An Act To Promote Regulatory Fairness
Maine Legislature, Session 126, LD 1039
Committee: Judiciary
Sponsors: THOMAS, LOCKMAN, COLLINS, MASON, SHERMAN, CRAFTS, GIFFORD, TURNER, WOOD

Legislative Document 
No. 1039 
S.P. 353 
In Senate, March 14, 2013 
An Act To Promote Regulatory Fairness 
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218. 
DAREK M. GRANT 
Secretary of the Senate 
Presented by Senator THOMAS of Somerset. 
Cosponsored by Representative LOCKMAN of Amherst and 
Senators: COLLINS of York, MASON of Androscoggin, SHERMAN of Aroostook, 
Representatives: CRAFTS of Lisbon, GIFFORD of Lincoln, TURNER of Burlington, WOOD 
of Sabattus. 
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 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. 
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. 
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.  Measure of diminution of fair market value 
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 
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.  This option may be exercised only with the 
consent of the property owner. 
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 
An action or proceeding may not be brought or maintained under section 853 unless 
commenced within 3 years after the effective date of the regulation. 
§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 shall indicate that damages be awarded and, if the latter, 
the amount that the State is willing to provide as compensation or damages. 
4.  Inadmissibility of request and response.  Neither the property owner's request 
under subsection 1 nor the regulator's response under subsections 2 and 3 is 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, each party is responsible for its own 
attorney's fees and costs. 
§860.  Land use mediation program 
This chapter precludes use of the land use mediation program under Title 5, section 
3341. 
SUMMARY 
This bill establishes standards for relief when state regulation takes value from 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 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 to grant variances, which is an option consistent with 
general land use principles.