Here’s the way the story goes: A couple buys a beautiful piece of rural real estate in hopes of eventually fulfilling a dream— to have their children build nearby homes.
Ten years later, the children are grown and ready to build their homes, but the rules have changed. What they thought was just a low, wet spot is now a vernal pool with a 250-foot forbidden zone.
That would be maddeningly unfair, and it’s a sad story that has circulated in one form or another for many years.
But real examples of this happening are about as scarce as hens’s teeth. In other words, they are more anecdotal than real.
The Legislature wrestled again with this largely mythological beast this year when Rep. Andre Cushing, R-Hampden, submitted a complex “takings” bill that would have resulted in a train-wreck of litigation.
Cushing said his bill “would allow a landowner to file a complaint if a state regulation decreased the value of his or her property by more than half.”
If the landowner was found to have a valid claim, the state (i.e. taxpayers) would be forced to compensate the landowner.
That sounds well and good in theory, but the reality is a little different.
Virtually all permit applications filed in Maine are granted.
For example, Natural Resource Protection Act Permits have been approved 99.7 percent of the time. Of 4,448 applications, only 32 have been denied over the past 10 years.
The batting average is even better for Site Law Permits: 2,647 filed; two denied.
And that notorious Vernal Pool Permit forbidding construction inside the 250-foot consultation zone, 16 applications filed and zero denied since 2006.
The same goes for Inland Wading Bird and Waterfowl Habitat, and it’s nearly as high for Shore Bird Habitat permits.
Cushing’s far-reaching “fix” would have opened the floodgates to lawsuits by landowners trying to cash in on theoretical “takings” that reduced the value of their properties.
The state would be left defending against imaginary shopping centers and condominium projects filed by people â with no intention of ever building â any time it changed land-use regulations.
His plan was opposed by five former Maine attorneys general as well the current Republican attorney general, William Schneider.
Instead, the Judiciary Committee majority came up with an alternative: creation of an ongoing Regulatory Fairness Committee that would meet twice a year to hear complaints about land-use regulations. The committee could refer issues to the Legislature for remedy.
The majority proposal would also preserve the current Land Use Mediation Program, which Gov. Paul LePage proposed eliminating. That program helps sort out intractable problems between landowners and regulators.
Tellingly, the program has only been asked to conduct five mediations since 1996, and all have resulted in signed agreements.
But a minority of Judiciary Committee members plan to submit an amendment next week that largely returns the bill to Cushing’s original proposal.
This would result in a chaotic rush to the courthouse to challenge decades of legal precedent.
The House, Senate and governor should accept the majority proposal as an improvement to an already solid land-use regulation program.
When it comes to land-use laws, thoughtful improvement is preferable to radical, untested change.