March 14, 2012

GEORGE SMITH: 'Takings' bill amendment offers a bipartisan compromise

George Smith

Recognizing that the government should not be able to take most of the value of private property without compensating the owner, the Legislature has been wrestling with L.D. 1810, Rep. Andre Cushing's "takings" bill.

Lest you think the Legislature is a pit of ugly partisanship, take this as a demonstration that the art of compromise and collaboration is still practiced there. Occasionally.

Cushing, R-Hampden, described his bill in a March 1 column in this newspaper, writing that it "would allow a landowner to file a complaint if a state regulation decreases the value of his or her property by more than half. If the landowner has a valid claim, then the state could compensate the owner with payment based upon a professional appraisal or with a variance to exempt the property from the new law."

Cushing called his proposal, "a reasonable solution to a major injustice." Others called it a lawyers full-employment bill.

The bill had a lot of support from powerful interests, including real estate developers, the Maine Forest Products Council, the Maine Farm Bureau, the Small Woodland Owners Association of Maine.

On the other side of the line were the state's major environmental groups. Pete Didisheim with the Natural Resources Council of Maine told the Lewiston Sun's Steve Mistler that L.D. 1810 is a "radical bill," a "first-in-the-nation experiment" that creates "a new entitlement for landowners" who would be able to seek payments from Maine taxpayers for asserted losses in property values.

At the public hearing, however, a lot of other voices expressed concerns, starting with William Schneider, Maine's attorney general.

Schneider noted, "If this bill is enacted, a person would be able to initiate a lawsuit against the state by claiming that a regulation reduces the plaintiff's property value by 50 percent or more based upon theoretical developments or uses without having put any real effort into a project. ... We have no doubt that the bill if enacted would cause an increase in litigation."

Schneider listed several categories of regulations that would lead to "disputes in court over the interpretation and application of these exceptions." He also reported that the bill included provisions that are not available in any other state.

The Judiciary Committee also received a letter from 43 Maine attorneys, including five former Maine attorneys general, expressing their "strong concerns" that the proposal "would replace well-settled constitutional principles with untested statutory standards involving so-called regulatory takings," and "impose a costly unfunded burden upon Maine taxpayers."

Turns out some lawyers aren't just looking for more business.

Last week I waded through a 14-page report from Peggy Reinsch, legislative analyst for the Judiciary Committee -- and that's just the summary of the public hearing! This is a very complex issue, with vocal proponents and opponents. The original bill had significant problems and a number of amendments and suggestions have been offered.

It was the amendment offered by two thoughtful committee members, Reps. Brad Moulton, R-York and Charles Priest, D-Brunswick, however, that proved to be the right path for the committee to take.

A bunch of people deserves credit for collaborating on this amendment, including Sen. Tom Saviello, R-Wilton, Rep. Bob Duchesne, D-Hudson, and Didisheim of the Natural Resources Council of Maine.

The Moulton-Priest amendment creates a Committee on Regulatory Fairness, to provide a forum for ongoing legislative review of the effectiveness and fairness of land-use laws and regulations. The committee would regularly review information from the attorney general of public comments that a rule might result in a potential taking of real property.

This committee will receive information from landowners, including farmers and woodlot owners, about these concerns and will have the authority to submit legislation changing land-use laws.

The Land Use Mediation Program -- targeted for elimination by Gov. Paul LePage -- would stay in place and expand, making sure that landowners are aware of this service.

Last Thursday, the Judiciary Committee endorsed the Moulton-Priest amendment. It now will proceed to the full House and Senate. A minority of committee members will offer an amendment that is similar to the original bill.

The real story, however, is this: Republican and Democratic legislators, recognizing a concern but bothered about the complexity, uncertainty and cost of the original bill, grabbed one of the bill's strongest opponents, Didisheim, and came up with a reasonable solution that won the support of most of the original bill's opponents, including the Maine Municipal Association.

Just as the Judiciary Committee did, the House and Senate -- and LePage -- would be wise to grab the Moulton/Priest amendment and call it good. Because it is.

George Smith is a writer and TV talk show host. He can be reached at 34 Blake Hill Road, Mount Vernon 04352, or georgesmithmaine@gmail.com. Read more of Smith's writings at www.georgesmithmaine.com.

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