by Pete Didisheim, Senior Director of Advocacy
Senator Hastings, Representative Nass, 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 1810.
I served as a member of the regulatory takings study committee. On January 24, 2012, Representative Priest and I presented the committee’s minority report and we urged the Committee to not proceed with legislation. That remains my position. The Minority Report provides seven arguments against this bill (pp 10-16 of the report), and I will summarize those arguments here.
1) No funding providedâLD 1810 supposedly establishes a landowner payment program yet provides no money to actually pay landowners. The bill, if enacted, would cost the state significant funds just to defend against litigation. But without a compensation fund, the only real remedy available would be to waive Maine laws.
2) Costly litigation guaranteedâLD 1810 would be a lawyer’s paradise. Riddled with provisions that are confusing and untested, the bill would create a boundless array of opportunities for creative lawyers to file cases against the State.
3) Diminution standard has no foundation in the U.S. ConstitutionâThe 50% diminution standard in LD 1810 is not consistent with the constitutional definition of a taking, as interpreted and applied in thousands of judicial opinions. LD 1810’s allowance for cumulative regulations to meet the 50% standard would put Maine in entirely uncharted waters. No standards exist that would guide appraisers or attorneys in identifying, assessing, and aggregating these cumulative impacts.
4) Waivers would undermine Maine lawâThe idea that Maine laws would apply to some landowners but not others has sweeping implications. The “pay or waive” scheme in LD 1810 would punch holes in the application of Maine’s laws across the landscape. Some Maine people would be required to comply with Maine laws, while othersâincluding neighborsâcould get waivers. This concept raises issues of fairness, property value impacts on others, and the integrity of Maine laws.
5) Legislature would lose ability to protect Maine peopleâThe apparent goal of this bill is to keep the Legislature from legislating on land use issues. It would be difficult for the Legislature to pass any land use law, since the ambiguities in LD 1810 could invite compensation claims for almost any new land use policiesâtriggering fiscal notes that would result in the defeat of the proposals. The scope of impact would be very broadâpotentially affecting State efforts to protect deer yards, regulate the location of casinos, site energy projects, regulate mining, and all manner of challenges that may face the state. [See attached scenarios of possible impacts.]
6) Municipal exemption won’t actually exempt municipalitiesâLD 1810 attempts to exempt municipal ordinances and zoning, but towns would still feel impacts and suffer consequences each time a waiver were granted. And, because towns implement State-mandated laws such as shoreland zoning, municipalities and the State would be thrown into conflict around compensation claims.
7) Failure to demonstrate that there is a problemâProponents of LD 1810 have failed to document a problem for which this extreme departure from the constitution is an appropriate response. Data does not support the notion that the Department of Environmental Protection is denying permit applications. Quite the contrary, the DEP has processed 7,095 Site Law and Natural Resource Protection Act permits over the past 10 years, and approved 99.5% of them. These data substantiate the fact that Maine people who apply for permits to realize economic value from their property are almost always guaranteed to get an approval.
There has been speculation about what the waivers provided by LD 1810 might look like. One need only to consider what has happened in Oregon and Florida to find out:
- In Oregon, the state waived laws in lieu of paying a $203 million claim so that a landowner could build a pumice mine, geothermal plant, and large-scale resort on an inholding in a National Monument.
- In Citrus County Florida, regulations were waived to avoid a paying a $730,000 Bert Harris Act claim, allowing a developer to build a fifty-unit subdivision with 35 docks.
- Faced a $38 million Bert Harris Act claim, Jacksonville County Florida waived regulations and allowed a massive oceanfront development.
- Collier County Florida waived regulations in the face of a $238 million Bert Harris claim, allowing a developer to build a golf course around a bald eagle nesting site.
There are good reasons why the Maine Legislature has consistently voted in a bipartisan way to defeat takings bills such as LD 1810 over the past 17 years. These same reasons explain why the Bert-Harris Act is not exactly spreading like wildfire. No state in New England has a law anything like this. No state within 1,000 miles has a law like this. And no state in the country has a law exactly like this.
Some have called LD 1810 a Pandora’s Box; we agree. LD 1810 would be a risky and radical experiment with unknown and unknowable fiscal and policy consequences. We urge you to vote Ought Not to Pass on LD 1810. Thank you for your consideration of these comments, and I would be glad to answer any questions that you may have.