HP1086, LD 1477, item 1, An Act To Protect Owners of Real Property

An Act To Protect Owners of Real Property

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 1 MRSA c. 22 is enacted to read:

CHAPTER 22

THE REAL PROPERTY PROTECTION ACT

§ 851. Short title

This chapter may be known and cited as "the Real Property Protection Act."

§ 852. Legislative findings and intent

1. Findings. The Legislature finds that some laws, regulations, rules and ordinances of the State and its political subdivisions may, as applied to a specific piece of property, inordinately burden, restrict or limit private property rights without necessarily amounting to a taking of property under the Constitution of Maine or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens.

The Legislature further finds that the judicial processes currently available to property owners to seek relief from inordinate burdens on the use of their real property are complicated, costly and unfair.

2. Intent. It is the intent of the Legislature that a cause of action be provided for relief separate and distinct from the law of takings when, as applied to a particular parcel of real property, a law, rule, regulation or ordinance of the State or its political subdivisions imposes an unfair burden, and that the procedures for this cause of action be efficient and fair.

§ 853. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Approval. "Approval" means any permit, license, special exception, variance or other governmental authorization required by the State or a political subdivision of the State affecting the use of real property.

2. Compensation. "Compensation" means an award of money to compensate a property owner for a regulatory taking of real property, upon the receipt of which title in the property owner's interest in the affected parcel is transferred to the State or the political subdivision of the State effecting the regulatory taking.

3. Damages. "Damages" means an award of money reflecting the diminution of value of real property caused by regulation effecting the regulatory taking, the payment of which permits the State or a political subdivision of the State to continue to impose the regulation.

4. Excluded regulations. "Excluded regulations" means regulations excluded from the applicability of this chapter pursuant to section 856.

5. Fact finder. "Fact finder" means a jury or, if the right to a jury is waived, a court.

6. Parcel. "Parcel" means the area of real property owned by a property owner upon which a regulation imposes limitations. A parcel may be a subset of a larger ownership. For the purposes of calculating the threshold diminution in value caused by regulation to present prima facie evidence of a regulatory taking under this chapter, such diminution is calculated as to the parcel at issue, without consideration of any additional property the property owner may own.

7. Property owner. "Property owner" means the holder of legal or equitable title in an interest in real property. "Property owner" does not include the State or a political subdivision of the State.

8. Real property. "Real property" means land and any appurtenances and improvements to the land.

9. Regulation. "Regulation" means any state, municipal or local law, regulation, rule, ordinance or other governmental limitation, or a combination thereof, on the use of real property, other than excluded regulations.

10. Regulator. "Regulator" means an agency, board, commission, council or other administrative body of the State or a political subdivision of the State. "Regulator" does not include the United States or an agency of the United States.

11. Regulatory taking. "Regulatory taking" means an inordinate burden caused by regulation imposed on a property owner's use of real property.

§ 854. Right to jury trial

There is a right to trial by jury in any action brought under this chapter.

§ 855. Regulatory taking

If the right to use, divide, sell, occupy or possess private real property is reduced by the enactment or application of any regulation, a property owner may seek relief in accordance with the provisions of this chapter.

1. Determination. A property owner is entitled to a determination by a fact finder as to whether a regulatory taking of a parcel has occurred upon the submission of prima facie evidence of a diminution in the market value of the parcel of 50% or greater caused by regulation.

2. Factors to be weighed. After a prima facie showing under subsection 1, at trial, in determining whether a regulatory taking has in fact occurred, the fact finder may weigh 3 factors:

A. The extent of the diminution in value of the parcel caused by the regulation;

B. The reasonable investment-backed expectations of the property owner when the parcel was acquired; and

C. The value, if any, remaining in any real property owned by the property owner contiguous to the parcel.

3. Cause of action cumulative. This section provides a cause of action for governmental actions that may not rise to the level of a taking under the Constitution of Maine or the United States Constitution. The provisions of this section are cumulative, and do not abrogate any other remedy lawfully available, including any remedy lawfully available for governmental actions that rise to the level of a taking under the Constitution of Maine or the United States Constitution.

§ 856. Excluded regulations

The cause of action established under section 855 does not apply to the following excluded regulations:

1. Nuisance. Regulations restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection must be construed narrowly in favor of a finding of compensation or damages under this chapter;

2. Public health and safety. Regulations restricting or prohibiting activities for the protection of public health and safety, narrowly construed, including but not limited to fire and building codes and health and sanitation regulations;

3. Compliance with federal law. Regulations required to comply with federal law; or

4. Regulations preceding ownership. Regulations adopted and applied to the parcel prior to the date of acquisition of the parcel by the property owner or a family member of the property owner whether by inheritance or otherwise.

§ 857. Available relief

1. Property owner choice. A property owner may choose either compensation or damages as relief for a regulatory taking.

2. Compensation. If a property owner chooses compensation under subsection 1, the fact finder shall award the property owner the fair market value of the parcel, and the property owner's rights, title and interest in the parcel must be transferred to the State or political subdivision of the State, unless the regulator chooses not to apply the regulation, as allowed in section 859.

3. Damages. If the property owner chooses damages under subsection 1, the fact finder shall award an amount comprising the diminution in value caused by the regulation, and title in the parcel must remain with the property owner, unless the regulator chooses not to apply the regulation, as allowed in section 859.

4. Effect of payment of damages. An award or payment of damages pursuant to this section permits the State or a political subdivision of the State that pays the damages to enforce the regulation, and the enforcement right may be held, transferred or otherwise disposed of by the State or political subdivision of the State.

§ 858. Multiple defendants

When the value of property is being diminished due to limitations on use imposed by multiple regulations of both the State and political subdivisions of the State, any award of compensation or damages for a regulatory taking must be allocated proportionately among the defendants by the fact finder.

§ 859. Regulator choice

At any time before final judgment is entered, a defendant may choose, based on the individual circumstances presented in that case and the affected parcel, instead of paying compensation or damages, not to impose upon the parcel the regulation causing the regulatory taking. If the defendant chooses this option, a declaratory judgment must be entered relieving the parcel of the application of that regulation.

§ 860. Ripeness

1. Rejection of approval. If the scope of the diminution in the value of a parcel depends upon whether an approval can be obtained from a regulator, and the property owner applies for such an approval, if the regulator rejects the application for approval, the regulator must identify in writing the scope of use, if any, that would be approved on the parcel. If the regulator approves an application with conditions, that approval and the conditions it contains constitute the scope of use allowed for the purposes of this chapter.

2. When claim may be brought. The issuance of one identification of the scope of use that a regulator would approve is the only prerequisite needed to make a claim under this chapter for a regulatory taking procedually ripe. A property owner need not submit multiple applications before a cause of action is ripe under this chapter.

3. Effect of good faith identification of scope of use. A good faith identification of the scope of use that a regulator would approve is not binding upon the regulator for any purpose except to identify the diminution in value of a parcel in a suit under this chapter.

§ 861. Sovereign immunity

1. Sovereign immunity waived. Sovereign immunity to suit and liability is waived and abolished to the extent of liability created under this chapter.

2. Maine Tort Claims Act. The requirements of the Maine Torts Claims Act do not apply to suits brought under this chapter.

§ 862. Informal resolution

1. Request for informal determination. Prior to filing suit pursuant to section 855, a property owner may file a request in writing with the appropriate regulator to seek the regulator's position as to whether its regulation is effecting a regulatory taking of the property owner's parcel. The property owner may include with its request any information the property owner believes relevant.

2. Regulator's response. Within 60 days of receipt of a request under subsection 1, the regulator receiving the request shall respond to the property owner in writing, explaining its position as to whether the parcel has suffered a regulatory taking; if so, whether the regulator chooses to continue to apply the regulation at issue, or would prefer that either compensation or damages be awarded; and the amount that the regulator is willing voluntarily to provide as compensation or damages if applicable.

3. Admissibility of request and response. Neither the property owner's request under subsection 1 nor the regulator's response under subsection 2 is admissible as evidence in an action under section 855 or otherwise binding upon the property owner or regulator.

summary

The purpose of this bill is to establish a cause of action for property owners when the impact of government regulation on real property imposes an undue burden on the value of private property and to streamline the process for seeking relief in court. At any time before a judgment is entered, the government regulator may choose either to pay damages or compensation to the affected property owner or not to impose the regulation on that parcel.

HP1086 LD 1477	First Regular Session - 125th Maine Legislature		LR 1866 Item 1
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