Senator Hastings, Representative Nass, distinguished 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 1135, “An Act to Protect the Rights of Property Owners.”
LD 1135 requires the State to pay landowners for any asserted decrease in property value resulting from land use regulations. If enacted, LD 1135 would impose huge costs on the state and municipalities, and almost certainly would give rise to scores of lawsuits. This bill is a direct attack on Maine’s land use laws, because it would allow landowners to ignore Maine law if they did not receive within two years the payments they felt that they were due based on compensation claims.
The Committee should understand that the language in LD 1135 is taken almost verbatim from a bill (Measure 37; Attachment A) adopted by Oregon voters in November 2004, and then repealed three years later (in November 2007) because it was such a fiscal and legal disaster.
In those three years, the Oregon “regulatory takings” measure resulted in 6,857 claims, for a total compensation value of more than $19 billion. (Attachment B.)
Just like the failed Oregon measure, LD 1135 includes no provision for funding any compensation claims – which means it would cause a huge budget impact and financial burden for Maine taxpayers. With no money provided, LD 1135, if adopted, would require that payments come from the State’s General Fund and municipal budgets, at the expense of other funding priorities. Either that, or taxes would need to be raised to pay what literally could be billions of dollars in compensation payments to landowners.
Alternatively, Section 10 of the bill provides that if the State fails to make a compensation payment within two years, then the landowner can ignore any land use regulations or laws, municipal comprehensive plans or ordinances, or statutes and administrative rules governing land use that were not in place when the property was purchased or inherited.
This is an incredible provision with sweeping implications. LD 1135 literally creates an incentive for landowners to make compensation claims against the state, so that if they don’t get paid within two years of their claim, they are free to ignore any land use laws that weren’t in place when they acquired their property.
This bill would result in a Pandora’s Box of compensation claims against the state, a patchwork of compliance with land use laws and regulations if compensation is not provided, and a cascade of lawsuits. In Oregon, more than 80 lawsuits were filed within two years of Measure 37 going into effect – and many of those cases remain unresolved. As recently as December 2010, courts in Oregon were still ruling on claims resulting from the 2004 passage of provisions identical to LD 1135.
If LD 1135 became law, Maine could literally lose control of its ability to manage the location and impacts of developments such as gravel pits, subdivisions, forestry operations, and commercial and industrial facilities. New zoning and land use regulation would face a perpetual threat of inciting a new round of compensation claims.
It’s no wonder that Oregon quickly repealed Measure 37. It’s also no wonder that voters in California, Idaho, Nevada, Montana, and Washington all defeated “regulatory takings” measures modeled after the measure in Oregon, with language identical to what’s before you in LD 1135.
These serious flaws in LD 1135 also help explain why this committee has consistently voted to defeat bills like this one in the past (including in 1995, 2000, and 2003). And it’s why the Attorney General’s Office has consistently testified in opposition to “regulatory takings” bills like LD 1135 whenever they have come before this committee, or other committees.
Just yesterday, for example, Assistant Attorney General Peggy Bensinger provided comments to the Environment and Natural Resources Committee in regard to a provision in LD 872, that would have allowed compensation claims with regard to vernal pool regulations. Ms. Bensinger explained that the U.S. Supreme Court and the Maine Law Court have both found that a landowner does not have a Constitutional Right to have a frozen set of laws and regulations governing his or her property, and that it is a legitimate exercise of the State’s powers to adopt land use laws and regulations designed to protect the public’s interests. The AG’s comments, and a $2 million fiscal note by DEP, persuaded the ENR Committee to vote unanimously to strike the “regulatory taking” section in LD 872.
For these legal, fiscal, and environmental reasons, we urge the committee to vote “Ought Not to Pass” on LD 1135. Thank you for your consideration of these comments, and I would be glad to answer any questions that you may have.