitting testimony can do so by submitting testimony to committee members either individually, or by e-mailing or sending multiple hard copies to Committee Clerk  Susan Pinette, Committee on Judiciary, c/o Legislative Information, 100 State House Station, Augusta, ME 04333. They can also email testimony to the clerk at susan.pinette@legislature.maine.gov. The clerk is not allowed to print out e-mailed copies but is required to forward e-mails to members.

Members of the Joint Standing Committee on Judiciary include:

Senator David R. Hastings III (R-Oxford), Chair
Senator Richard G. Woodbury (U-Cumberland)
Senator Cynthia A. Dill (D-Cumberland)
Representative Joan M. Nass (R-Acton), Chair
Representative G. Paul Waterhouse (R-Bridgton)
Representative Michael G. Beaulieu (R-Auburn)
Representative Ralph W. Sarty, Jr. (R-Denmark)
Representative Bradley S. Moulton (R-York)
Representative Leslie T. Fossel (R-Alna)
Representative Charles R. Priest (D-Brunswick)*
Representative Maeghan Maloney (D-Augusta)
Representative Megan M. Rochelo (D-Biddeford)
Representative Kimberly J. Monaghan-Derrig (D-Cape Elizabeth)

*Ranking Minority Member