An Act To Connect the Citizens of the State to the State's Natural Resources by Establishing Standards for Relief from Regulatory Burdens
Sec. A-1. 1 MRSA c. 22-A is enacted to read:
§ 851. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
§ 852. Right to jury trial
There is a right to trial by jury in any action brought under this chapter.
§ 853. When a regulatory taking occurs
If the right to use, divide, sell, occupy or possess real property is reduced by the enactment or application of any regulation, the property owner may seek relief in accordance with the provisions of this chapter.
§ 854. Entire parcel
For the purposes of this chapter, the diminution of fair market value of real property caused by a regulation must be measured by the diminution of the fair market value of the entire contiguous parcel owned in whole or in part by the property owner and its affiliates and not merely the portion of any such parcel to which the regulation directly applies. A property owner whose entire contiguous parcel, along with that of its affiliates, has not been diminished by at least 50% is not entitled to relief under this chapter.
§ 855. Excluded regulations
The cause of action established under section 853 does not apply to the following regulations, narrowly construed:
§ 856. Relief
Damages are available as relief for a regulatory taking. The fact finder shall award the property owner an amount it determines comprises the diminution in fair market value caused by regulation, and title in the real property remains with the property owner. Payment of damages pursuant to this section operates to grant to and vest in the State the right to enforce the regulation as to the real property. Damages are limited to damages pursuant to Title 14, section 8105, subsection 1.
§ 857. Limitations
§ 858. Municipal mandates
§ 859. Mandatory mediation
A property owner may seek to mediate and thereafter pursue a claim under section 853 only when a regulation affects a use existing on the real property at the time the regulation is enacted or a reasonably foreseeable, nonspeculative use that is suitable for the subject real property and is compatible with adjacent land uses. A use is reasonably foreseeable if there is evidence that the property owner intended in fact to develop that use or a similar use of similar intensity.
If the State chooses, it may submit in an action under section 853 the list of identified allowed uses it previously provided the property owner and the content of any settlement offer previously proposed by the State, and it may ask the fact finder to determine whether a regulatory taking would be averted by the allowance of such previously identified uses or the terms of the settlement offer. If the jury so finds, the State may, if it chooses, allow the previously identified uses or terms of the settlement offer in lieu of damages as relief.
§ 860. Attorney's fees and costs
In an action brought under section 853, the prevailing party is, at the discretion of the court, entitled to reasonable attorney's fees and costs. The court may at its discretion also award to either party attorney's fees and costs for the mediation under section 831 if it concludes that the State did not make or the property owner did not accept a bona fide settlement offer in the mediation.
Sec. A-2. Judicial branch report on case load. The judicial branch shall compile information regarding the number of cases filed in state courts pursuant to the Maine Revised Statutes, Title 1, section 853. This information must include whether the cases at issue involve only a cause of action under Title 1, section 853 or whether these cases involve multiple causes of action, including a cause of action under Title 1, section 853. The judicial branch shall submit this information to the joint standing committee of the Legislature having jurisdiction over judiciary matters no later than February 1, 2017 and every 2 years thereafter.
Sec. B-1. 1 MRSA c. 22 is enacted to read:
LAND USE MEDIATION PROGRAM
§ 831. Land use mediation program
(1) For mediation of municipal governmental land use action, sought and failed to obtain a permit, variance or special exception and has pursued all reasonable avenues of administrative appeal; or
(2) For mediation of state governmental land use action, sought and failed to obtain governmental approval for a land use of that landowner's land and has a right to judicial review under Title 5, section 11001 either due to a final agency action or the failure or refusal of an agency to act; and
Sec. B-2. 2 MRSA §8, as amended by PL 2001, c. 184, §1, is further amended to read:
§ 8. Land use mediation; obligation to participate
Agencies within the executive branch shall participate in mediation under Title 5, chapter 314, subchapter II, 1, chapter 22 when requested to participate by the Court Alternative Dispute Resolution Service.
Sec. B-3. 4 MRSA §18-B, sub-§10, as amended by PL 2001, c. 184, §2, is further amended to read:
Sec. B-4. 5 MRSA c. 314, sub-c. 2, as amended, is repealed.
This bill establishes standards for relief when state regulation imposes an inordinate burden on an individual property owner, as well as efficient mechanisms for pursuit of such relief. The bill provides that, if a property owner's right to use, divide, sell, occupy or possess real property is reduced by the enactment or application of a government regulation, the property owner may seek and obtain relief. Under the provisions of the bill, prior to filing an action, the property owner must pursue relief under a land use mediation program.