A "regulatory taking" happens when government land use regulations, such as vernal pool regulations and waterfowl habitat buffer restrictions, diminish a landowner's property value so much that it is the equivalent to a seizure of that land. Maine courts that have considered claims for compensation by landowners affected by burdensome land use regulations have established a standard that makes it virtually impossible for a landowner to receive any relief. In brief, under current law, if you can still pitch a tent or park a trailer on your property, no compensation will be granted. In reaction to this court-made standard for regulatory takings, a group of landowners came forward last year to support the creation of a statutory mechanism to provide relief to Maine landowners. Given the complexity of the issue, the Legislature created and funded a legislative study committee charged with making recommendations regarding regulatory takings.
The study committee's bipartisan, 8 – 2 report calls for the enactment of a statutory takings law patterned on Florida's takings law that has been working successfully for over 15 years. The report recommends the creation of a cause of action that would allow landowners, in certain limited circumstances, to sue the State to recover for lost property values that result from land use laws and regulations. This detailed report also supports providing two avenues of alternative dispute resolution that would allow landowners to pursue compensation without having to proceed to court.
The study committee's report will be formally presented to the Judiciary Committee, which has jurisdiction over this issue, on January 24, 2012. From there, the Judiciary Committee can introduce legislation to implement the recommendations of the study committee report, which would proceed through the regular legislative process.
Enactment of a regulatory takings law would be a major victory for Maine landowners, whether they make a living from their land or simply treat their property as their primary investment asset. A law conforming to the recommendations of the study committee would require the State to consider the fiscal impact on landowners when the State contemplates the creation of new land use laws. This legislation would not only give landowners some peace of mind that their investment was protected but also would inject an element of fairness into land use regulation by providing the possibility of compensation when regulation disproportionately takes from one landowner for the benefit of all.
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