Senator Burns, Representative Hobbins, and members of the Judiciary Committee. My name is Pete Didisheim. I am the Advocacy Director for the Natural Resources Council of Maine, and I appreciate the opportunity to testify in opposition to LD 162 and LD 309.
For many of us here today, consideration of these bills is déjà vu all over again. The Maine Legislature has considered and voted against so-called “takings” bills like these at least seven times over the past 20 years. Opposition to these bills has been bipartisan, including most recently in 2013 when this committee considered two bills nearly identical to the ones before you today.
A similar pattern has played out across the nation. Takings bills were introduced in many states in the mid-1990s, and have cropped up occasionally since, and the record shows that they have been defeated time and time again—and for good reasons.
These types of bills could result in thousands of compensation claims against the state, demanding millions of dollars in payments from Maine taxpayers, creating a cascade of lawsuits, and undermining the ability of the Maine Legislature to make prudent land use decisions to protect the interests of Maine people.
The State of Oregon had a taste of the consequences when it adopted Measure 37 in 2004, and then repealed it two years later, but only after 7,000 claims for compensation had been filed, totaling nearly $20 billion, and resulting in more than 400 lawsuits.
LD 162 is similar to the disastrous measure adopted in Oregon. It also closely resembles bills introduced in 2011 (LD 1135) and 2013 (LD 1039) here in Maine—both of which were defeated unanimously by the House and Senate.
LD 162 would create vast opportunities for landowners to demand payments from the State and towns, because the bill applies to laws enacted at both the State and municipal levels. The bill would apply retroactively, covering laws dating back to when the property was first purchased by the landowner or a family member; it has no threshold for loss of property value, which means it would open the floodgates of compensation claims; it would allow property owners to simply demand payments based on self-asserted reductions in property value; it allows demands for payments without the landowner even needing to apply for a permit first, to determine whether their proposed use of the land would be denied; it would allow the State to waive the application of Maine law for some landowners if appropriated funds were not available to the State to pay the compensation claims; and it would allow landowners to violate Maine law if they didn’t receive compensation payments within 180 days.
And since LD 162 provides no money for this remarkable new landowner payment program, the only real remedy available would be waiving Maine laws for individuals and corporations that wanted to avoid land use laws. Such waivers of the law would destroy the integrity of existing laws, spurring lawsuits by abutters and other interested parties who are harmed by such waivers. LD 162 also would undermine the ability of the Legislature and towns to enact new land use laws through a requirement that any such regulations must include funding to cover any landowner payments that may be demanded.
Clearly, the fiscal, legal, and policy issues raised by LD 162 are massive, which is why bills like this one have been rapidly dispensed with by Maine lawmakers in the past.
LD 309 also is fatally flawed, with an array of legal complexities and untested provisions that are guaranteed to straddle the State with financial burdens, clog the courts with lawsuits, and hamper the ability of the Legislature to enact future laws to protect the interests of Maine people.
LD 309 is unlike any bill adopted anywhere in the nation. It is, however, essentially identical to legislation that was considered and defeated by Maine lawmakers in 2012 (LD 1810) and 2013 (LD 1450). Drafters of the bill attempted to deal with some of the most glaring problems raised by simpler takings bills, like LD 162, but the result is just a different type of hornet’s nest.
Attached to my testimony is a list of 30 major problems and confusing provisions in LD 309. I urge you to review these issues. Also attached to my testimony is a letter submitted to this committee in 2012 by 43 Maine attorneys who urged lawmakers to vote against a bill (LD 1810) that was very similar to LD 309. That letter was signed by five former Maine Attorneys General, several Assistant Attorney Generals, two constitutional law professors, and other Maine lawyers with hundreds of years of experience representing public and private parties.
Economists also have weighed in against takings bills like these, as you’ll see in the op-ed attached to my testimony from today’s Bangor Daily News, by Bowdoin College economist Myrick Freeman, which I also encourage you to read.
I believe that if you carefully read these bills, and if you carefully consider the list of issues that have been raised in my testimony and the statements of others, you will be left unsettled and uncertain about what the result would be if these bills were enacted. That’s what has happened every time the Maine Legislature has gotten to this point in the past, and for good reason.
In sum: LD 162 and LD 309 are filled with provisions that are confusing, problematic, costly, and untested. They would cost Maine taxpayers millions of dollars that would have to be diverted from other programs. The bills would create boundless opportunities for creative lawyers to file cases against the State. And future lawmakers would face major new constraints on their ability to protect the interests of Maine people.
I urge you to vote Ought Not to Pass on both of these bills. I appreciate this opportunity to testify and would be glad to answer any questions that you may have.