May 21, 2018
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Hours of testimony heard over bill that would allow property owners to sue if regulation cuts value of property

By Abigail Curtis, BDN Staff

AUGUSTA, Maine — It seemed as if decades of simmering frustrations over Maine’s private property rights and environmental regulations came to a boil Tuesday afternoon during a public hearing on a controversial takings bill at the State House.

Lawmakers on the Judiciary Committee heard hours of passionate testimony both in favor of and against LD 1810, a bill that would allow landowners recourse when their property value has been harmed by environmental or other regulations.

Over the last 17 years, state lawmakers several times have rejected bills similar to this one, titled “An Act to Implement Recommendations of the Committee To Review Issues Dealing with Regulatory Takings.”

Those opposed argued that the bill lacks transparency and would weaken Maine’s environmental protections, create a confusing regulatory system that would take a toll on business development and open up the state to the possibility of expensive lawsuits.

But those in favor of the legislation said, sometimes through tears, that overzealous state regulations have harmed their property values and their lives. Lisa Hunt, whose family owns a sawmill in Jefferson, cried as she said that 40 acres of her property has been turned into a deer wintering yard.

“That’s not fair,” she told the committee. “We could have used that land in the deer yard as collateral. But back in 2006, we did not have a way to question [state government].”

Another passionate voice — this one speaking against the bill — came from Ron Joseph of Camden, who described himself as a wildlife biologist, a wilderness guide and a fifth-generation Mainer. He said that LD 1810 is part of this Legislature’s “unabashed and relentless” assault on the environment.

“Maine’s environmental legislation is not the enemy of business growth,” he said. “We should embrace our natural heritage, not destroy it. Nature-based tourism pumps millions into [our] pockets … once we lose our natural beauty, there’s no bringing it back.”

As written, the bill would establish standards for relief when state regulation imposes an “inordinate burden” on a property owner, according to the legislative summary.

It would not be retroactive, but instead would apply to regulations that have yet to be enacted. Property owners who can show that the fair market value of their entire parcel of land has been diminished by at least 50 percent because of state regulations may apply to the state for relief. They could file suit for financial compensation — and if the state does not have the money to pay the landowner his claim, officials could grant variances to the regulation in question.

The proposed law was drafted in part by Cathy Connors of the Pierce Atwood law firm in Portland. She described the bill as a compromise.

“It focuses on the most egregious harm to small landowners,” she said. “A lot of people in Maine don’t have a lot of money. What they have is land … all they want is to keep the value of the land.”

It has been primarily modeled on a Florida law, the Bert J. Harris Private Property Rights Protection Act, she said, adding that in 12 years there were only 200 cases filed against the state of Florida.

“In the end, very little money was actually paid,” she said. “Some people say that 1810 is a full employment law for lawyers. The actual evidence in all the other states with similar laws is contrary.”

But others said that the bill would be dangerous for Maine.

“This ‘pay or waive’ concept would have serious implications, creating an irresistible incentive for landowners to inflate their development plans in order to make compensation claims against the state,” Thomas Abello, senior policy adviser for The Nature Conservancy, said in his written testimony to the committee. “It is important to recognize that the very purpose of many land use and environmental laws is to protect the community, including the neighbors whose property values would be jeopardized by regulatory waivers granted to adjoining developers. This simply isn’t fair and certainly does nothing to protect private property.”

There was little common ground found during the afternoon of testimony in Room 438 at the State House. Lisa Turner of Laughing Stock Farm in Freeport testified that environmental regulations such as wetland setbacks can be devastating to small organic farms like hers.

“I’m very glad that we’ve cleaned up the environment from what it was when I was a kid,” she said. “Our organic farm isn’t a risk to the environment. But the ever-encroaching environmental laws are a risk to our organic farm.”

But Sharon Tisher of Orono, a University of Maine professor who was speaking on behalf of the Maine Organic Farmers and Gardeners Association, disagreed. The association is strongly opposed to the bill, she said.

“[It would] waive important environmental statutes and create a great patchwork of environmental regulations that would ultimately significantly depress property values,” she said.

The Judiciary Committee will hold a work session on LD 1810 at 1 p.m. Thursday, March 1.

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