An Act To Protect Owners of Real Property
Maine Legislature, Session 125, LD 1477
Committee: Judiciary
Sponsors: CUSHING, PLOWMAN, GIFFORD, NUTTING, WATERHOUSE, WINSOR, ROSEN, SHERMAN, THIBODEAU

Legislative Document 
No. 1477 
H.P. 1086 
House of Representatives, April 13, 2011 
An Act To Protect Owners of Real Property 
Reference to the Committee on Judiciary suggested and ordered printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative CUSHING of Hampden. 
Cosponsored by Senator PLOWMAN of Penobscot and 
Representatives: GIFFORD of Lincoln, Speaker NUTTING of Oakland, WATERHOUSE of 
Bridgton, WINSOR of Norway, Senators: ROSEN of Hancock, SHERMAN of Aroostook, 
THIBODEAU of Waldo. 
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 
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.