Testimony in Opposition to LD 1039
May 07, 2013
Good afternoon Senator Valentino, Representative Priest, and members of the Judiciary Committee. My name is Beth Ahearn; I am the Political Director of Maine Conservation Voters (MCV). MCV is a nonpartisan, nonprofit organization whose mission is to ensure that the protection of Maine’s water, air, forests, wildlife, landscapes and natural heritage is a political priority.
MCV opposes both these pieces of legislation because Maine’s land use laws are designed to protect our water, land and wildlife; the character of Maine communities; public health and safety; and the value of property for all Mainers.
Both bills threaten these core purposes of public policy. It does so by requiring Maine taxpayers to pay people and corporations to obey the laws passed by the legislature OR by waiving the law. Either option is too costly for Maine–compensate with money we do not have or forfeit further protection our land, water and wildlife and all of our property values.
We have no way of knowing what land use laws or rules might be necessary in the future. Yet these pieces of legislation would essentially freeze land use law where it is today. Taxpayers and state agencies would be left with two unworkable and unethical choices: pay landowners to follow the law or waive the protective regulation, punching holes in how Maine law is applied across the landscape.
LD 1450 is a lawyer’s dream in that it would create endless litigation. Determining what constitutes a 50 percent diminution of value is by no means a simple or objective task and will inevitably involve a battle between the property owner’s appraisal and that of the state. LD 1039 is more extreme, requiring a variance from the law or compensation when there is ANY diminution of value.
The bills purport to exclude regulations that protect the public health and safety. Arguably, many, if not all of the land use laws exist for these reasons. This provision will be tested in court as will whether the provision has been construed narrowly enough.
Municipal regulation is supposed to be removed from the reach of regulatory taking in the bill. Yet this is not so easily done. For instance, Shoreland Zoning is a state law that is carried out by municipalities; amending the law at the local level could trigger takings claims and would be another area to litigate. All this litigation would burden an already overly stretched judicial docket and the cost of the litigation to the state would be tremendous.
In addition to freezing our land use laws, burdening the courts and costing the taxpayer a lot of money, these takings schemes are fundamentally unfair. They only look at one side of the equation. Land use law more often than not has increased property value. Forty years ago, our rivers were sewers. Land use laws cleaned up those rivers–a benefit to all of us, but especially to home and business owners along the river. For the takings provision to be fair, “givings” should also be taken into consideration when a property realizes a 50 percent increase in value due to regulation.
This bill is a solution in search of a problem. According to DEP records, 98 percent of all permits applied for were granted; 100 percent of vernal pools permits were granted (see below*). Aggrieved landowners have recourse; they can avail themselves of the land use mediation process put in place by this body in 1995, and if a law or a rule is too burdensome, the legislature is the place to fix that. The legislature has already taken more control by making land use regulations major substantive rules which have to have your approval.
In summary, these takings’ bills are a back door way to undermine future laws to protect our health as well as our land, air, water, and wildlife. They are too costly and the case has not been made for their need. We urge you to reject these bills entirely and allow Maine people to continue to conserve our natural heritage for future generations.