Opponents of regulatory takings legislation predict 'avalanche' of lawsuits

AUGUSTA — In May, Jon Olson, the executive secretary with the Maine Farm Bureau Association, provided the Legislature's Legal Affairs Committee with what he believes is a textbook example of a regulatory seizure of private property.

Olson told the story of a Unity dairy farmer who had received approval and federal cost sharing to expand his field closer to a nearby brook. But over the course of the state permitting process the farmer learned that six acres fell into an inland wading bird protection zone.

The six acres could not be included in the farmer's expansion.

"Does this seem fair to you?" Olson asked.

That story and others are the public reasons lawmakers went to work on LD 1477, Maine's latest iteration of a so-called takings bill. It would allow landowners to file legal claims seeking compensation from the state for zoning and regulations that diminish the value of landowner's property by more than 50 percent.

Opponents say a takings bill goes beyond the compensatory rulings of the U.S. Supreme Court. They believe it will lead to a deluge of lawsuits, the threat of which could freeze state land-use regulations.

Such concerns previously stymied takings legislation in Maine and elsewhere. It is also one of the reasons that LD 1477 morphed into study group after support for the initial bill dissipated.

The study panel, which meets Monday, has been working toward legislation that could be considered next session. If successful, supporters say the bill will right a wrong done to landowners.

Supporters also say the bill will clarify takings following rulings in the mid-eighties by the U.S. Supreme Court that landowners have the same constitutional protection — the right to compensation — for regulatory takings as they do in land seizures via eminent domain.

Opponents say the panel is blindly accepting provisions that are nearly identical to the original bill. They also say that the group is being steered by Catherine Connors, an attorney specializing in land-use law at Pierce Atwood.

"She (Connors) is a takings attorney. If there’s going to be any beneficiaries to this, it’s going to be attorneys at Pierce Atwood and her," Pete Didisheim with the Natural Resources Council of Maine said.

Didisheim, who sits with Connors on the study panel, said the group has paid "superficial and incomplete attention" to the consequences of a takings law.

Connors disputes Didisheim's assessment. She said landowners would have to meet strict requirements in order file a lawsuit.

Maine first considered a takings bill in 1995, several years after the U.S. Supreme Court's series of rulings touched off legislation in many states. Approximately six states have adopted takings laws, but many others have considered and defeated them.

In 2004, Oregon voters overwhelmingly adopted perhaps the most infamous takings law. What happened there is what former Maine Attorney General Andrew Ketterer foreshadowed for the Pine Tree State when in 1995 he was asked to opine on the consequences of LD 1217, a bill Connors helped draft.

Ketterer said LD 1217 would "spawn extraordinary, even unprecedented, amounts of litigation involving potentially staggering fiscal impacts."

Those fears prompted the Legislature to scuttle the takings bill and create a dispute resolution process to deal with aggrieved landowners.

Oregon took a different route.

Under Measure 37, Oregon landowners filed 7,717 claims demanding compensation worth a total of $20 billion before voters in 2007 repealed most of the law. One landowner sued because he claimed the state's billboard ban prevented him from installing 54 billboards. Another said that zoning regulations prevented him from building a one-million-square-foot mall on protected farmland.

"Suddenly everybody had this development plan that they were pursuing," Didisheim said.

Only a fraction of the claims were paid, but the Oregon experience has become a cautionary tale for other states.

Committee documents and emails among panelists show that Connors is taking the lead on the Maine proposal, which is different than Measure 37. The latter allowed landowners to make retroactive claims. The Maine proposal would allow claims on new regulations that caused a taking.

"It’s a pretty high bar that we’re talking about, higher than anywhere else," Connors said.

Connors said the bar is too high now. Maine courts have ruled on regulatory takings, but Connors said the decisions have made it so that if a landowner can "put a trailer or have a picnic" on their property, they can't claim a regulatory seizure.

The proposal under consideration is modeled after a 1995 Florida takings law that was promoted by a Democratic governor and approved by overwhelming margins in that state's legislature.

Connors said the law has resulted in 202 claims and "a few dozen lawsuits."

The proposal she's drafting would include state regulations, not municipal ordinances.

That doesn't hearten Didisheim, who believes the intent is "to lock all land-use policy and law in place and only allow a weakening."

That's been the experience in Florida, according to a 2009 study by the Stanford Environmental Law Journal, which quoted several public officials and developers who said the Bert Harris Act has stymied zoning changes and been used by developers to expedite projects.

In 1999 a Tallahassee developer told the Orlando Sentinel that he used the law as a threat to get developments approved. The study also interviewed a developer attorney who said he threatened to assert claims "hundreds of times."

Didisheim said that dynamic could be a problem in Maine if it considers a statewide plan for future casino proposals. If certain areas of the state were zoned for casino development, Didisheim said, a landowner whose property sat outside the development zone could conceivably claim the regulation prevented them from building a gambling facility.

The same could apply to state efforts to create future deer wintering yards or decrease the areas currently designated for expedited wind power development.

He said a takings law could also discourage future lawmakers from reinstating laws that are repealed.

Didisheim fears momentum and political pressure is leading the panel toward a takings bill that will be considered next session. The original LD 1477 was supported by the LePage Administration and Republican leadership.

Connors said a bill was worth exploring. She brushed off claims her firm would benefit if a takings law led to a proliferation of lawsuits.

"I don’t think it’s going to open the floodgates," she said.

smistler@sunjournal.com

This article has been clarified to show that the bill currently being drafted goes beyond the compensatory takings rulings by the U.S. Supreme Court.

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Comments

 's picture

industrial wind

or decrease the areas currently designated for expedited wind power development.

ow....can't go against BIG WIND.

 's picture

That's one precious lot of

That's one precious lot of land you are homesteading, Alice. Million dollar views, southern exposure, a dream come true . Too bad , industrial wind has to ruin it for you and your following generations. There should be a law, or is THAT what Didisheim is talking about. Has he been to your place ?

 's picture

i had a plan

I had a plan and the land, I wanted to build fossil fuel free homes for vacationers.
Once you arrived in your vehicle; no more fossil fuels for a week or two or months or years.
On site solar systems still allow vacationers their electronics but they will learn how to use an egg beater for mixing ingredients.
They will experience silence on this southern exposed mountainside with nothing but raptors and wildlife above you.
The sound of water under the ground.

Alas, a Massachusetts company will ruin the area for wildlife and silence for ever more.

 's picture

Grammar IS important.

"She brushed off claims her . . . would benefit . . ."

Where are the editors? Publishing a news story that has not been reviewed for grammar sheds doubt on that story and on the reliability of the paper.

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