An Act To Implement Recommendations of the Committee To Review Issues Dealing with Regulatory Takings
Maine Legislature, Session 125, LD 1810
Committee Amendment CA_A_H921 (House)
Amends: 2 MRSA §8, 4 MRSA §18-B, 5 MRSA §8056

COMMITTEE AMENDMENT "A " 
to H.P. 1334, L.D. 1810, Bill, "An Act To 
Implement Recommendations of the Committee To Review Issues Dealing with 
Regulatory Takings" 
Amend the bill by striking out the title and substituting the following: 
'An Act To Provide Ongoing Review of the Effectiveness and Fairness of Land Use 
Laws and Rules' 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 1 MRSA c. 22 is enacted to read: 
CHAPTER 22 
LAND USE MEDIATION PROGRAM 
§831. Land use mediation program 
1. Program established. The land use mediation program is established to provide 
eligible private landowners with a prompt, independent, inexpensive and local forum for 
mediation of governmental land use actions as an alternative to court action. 
State 
agencies with responsibilities for land use laws shall assist in promoting awareness of the 
program. 
2. Provision of mediation services; forms, filing and fees. The Court Alternative 
Dispute Resolution Service created in Title 4, section 18-B shall provide mediation 
services under this chapter. The Court Alternative Dispute Resolution Service shall: 
A. 
Assign mediators under this chapter who are knowledgeable in land use 
regulatory issues and environmental law; 
B. Establish a simple and expedient application process. Not later than January 10th 
of each year, the Court Alternative Dispute Resolution Service shall send a copy of 
each completed application received and each agreement signed during the previous 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT "A"to H.P. 1334,L.D. 1810 
calendar year to the chairs of the joint legislative committee created to review 
effectiveness and fairness ofland use laws and rules under Title 3, chapter 39; and 
C. Establish a fee for services in an amount not to exceed $175 for every 4 hours of 
mediation services provided. In addition, the landowner is responsible for the costs of 
providing notice as required under subsection 8. 
3. Application; eligibility. A landowner may apply for mediation under this chapter 
if that landowner: 
A. Has suffered significant harm as a result of a governmental action regulating land 
use; 
B. Applies for mediation under subsection 4 within the time allowed under law or 
rules of the court for filing for judicial review of that governmental action; 
C. Has: 
(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 
D. Submits to the Superior Court clerk all necessary fees at the time of application. 
4. Submission of application for mediation. A landowner may apply for mediation 
under this chapter by filing an application for mediation with the Superior Court clerk in 
the county in which the land that is the subject of the conflict is located. The Superior 
Court clerk shall forward the application to the Court Alternative Dispute Resolution 
Service. The Court Alternative Dispute Resolution Service shall make available online 
brochures about the land use mediation program and applications for landowner 
participation in the land use mediation program. 
S. Agency responsibilities; publicity. State agencies that administer land use laws 
shall provide information about the land use mediation program, along with the right of 
appeal, when making regulatorv decisions, including any decisions that deny approval of 
a permit application or license. The special advocate appointed by the Secretary of State 
pursuant to Title 5, section 90-P shall provide the land use mediation program brochure to 
businesses that are pursuing permit applications with state agencies. State agencies that 
administer land use laws and the Court Alternative Dispute Resolution Service shall 
ensure that information about the land use mediation program is available in an electronic 
format on agency publicly accessible websites. 
6. Stay of filing period. Notwithstanding any other provision of law, the period of 
time allowed by law or by rules of the court for any person to file for judicial review of 
the governmental action for which mediation is requested under this chapter is stayed for 
days beyond the date the mediator files the report required under subsection 13 with 
the Superior Court clerk, but in no case longer than 120 days from the date the landowner 
files the application for mediation with the Superior Court clerk. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT "A" to H.P. 1334, L.D. 1810 
7. Purpose; conduct of mediation. The purpose of a mediation under this chapter is 
to facilitate, within existing land use laws, ordinances and rules, a mutually acceptable 
solution to a conflict between a landowner and a governmental entity regulating land use. 
The mediator, whenever possible and appropriate, shall conduct the mediation in the 
county in which the land that is the subject of the conflict is located. When mediating that 
solution, the mediator shall balance the need for public access to proceedings with the 
flexibility, discretion and private caucus techniques required for effective mediation. 
8. Schedule; notice; participants. The mediator is responsible for scheduling all 
mediation sessions. The mediator shall provide a list of the names and addresses and a 
copy of the notice of the mediation schedule to the Superior Court clerk, who shall mail 
the notices. The mediator shall include on the list persons identified in the following 
ways. 
A. The landowner and the governmental entity shall provide to the mediator the 
names and addresses of the parties, intervenors and other persons who significantly 
participated in the underlying governmental land use action proceedings. 
B. Any other person who believes that that person's participation in the mediation is 
necessary may file a request with the mediator to be included in the mediation. 
C. The mediator shall determine if any other person's participation is necessary for 
effective mediation. 
9. Parties to mediation. A mediator shall include in the mediation process any 
person the mediator determines is necessary for effective mediation, including persons 
representing municipal, county or state agencies and abutters, parties, intervenors or other 
persons significantly involved in the underlying governmental land use action. A 
mediator may exclude or limit a person's participation in mediation when the mediator 
determines that exclusion or limitation necessary for effective mediation. This subsection 
does not require a municipality to participate in mediation under this chapter. 
10. Sharing of costs. Participants in the mediation may share the cost of mediation 
after the initial 4 hours of mediation services have been provided. 
11. Admissibility. The admissibility in court of conduct or statements made during 
mediation, including offers of settlement, is governed by the Maine Rules of Evidence, 
Rule 408(a) for matters subsequently heard in a state court and Federal Rules of 
Evidence, Rule 408 for matters subsequently heard in a federal court. 
12. Agreements. A mediated agreement must be in writing. The landowner, the 
governmental entity and all other participants who agree must sign the agreement as 
participants and the mediator must sign as the mediator. 
A. 
An agreement that requires any additional governmental action is not self-
executing. If any additional governmental action is required, the landowner is 
responsible for initiating that action and providing any additional information 
reasonably required by the governmental entity to implement the agreement. The 
landowner must notify the governmental entity in writing within 30 days, after the 
mediator files the mediator's report under subsection 13, that the landowner will be 
taking action in accordance with the agreement. 
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COMMITTEE AMENDMENT"~" to H.P. 1334, L.D. 1810 
B. 
Notwithstanding any procedural restriction that would otherwise prevent 
reconsideration of the governmental action, a governmental entity may reconsider its 
decision in the underlying governmental land use action in accordance with the 
agreement as long as that reconsideration does not violate any substantive application 
or review requirement. 
13. Mediator's report. Within 90 days after the landowner files an application for 
mediation, the mediator shall file a report with the Superior Court clerk. The mediator 
shall file the report as soon as possible if the mediator determines that a mediated 
agreement is not possible. The report must contain: 
A. 
The names of the mediation participants, including the landowner, the 
governmental entity and any other persons; 
B. The nature of any agreements reached during the course of mediation, which 
mediation participants were parties to the agreements and what further action is 
required of any person; 
C. The nature of any issues remaining unresolved and the mediation participants 
involved in those unresolved issues; and 
D. A copy of any written agreement under subsection 12. 
Sec. 2. 2 MRSA §8, as amended by PL 2001, c. 184, §l, is further amended to 
read: 
§8. Land use mediation; obligation to participate 
Agencies within the executive branch shall participate in mediation under Title ~ 
el'laflter 314, s-aael'laflter III, chapter 22, when requested to participate by the Court 
Alternative Dispute Resolution Service. 
Sec. 3. 3 MRSA c. 39 is enacted to read: 
CHAPTER 39 
REGULATORY FAIRNESS REVIEW 
§1101. Committee on regulatory fairness 
1. 
Committee defined. 
"Committee" means a joint legislative committee 
established by joint rule of the Legislature to provide a forum for ongoing legislative 
review of the effectiveness and fairness of land use laws and rules. 
2. Membership. The membership of the committee and the selection of chairs are 
established by joint rule ofthe Legislature. The President of the Senate and the Speaker 
of the House may use the following as guidance for appointing members to the 
committee: 
A. The Senate chair, the House chair, the ranking minority Senate member and the 
ranking minority House member of the joint standing committee of the Legislature 
having jurisdiction over environment and natural resources matters; 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT 'A "to H.P. 1334, L.D. 1810 
B. The Senate chair, the House chair, the ranking minority Senate member and the 
ranking minority House member of the joint standing committee of the Legislature 
having jurisdiction over agriculture, conservation and forestry matters; 
C. The Senate chair, the House chair, the ranking minority Senate member and the 
ranking minority House member of the joint standing committee of the Legislature 
having jurisdiction over judiciary matters; 
D. One additional member of the Senate, appointed by the President of the Senate; 
and 
E. One additional member of the House, appointed by the Speaker of the House. 
3. Meetings. The committee shall meet at least 2 times a year and as needed to 
fulfill its responsibilities. A meeting may be called by the chairs or by any 4 members. 
4. Duties and powers. The committee: 
A. Shall conduct public meetings to obtain information concerning the effectiveness 
and efficiency of rules affecting land use, including specific information on laws and 
rules that may have resulted in more than a minor reduction in the economically 
beneficial or productive uses of land. The primary focus of such review must be on 
laws and rules that have been adopted within the previous 3 years; 
B. 
Shall request from relevant state agencies the purpose and background 
surrounding any law or rule alleged to have resulted in more than a minor reduction 
in the economically beneficial or productive uses of land, including but not limited to 
any major substantive rule to be submitted to the Legislature pursuant to Title 5, 
section 8072, and any information the agency has about the specific application of the 
law or rule in question, including any benefit-cost analysis conducted by the agency 
pursuant to Title 5, section 8063-A, and any other data that would assist the 
committee in reviewing the benefits and costs of the law or rule; 
C. Shall receive and review information from the Office of the Attorney General 
regarding activities of the Attorney General, pursuant to Title 5, section 8056, 
subsection 6, to review proposed rules to determine whether they may reasonably be 
expected to result in a taking of private property under the Constitution of Maine, 
including whether the rules provide sufficient variance provisions to avoid such a 
taking; 
D. Shall review information about the land use mediation program pursuant to Title 
1, chapter 22, including information about completed applications received and each 
agreement signed during the previous calendar year; 
E. Shall solicit input from organizations that may be interested in providing input to 
the committee, including but not limited to organizations that represent small farmers 
and woodlot owners; 
F. May develop recommendations for changes in land use laws and rules and refer 
such recommendations, with supporting documentation, to the joint standing 
committee of the Legislature with appropriate jurisdiction, including any 
recommendations that further analysis of benefits and costs, pursuant to Title 5, 
section 8063-A, be conducted by the relevant state agency. 
A joint standing 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT 'fi" to H.P. 1334, L.D. 1810 
committee of the Legislature that receives a recommendation from the committee 
may submit a bill for subsequent reference and public hearing; 
G. May make recommendations to the joint standing committee of the Legislature 
with appropriate jurisdiction regarding major substantive rules, pursuant to Title 5, 
section 8072, as appropriate; and 
H. May undertake other activities consistent with its listed responsibilities under this 
subsection. 
S. Information protocol. The committee shall develop a user-friendly form that 
may be used by members of the public to assist the committee in understanding the 
history, land use issues, regulatory impacts and agency interactions associated with cases 
presented to the committee. Completed forms and associated documents submitted to the 
committee are public records. 
6. Staffing. Based on available resources, the Legislative Council shall provide staff 
support for the committee. 
Sec.4. 4 MRSA §18-B, sub-§10, as amended by PL 2001, c. 184, §2, is further 
amended to read: 
10. Land use mediation. The land use mediation program is a program within the 
Court Alternative Dispute Resolution Service. 
A. The Director of the Court Alternative Dispute Resolution Service shall administer 
the land use mediation program established in Title 5, ehapter 314, sl:1behapter II L 
chapter 22. 
B. A land use mediation fund is established as a nonlapsing, dedicated fund within 
the Administrative Office of the Courts. 
Fees collected for mediation services 
pursuant to Title 5, ehapter 314, subehapter II 1, chapter 22 must be deposited in the 
fund. The Administrative Office of the Courts shall use the resources in the fund to 
cover the costs of providing mediation services as required under Title 5, ehapter 314, 
sl:1behapter II 1, chapter 22. 
Sec.5. 5 MRSA c. 314, sub-c. 2, as amended, is repealed. 
Sec. 6. 5 MRSA §8056, sub-§6, as amended by PL 1995, c. 537, §6, is further 
amended to read: 
6. Attorney General review and approval. The review required in subsection 1 
may not be performed by any person involved in the formulation or drafting of the 
proposed rule. The Attorney General may not approve a rule if it is reasonably expected 
to result in a taking of private property under the Constitution of Maine unless such a 
result is directed by law or sufficient procedures exist in law or in the proposed rule to 
allow for a variance designed to avoid such a taking. By December 15th of each year, the 
Attorney General shall provide to the joint legislative committee created to review 
effectiveness and fairness of land use laws and rules under Title 3, chapter 39 a copy of 
each proposed rule reviewed under this subsection that was the subject of public 
comment suggesting either that the rule might result in a potential taking of real property 
under the Constitution of Maine or that a variance was necessary to avoid such a taking. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT·A" to H.P. 1334, L.D. 1810 
Sec. 7. Appropriations and allocations. 
The following appropriations and 
allocations are made. 
LEGISLATURE 
Legislature 0081 
Initiative: Provides funding to increase one Legislative Analyst position from part-time to 
full-time to provide staff assistance to the committee on regulatory fairness. 
GENERAL FUND 
POSITIONS - LEGISLATIVE COUNT 
Personal Services 
GENERAL FUND TOTAL 
SUMMARY 
2011-12 
0.000 
$0 
$0 
2012-13 
0.500 
$20,693 
$20,693 
This amendment is the majority report of the Joint Standing Committee on Judiciary. 
It replaces the bill. 
The amendment provides enabling language for the establishment by the Legislature 
of a joint legislative committee created to review effectiveness and fairness of land use 
laws and rules. The committee is to be established by joint rule of the Legislature. Its 
duties include hearing and investigating complaints of property owners about land use 
laws and rules; reviewing requested information from relevant state agencies about any 
law or rule alleged to have resulted in more than a minor reduction in the economically 
beneficial or productive uses of land; receiving information provided by the Attorney 
General regarding each rule the committee has reviewed that was the subject of public 
comment suggesting either that the rule might result in a potential taking of real property 
under the Constitution of Maine or that a variance was necessary to avoid such a taking; 
and recommending legislation to adjust land use laws and rules. 
The selection of 
members is suggested to provide for representation from joint standing committees of the 
Legislature with jurisdiction over environment and natural resources matters, agriculture, 
conservation and forestry matters and judiciary matters. 
The amendment repeals the existing land use mediation program, reinstates it in the 
Maine Revised Statutes, Title 1 and corrects cross-references to the program. It requires 
the Court Alternative Dispute Resolution Service to submit an annual report about land 
use mediations to the joint legislative committee created to review effectiveness and 
fairness of land use laws and rules. The Court Alternative Dispute Resolution Service 
must make available online brochures about the program and applications for landowner 
participation in the land use mediation program. 
The amendment requires state agencies that administer land use laws to provide, 
when making regulatory decisions, information about the land use mediation program as 
well as the right to appeal the regulatory decisions. The special advocate appointed by 
the Secretary of State pursuant to Title 5, section 90-P must provide land use mediation 
program brochures to businesses that are pursuing permit applications with state agencies. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT "A" to H.P. 1334, L.D. 1810 
State agencies that administer land use laws and the Court Alternative Dispute Resolution 
Service must ensure that information about the land use mediation program is available in 
an electronic format on agency publicly accessible websites. 
The amendment also adds an appropriations and allocations section. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Revised: 04/02/12 
;tv&zc 
LD 1810 
LR2684(02) 
An Act To Provide Ongoing Review ofthe Effectiveness and Fairness of Land Use Laws and Rules 
mscal Note for Bill as Amended by Committee Amendment "If' ( H -q;lJ) 
Committee: Judiciary 
Net Cost (Savings) 
General Fund 
Appropriations/Allocations 
General Fund 
Legislative Cost/Study 
Fiscal Note Required: Yes 
Fiscal Note 
Legislative Cost/Study 
Potential current biennium cost increase - General Fund 
Potential current biennium cost increase - Highway Fund 
FY2011-12 
FY 2012-13 
$0 
$20,693 
$0 
$20,693 
Projections 
FY 2013-14 
$43,474 
$43,474 
Projections 
FY 2014-15 
$45,632 
$45,632 
The estimated cost for 2 interim meetings of this committee are projected to be $5,000 annually beginning in fiscal 
year 2012-13. If additional meetings are held the estimated cost for each additional meeting is $2,500. The 
Legislature's proposed budget includes $10,000 in fiscal year 2012-13 for legislative studies. Whether this amount is 
sufficient to fund all studies will depend on the number of studies authorized by the Legislative Council and the 
Legislature. 
This bill also includes a General Fund appropriation of $20,693 in fiscal year 2012-13 to increase a part-time 
Legislative Analyst position to full-time effective January 1,2013 in order to provide the required staffing to the new 
legislative committee. The General Fund costs for the position change increase to $43,474 in fiscal year 2013-14 and 
$45,632 in fiscal year 2014-15. 
Fiscal Detail and Notes 
This legislation creates a process for landowner relief related to regulatory takings. Depending upon the number or 
extent of any lawsuits filed, both General Fund and Highway Fund costs could be increased as a result of any 
payments to landowners. The additional costs to the Judicial Department can be absorbed utilizing existing budgeted 
resources. 
LR2684(02) - Fiscal Note - Page 1 of 1