Committee works to sort out 'takings' bill


by Terrilyn Simpson

In a hearing room with every seat filled and no standing room remaining, members of the public jostled for an opportunity to speak before the state Judiciary Committee on LD 1810.

The bill, encumbered with a name suggesting a dry and cumbersome debate — An Act to Implement Recommendations of the Committee to Review Issues Dealing with Regulatory Takings — prompted anything but. The proposed legislation 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.

A hundred or more citizens filled the hearing room and overflowed to the hallway and into rooms on both sides of the judiciary hearing room, waiting hours to speak, with the first two given over to the testimony of designated experts and lengthy question and answer sessions.

Carol Weston, a proponent of LD 1810 and the state director of Americans for Prosperity, expressed disappointment that many who’d driven hours to testify, had to leave without doing so because they had long return drives with work and chores waiting.

The legislative remedy suggested in LD 1810 is the result of a study committee formed after two previous bills seeking similar resolution failed to garner sufficient legislative support. Though the two bills did not gain the ought to pass recommendation required to propel them to full legislative votes, the subject of private landowner rights was deemed significant enough to warrant a further look.

Senator Mike Thibodeau (R-Waldo County) chaired the study committee.

Thibodeau disagreed with opponent contentions the bill would offer unfair advantages to large landholders and industries. Because, he said, the regulation considers damage (of 50 percent reduction in value) to the “whole parcel, it potentially allows for much more protection for small property owners.”

The bill, said Thibodeau, offers a measured approach. And because it’s prospective (“only to burdens from regulations enacted in the future,” according to the bill summary), he finds the glut of lawsuits predicted by opponents unlikely. “But if you go and buy a piece of property today as an investment, and new regulations are passed by the 126th Maine legislature, you don’t want to find you invested in a worthless piece of property.”

But that doesn’t mean, said Thibodeau, that a regulation would just be disregarded. And it doesn’t automatically mean money doled out in compensation. It might mean, he conjectured, “offering variances,” so that a landowner who found himself owner of property subject to new regulations, to the point of diminishing the value by more than 50 percent, might get a variance on a setback, for instance. A setback of 200 feet, that would significantly impact the value of a relatively small property, might be negotiated down to a lesser number of footage that could offer protection but not restrict a landowner’s usage prohibitively.

Thibodeau, anticipating a favorable outcome, sees the bill as necessary to small landowner protection. It is, he said, “the only way to parse it out and be fair.”

The large number of people who testified were split fairly equally between pros and cons, with a single individual, Romey Haines, a farmer from Fort Fairfield, neither for nor against. Describing himself as owner of “a little farm that’s been there since 1820,” Haines said he wasn’t there to take a stand one way or the other. “But you run over us little guys over and over and over again….we all need to take responsibility.”

The Maine Coast Heritage Trust has argued that LD 1810 takes too much power away from the legislature. “Experience in the several other states (e.g., Florida and Oregon) that have enacted this kind of ‘takings’ law is that legislatures simply decide not to enact new laws or regulations in the first place, even if they might be justified by the facts; they prefer to avoid the risk of litigation and compensation.”

Another critic worried that the bill would give “meaningless authority. The state cannot afford to leislate or litigate…”

Another called the bill a “lawyer’s dream, an appraiser’s dream…”

Opponent Bart Hague of Waterford categorized LD 1810 “a draconian bill that would paradoxically violate my landowner rights…it would introduce unpredictability….”

“There has to be a compromise. There has to be a balance,” said Representative Joan Nass (R-Acton), Judiciary Committee co-chair. Also optimistic about the potential success of the bill, Nass anticipates a rigorous work session on March 1 with significant rewrite before the bill is transformed into a final version. It’s likely, she says, that edits will include size restrictions on the amount of acreage covered and consideration given to what the land is used for.

As a resident of a rural area, Nass said she understands that people count on their land as “their legacy for their children” or the thing that will provide for their retirement, or to earn a living as a farmer or a woodlot owner. LD 1810 is not a bill for big industry. “We’re not dealing with sewage plants. We’re not dealing with health issues.”

Nass said when someone got up and during testimony asked “‘What’s the big deal if someone loses 50 percent of their land?’” the hair stood up on the back of her neck. “What would they do if someone came down their street and took 50 percent of their property.”

A legislator who refuses to have a computer or any piece of electronic equipment in front of her while constituents are testifying — because “People deserve to have you make eye contact” — Nass emphasizes the role of LD 1810 in people holding on to their land and in legislators helping to protect those rights. Having said that, she added there “has to be compromise; there has to be balance.”

But Pete Didisheim, Senior Director of Advocacy for the Natural Resource Council of Maine, offered a markedly different perspective. Didisheim, who served on the regulatory takings study committee, also co-authored the minority report in opposition. He offered seven arguments: no funding provided; costly litigation guaranteed; the 50 percent diminution standard not consistent with the constitutional definition of taking; that waivers would undermine Maine law; the difficulty of the legislature passing protective legislation if the bill passes; a concern that municipalities would not be immune because of the impact of state regulations; and finally, his premise that proponents had failed to demonstrate a problem warranting legislation.

The work session for LD 1810 will be held on March 1 at 1:00 in Room 438 of the State House.