By David Carkhuff
Portland Daily Sun news story
Lawmakers will hold a work session at 1 p.m. today on controversial legislation that creates a process for landowners to receive financial compensation when state regulations diminish the value of their property.
“It does need tweaking,” said Rep. Joan Nass, R-Acton, Judiciary Committee co-chair, of the so-called “regulatory takings” legislation, which has sparked opposition from groups as diverse as the Maine Organic Farmers and Gardeners Association and Maine Audubon.
A hearing on the bill was held last Tuesday.
The Maine Farm Bureau Association is among the groups supporting LD 1810.
“For us, it’s a question of fairness,” said Jon Olson, executive secretary for the Maine Farm Bureau. “We don’t think it’s fair to take land out of production, sometimes land that has been farmed for generations, in order to protect environmental qualities without paying for it.”
Nass said, “We can’t just keep taking people’s land without compensation. There has to be a balance between the environment and people’s rights.”
“The bill proposes the determination of a regulatory taking based on evidence, supported by an appraisal, of a diminution in the fair market value of real property of 50 percent or greater caused by (the) regulation,” according to the legislation.
Pete Didisheim, advocacy director for the Natural Resources Council of Maine, said the bill would create a mare’s nest of liability and legal uncertainties.
“This is a radical piece of legislation that the state of Maine absolutely should not pass. The legislation is unlike anything that exists on the books in any state in the country and has very serious fiscal, budgetary, policy and environmental consequences,” he said.
Representative Charles Priest, D-Brunswick, and Didisheim presented an advisory committee’s minority report and urged lawmakers to not proceed with the legislation, but they were outvoted, 11-2.
Nass pointed to the study committee’s lopsided vote as evidence that the bill had support. Didisheim said the outcome was predictable.
“The study committee was stacked,” he said.
“They didn’t hear from the public, they didn’t get expert testimony, it was pretty superficial treatment,” he said.
States where similar bills have passed wrestle with inequities, and the biggest beneficiaries are “special interests” and their lawyers and appraisers, Didisheim said.
“This is a pay or waive scheme where if the state doesn’t have the money to pay the landowner … then the law would be waived for that landowner,” he said.
The law could affect the state of Maine’s decisions on casinos, neighborhoods in flood zones and myriad other land-use issues, Didisheim said.
Forty-three Maine attorneys, including five former Maine AGs, wrote a letter urging defeat of the legislation, Didisheim said.
Gov. Paul LePage’s deputy counsel testified in support of the bill, but “they have not had a highly visible presence in the process,” he said of the LePage administration.
Nass said she bought a farm to “protect the land,” and that environmental groups are less interested in her conservation practices than in her political philosophy.
“I live in a rural town. We have farmers who are counting on giving that land to their kids,” she said.
Olson said the law would apply only to new land-use regulations and only those initiated by the state.
“For us, it’s very, very simple. If you take land out of production, land that has been farmed for several generations, then it needs to be compensated,” he said.
Didisheim said testimony in favor of the bill consisted of a “parade of anecdotes” to support the contention that property rights are being violated.
“This is not a state that is blocking people from pursuing economic activity on their property,” he said.
But Olson said farmers deal with wetland regulations and other restrictions.
“There has been land taken out of farming production to protect vernal pools and to protect wading bird habitat,” he said.
Nisha Swinton, Maine organizer with Food & Water Watch, said, “This legislation is known as a ‘takings bill’s because it would require that Maine taxpayers pay corporations to obey the law. It could force us to pay industry for the ‘inconvenience’s of having their land use activities regulated or restricted on behalf of public safety or environmental protection.”
MOFGA Board President Sharon Tisher said, “Development practices that destroy wetlands, overpopulate waterfront property, result in contamination of our soils and groundwater, and drive up the price of real estate, will directly adversely impact the quality of life in Maine, and our ability to continue the practice or organic farming and gardening in Maine.”
To read LD 1810, visit www.mainelegislature.org/legis/bills/bills_125th/billtexts/HP133401.asp.