AUGUSTA — The Legislature could soon approve a controversial regulatory takings bill that was largely drafted by a lawyer who could financially benefit from its enactment.
The bill, LD 1810, is designed to compensate landowners if a state regulation diminishes more than half of the market value of their property. Proponents of the measure say the bill would empower landowners victimized by land-use regulations that restrict their ability to use their property.
Opponents said the bill would unleash a floodgate of litigation and effectively freeze land-use regulations.
The Maine House of Representatives late Wednesday gave the bill preliminary approval on a mostly party-line vote. The Senate was scheduled to take up the bill Friday.
Most House Republicans supported the measure, saying the bill was a check against overly aggressive land-use regulations.
Meanwhile, Democrats during floor speeches took sharp aim at the bill's author: A Pierce Atwood attorney specializing in regulatory takings law.
The bill has undergone various iterations and committee amendments. A similar proposal was drafted last year. In each instance Catherine Connors, a Pierce Atwood Attorney, played a significant role in crafting the bill. Connors also served on the study group commissioned last year to explore takings legislation.
Her participation on that panel made it so she didn't have to register as a lobbyist with the Maine Commission of Governmental Ethics & Election Practices.
However, some have accused Connors of advocating for the bill. Last weekend Connors and the lobbyist for the Maine Association of Realtors discussed the measure on radio segment on WGAN.
Connors' involvement has become rhetorical weapon for Democrats. During Wednesday's debate in the House of Representatives Rep. Bob Duchesne, D-Hudson, opened his floor remarks saying he wanted to talk about the "four branches of government: executive, legislative, judiciary and Pierce Atwood."
"Here you have a bill that is written by lawyers, for lawyers," he said.
Duchesne also opposed the bill on technical grounds. He said that while the bill exempted future municipal regulations, it effectively removed newly enacted local control over regulations in territories governed by the Land Use Regulation Commission.
Democrats and environmental groups also disputed claims that the bill was designed to benefit property owners.
"The thing I dislike most about this report, is that sometimes the property owner wins, sometimes the taxpayer wins," Duchesne said. "But the lawyer always wins."
The bill is sponsored by Rep. Andre Cushing, R-Hampden. Cushing said Thursday that the measure was meant to give landowners more leverage when the state adopted strict regulations.
"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," he said.
He added, "This is not about cashing in on state regulations. In the vast majority of cases, the problem can likely be solved by granting a waiver to the regulation or some other practical accommodation."
Cushing's backing of the measure has given it new life. Last month a majority of lawmakers on the Judiciary Committee voted against the bill, opting instead to create a standing committee to address onerous land-use regulations.
The move came after lawmakers expressed concern over new litigation and increased costs for the Maine Office of the Attorney General to defend the state if a landowner sued.
Rather than vote to kill the bill outright, Rep. Bradley Moulton, R-York, and Rep. Charlie Priest, D-Brunswick, crafted a bipartisan amendment to essentially make last year's Regulatory Fairness Committee a standing legislative committee. The panel would meet at least twice a year to hear complaints about regulations that were affecting landowners. It would also have the power to recommend legislation to address those issues.
However, a minority of lawmakers on the panel advanced a second report that would allow a landowner to sue if a mediation process failed. Independent appraisers would determine devalued property, while awarded damages could not exceed $400,000.
The bill on Wednesday nearly failed its first vote in the House. Three Democrats voted with the GOP to support it. The vote was initially tied, but at least one Republican, Rep. Gary Knight, R-Livermore Falls, changed his 'no' vote to 'yes' after he was pressured by several GOP lawmakers.
The Legislature resoundingly rejected a takings bill 17 years ago, as have a host of other states. However, a few states, including Florida, have adopted takings laws.
LD 1810 is closely modeled after the Florida law, which supporters say hasn't produced the deluge of lawsuits that opponents claim will occur in Maine. Environmental groups, however, say there have been enough lawsuits to cause concern. They also note that Florida has witnessed a freeze in land-use regulations.
Similar takings bills have been advanced by the American Legislative Exchange Council, a national group funded by corporations that draft model legislation.