An Act To Base the Value of Eminent Domain Takings on Going Concern Value
Maine Legislature, Session 124, LD 1207
Committee: Judiciary
Sponsors: GILES
Amends: 23 MRSA §152, 23 MRSA §152-B, 23 MRSA §154-G, 30-A MRSA §3101, 30-A MRSA §5204

Legislative Document 
No. 1207 
H.P.832 
House of Representatives, March 26,2009 
An Act To Base the Value of Eminent Domain Takings on Going 
Concern Value 
Reference to the Committee on Judiciary suggested and ~!dered printed. 
Presented by Representative GILES of Belfast. 
Prin.tcd on recycled pilper 
'7r/~ 1/7. 77!14~{ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the JPeople oftheStateofMaine as follows: 
Sec. 1. 23 MRSA §152:..A is enacted to read: 
§152-A. Business damage ombudsman appointment; term; compensation 
The Governor shall appoint a business damage ombudsman to act as an impartial 
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reviewer of cases to provide just compensation to' business owners whose business 
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'property has been lost or impaired as a result of eminent domain, who is referred to in this 
_ chapter as "the ombudsman," subject to review by the joint standing committee of the 
Legislature having jurisdiction over transportation matters and confirmation by the 
Senate. The ombudsman must be chosen without reference to party affiliation and solely 
on the ground of professional competence to. perform the -duties of that office. The 
ombudsman holds office for a term of 4 years. An ombudsman may be reappointed. The 
compensationofthe ombudsman is fixed by the Governor. 
' Sec. 2 .. 23 MRSA §152-B is enacted to read: 
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§152-B. Ombudsman duties 
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The ombudsman shall ensure that the owner of a business conducted on the property 
taken, whether owned by the business owner or leased from another entity, or on the 
remainder of the property if the property is part of a larger parcel must be compensated 
for loss of going concern value if the owiler proves that: 
1. Cause of loss. The loss is caused by the talGng of the property or injury to the 
remainder of the pr:operty; 
2. -Not preventable. The lo~s cannot reasonably be prevented by relocation of the 
business or by taking steps and adopting procedures that a reasonably prudent person 
would take arid adopt in preservirig the going concern value; 
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3. 
Compensatio-n by Federal Government. 
Compensation for the loss is riot 
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included in federal compensation; and 
4. Compensation not duplicated. Compensation for the loss is not duplicated in 
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compensation otherwise awarded to the owner. 
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For the'ptirpose of this section, "going concern value" means the benefits that accrue 
to a business as a result of its location, reputation for dependability, slG11 or quality and 
any other' circumstances resulting in probable retention of old or. acquisition of new 
patronage. 
Sec. 3. 23 MRSA §154-G is enacted to read: 
§154-G. Compensation for loss or impairment of going concern value 
1. DefiiIition. For the purposes of this section, "loss or impairment of the going 
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concern value" means the benefits that accrue to a business as a result of ' its location, 
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reputation for dependability, skill or quality or any other circumstances resulting m 
probable retention of old or acquisition of new patronage. 
2. Displacement of business. If the taking of property under this chapter involves 
the displacement of 'a business, the owner may request valuation under this section to 
determine just compensation that includes loss or impairment of the going concern value 
of the business.' 
3. Elements. In addition to the value determined under section 154, compensation to 
the owner of it business conducted on the property taken includes compensation for loss 
or impairment of the going concern value of the business if the owner proves that: 
A. The loss or impairment cannot reasonably be prevented by a relocation of the 
business or bv taking steps and adopting procedures that a reasonably Prudent person 
would take and adopt in preserving the going concern value; 
B. The loss or impairment will not be included in moving and relocation payments 
under section 244; and 
C. The loss or impairment will notbe duplicated in the compensation awarded to the 
owner. 
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4. Procedure. The owner and the department shall each select a licensed appraiser 
to calculate the amount of additional compensation due under this section. 
If the 
appraisers agree, the additional amount must be added to the department's offer of just 
compensation. If the appraisers do not agree but the difference is not more than 10% of 
the higher appraisal, the average of the 2 appraisals must be added to the department's 
offer of just compensation. If the appraisers do not agree and the difference is more than 
10% of the higher appraisal, the owner may have the matter referred to the State Claims 
Commission for assessment of the damage. 
Sec. 4. 30-A MRSA §3101, sub-§5 is enacted to read: 
5. Just compe'nsation for established businesses. Just compensation paid by the 
municipality must include compensation for damages for the loss or impairment of the 
going concern value of a business established for more than 3 years that is located on land 
that is the subject of the proceedings or located on adjoining lands if that business owns 
the land that is the subject of the proceedings. Title 23, section 154-G' governs the 
awarding of such compensation. 
Sec. 5 .. 30-A MRSA §5204, sub~§12 is enacted to read: 
12. ·Just compensation for certain businesses. For purposes of eminent domain 
proceedings, just compensation paid by the municipality for a business' established for 
more than 3 years thatis located on land that is the subject of the proceedings or located 
oil. adjoimng lands if that business owns the land that is the subject of the proceedings 
must include compensation for the damages for the loss or impairment of the going 
concern value of the business. Title 23, section 154-G governs the awarding of such 
compensation. 
SUMMARY 
This' bill establishes an impartial ombudsman and defmes the ombudsman's duty, 
which is to ensur.e business owners who lose property by eminent domain are properly 
compensated. The role of the ombudsman does not preclude the role of the State Claims 
Corinnission. 
This bill establishes the criteria for determination of compensation for loss or 
impairment of the going concern vaiue of a business when the property of a business is to 
be taken by. the Department of Transportation or a municipality exercising its eminent 
domain power. The burden is on the business to prove the loss. The analysis takes place 
at the request of the owner of the displaced business. The process requires both the 
owner and the governmental authority to each select a licensed appraiser to make the 
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determination of the loss or impairment of the going concern value .. If they agree, that 
additional compensation must be added to the compensation offer. If th~y disagree but 
are within 10% of each other, the average appraisal is used. If they disagree by more than 
10%, the owner may ask the State Claims Commission to apply the same analysis when 
the owner appeals the offer. 
This process applies to compensation to be paid by 
municipalities when exercising eminent domain authority under general authorization 
provisions and for economic development purposes. 
This bill adds to the duties of,the State Claims !=6mrnission the duty to include 
determination of just compensation in 2 categories of municipal condemnations: . general 
eminent domain authority under the Maine Revised Statutes, Title 30-A, chapter 151 and 
community development under Title 30-A, chapter 205. 
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