An Act To Implement Recommendations of the Committee To Review Issues Dealing with Regulatory Takings
Maine Legislature, Session 125, LD 1810
Committee: Judiciary

Legislative Document 
No. 1810 
H.P. 1334 
House of Representatives, February 7, 2012 
An Act To Implement Recommendations of the Committee To 
Review Issues Dealing with Regulatory Takings 
Reported by Representative NASS of Acton for the Joint Standing Committee on Judiciary 
pursuant to Resolve 2011, chapter 111, section 9. 
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218. 
HEATHER J.R. PRIEST 
Clerk 
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 
REGULATORY TAKINGS 
§851.  Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1.  Fact finder.  "Fact finder" means a jury or, if the right to a jury is waived, the 
court. 
2.  Property owner.  "Property owner" means the holder of legal or equitable title to 
an interest in real property.  "Property owner" does not include a governmental entity. 
3.  Real property.  "Real property" means land and any appurtenances or 
improvements to the land. 
4.  Regulation.  "Regulation" means any law, rule, ordinance or other governmental 
limitation imposed by the State or a state agency on the use of real property.  
"Regulation" does not include a municipal regulation, except that "regulation" includes an 
action by a municipality in conformance with a state regulation that imposes a mandate 
on the municipality. 
5.  Regulator.  "Regulator" means the State, any state agency or any other 
administrative body of the State. 
6.  Regulatory taking.  "Regulatory taking" means a burden caused by regulation 
imposed on a property owner's use of the property owner's real property resulting in a 
diminution in fair market value of 50% or greater. 
7.  Takings variance.  "Takings variance" means a decision by the State to permit 
departure from the requirements of a regulation that imposes a regulatory taking. 
§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. 
1.  Determination.  A property owner is entitled to a determination by the fact finder 
as to whether a regulatory taking has occurred upon the submission of prima facie 
evidence, supported by an appraisal, of a diminution in the fair market value of real 
property of 50% or greater caused by regulation. 
2.  Factors to be weighed.  After a prima facie showing has been made under 
subsection 1, in determining whether a regulatory taking has in fact occurred, the fact 
finder shall weigh 3 factors: 
A.  The extent of the diminution in fair market value of the real property caused by 
the regulation;  
B.  The reasonable investment-backed expectations of the property owner; and 
C.  The character of the use regulated. 
3.  Cause of action cumulative.  This section provides a cause of action for 
governmental actions that do not rise to the level of a taking under the Constitution of 
Maine or the United States Constitution.  The remedies provided under 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. 
§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 parcel owned by the property owner and not merely the portion of any such parcel 
to which the regulation directly applies. 
§855.  Excluded regulations 
The cause of action established under section 853 does not apply to the following 
regulations, narrowly construed: 
1.  Nuisance.  Regulations restricting or prohibiting activities recognized as public 
nuisances under common law; 
2.  Public health and safety.  Regulations restricting or prohibiting activities for the 
protection of public health and safety, such as fire and building codes and health and 
sanitation regulations; 
3.  Compliance with federal law.  Regulations required to comply with federal law; 
and 
4.  Prospective application.  Regulations enacted prior to the effective date of this 
section. 
§856.  Relief 
Compensation, damages or a takings variance are available as relief for a regulatory 
taking, at the option of the State. 
1.  Compensation.  If the State chooses to pay compensation, the fact finder shall 
award the property owner the fair market value of the real property taken, and the 
property owner's rights, title and interest in that real property must be transferred to the 
State or a political subdivision of the State.  
2.  Damages.  If the State chooses to pay damages, 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. 
3.  Takings variance.  If the State chooses to grant a takings variance, the regulation 
causing the regulatory taking may not be applied to the real property upon which a 
regulatory taking would otherwise occur. 
§857.  Limitations 
1.  Time period to sue.  An action or proceeding may not be brought or maintained 
under section 853 unless commenced within 3 years after the cause of action first 
accrued. 
2.  Accrual.  A cause of action accrues on the date that regulation first limits the use 
of the real property that a property owner claims has been subject to a regulatory taking. 
3.  Multiple regulations.  If an action under section 853 is based on the cumulative 
impact of multiple regulations, each regulation must have been enacted after the effective 
date of this chapter. 
4.  Tolling.  The limitations period is tolled during a period of informal dispute 
resolution under section 858 or Title 5, section 3341. 
§858.  Informal dispute resolution 
1.  Commencement of process.  Prior to filing an action pursuant to section 853, a 
property owner may, in the property owner's discretion, file a request with the appropriate 
regulator to remedy a claimed regulatory taking.  The property owner may include with 
the request any information the property owner believes relevant, such as an appraisal. 
2.  Response.  Within 60 days of receipt of a request under subsection 1, the regulator 
shall respond to the property owner in writing, explaining the regulator's position as to 
whether the property owner has suffered a regulatory taking. 
3.  Choice of relief.  If the regulator in the response made pursuant to subsection 2 
concludes that there has been a regulatory taking, the regulator shall indicate in the 
response that the State chooses not to continue to apply the regulation at issue or that 
either compensation or damages be awarded and, if the latter, the amount that the State is 
willing to provide as compensation or damages. 
4.  Identification of allowed uses.  If the regulator in the response made pursuant to 
subsection 2 concludes that the question of whether the property owner has suffered a 
regulatory taking depends upon whether the property owner could obtain approval for 
uses of the property under existing state regulatory avenues, the regulator must identify 
the scope of uses of the property that the regulator concludes the property owner would 
reasonably be granted under those avenues. 
5.  Inadmissibility of request and response.  Neither the property owner's request 
under subsection 1 nor the regulator's response under subsections 2 to 4 are admissible as 
evidence proving or refuting liability in an action under section 853 or otherwise binding 
upon the property owner or regulator. 
§859.  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. 
§860.  Land use mediation program 
This chapter does not preclude use of the land use mediation program under Title 5, 
section 3341. 
SUMMARY 
This bill is reported out by the Joint Standing Committee on Judiciary pursuant to 
Resolve 2011, chapter 111, section 9.  This bill incorporates the recommendations of the 
majority of the Committee to Review Issues Dealing with Regulatory Takings. 
The Joint Standing Committee on Judiciary has not taken a position on the substance 
of the recommendations or the bill, and by reporting out this bill the committee is not 
suggesting and does not intend to suggest that it agrees or disagrees with any aspect of the 
study committee's recommendations or this bill.  The Joint Standing Committee on 
Judiciary is reporting the bill out for the sole purpose of turning the study committee's 
majority proposal into a printed bill that can be referred to the Joint Standing Committee 
on Judiciary for an appropriate public hearing and subsequent processing in the normal 
course.  The Joint Standing Committee on Judiciary is taking this action to ensure clarity 
and transparency in the legislative review of the study committee's majority proposal. 
The purpose of this bill is to establish 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. 
To eliminate any fiscal impact from the establishment of these new standards and 
mechanisms, they will apply prospectively:  that is, only to burdens from regulations 
enacted in the future.  The bill provides mechanisms designed to achieve fair results and 
to resolve disputes efficiently, including the ability, at the State's option, to grant 
variances, which is an option consistent with general land use principles; the 
encouragement of the use of informal dispute resolution avenues reducing and potentially 
eliminating any litigation costs; and, when regulatory impact on fair market value 
depends upon other regulatory avenues, the ability of a property owner to obtain a 
nonbinding identification of the uses the state will allow on the affected property. 
Claims of diminution of fair market value based on speculative uses are precluded by 
the requirement that the property owner provide an appraisal reflecting a diminution of 
50% or more in actual fair market value of the owner's entire parcel as well as by the 
limitation of relief to the reasonable investment-backed expectations of the owner.