I have found recent statements in the press and at the public hearing on the regulatory takings bill, LD 1810, misleading on many counts.
Contrary to the opinions of some, the primary beneficiaries of LD 1810 would be small landowners, not large landowners.
They would be the farmers who planted trees in their fields but now want to cut those trees and return the land to agriculture but new rules mean they cannot do so. It would be the moms and dads who have planned to give a few acres to their grown children to build homes nearby only to find new regulations make that impossible. It would be the small woodlot owner who planned to harvest her woodlot to support her retirement only to find she cannot cut her trees because it has since become a deer wintering area.
How do I know this law would benefit primarily small landowners? Because I was a member of the Regulatory Takings Study Commission that constructed the present bill and voted 8-2 to present it to the Judiciary Committee.
Most folks would agree that as a matter of fairness you don’t take something that belongs to someone else without paying for it. This applies to government as well. If the government takes your land to build a road, a school, or a town office, they pay you for it. If you don’t want to sell it, they may take it through eminent domain, but either way they pay you for it.
But what if the government doesn’t want to take title to your land, but wants to require you to manage it for public purposes rather than your own? Therein lies the rub. You bought it, perhaps paid a premium for it because it provided special value, and continue to pay the taxes on it going forward, but now find you cannot use it for what you intended. Most of the land’s value has been taken for public purposes, but you are expected to cover the loss all by yourself. Is this fair? Of course not.
The Regulatory Takings Committee that developed LD 1810 worked very hard to assure that its bill was fair both to property owners who lose land value, and to the public who would reimburse landowners when they could no longer use their land for what they bought it for.
So how did we do that? First we made it clear that there would be no reimbursement for costs incurred by landowners to protect public health or safety. We made it clear that all presently existing regulatory takings would not be eligible for compensation, not because that wasn’t justifiable, but because the public simply couldn’t afford it.
We made it clear that a regulatory taking had to be substantial (at least 50 percent of total land value) before a landowner could even seek redress, and we made it clear that demonstrating the 50 percent taking would apply to the entire parcel’s value, not just the footprint of land within the regulated area.
That is why large landowners would get very little relief under this bill. Their parcels are generally very extensive, hundreds or thousands of acres, with only a very small portion bordering or containing a regulated area. It would be very difficult for them to demonstrate a 50 percent taking on such large parcels and qualify for compensation. And remember, since LD 1810 is prospective only, everything presently regulated would not be eligible for compensation.
I think everyone should get behind this bill. It’s not only fair to landowners, but would help ensure that privately owned land would continue to be available to support the recreational and economic interests of the state.
Landowners who voluntarily open their land to the public not only support hunters, fishermen, hikers and bird-watchers, but also support the industries that cater to these recreational users, the sporting goods stores, the motels and restaurants and tourism in general. Landowners who feel the state is taking advantage of them by keeping them from using their land for what they bought it for are in no mood to share it with others, and increasingly are posting it in protest.
This is a good bill, patterned to embrace procedures that have worked well in other states. It deserves our support.
Clark Granger is a Christmas tree farmer and served as a member of the legislative study committee created to examine the issue of regulatory takings. He lives in Woolwich.