An Act To Connect the Citizens of the State to the State's Natural Resources by Establishing Standards for Relief from Regulatory Burdens
Maine Legislature, Session 127, LD 0309
Committee: Judiciary
Sponsors: COLLINS, NADEAU, BURNS, CUSHING, DAVIS, EDGECOMB, HAMPER, LANGLEY, MASON, WHITTEMORE
Amends: 2 MRSA §8, 4 MRSA §18-B

Legislative Document 
No. 309 
S.P. 124 
In Senate, February 10, 2015 
An Act To Connect the Citizens of the State to the State's Natural 
Resources by Establishing Standards for Relief from Regulatory 
Burdens 
Reference to the Committee on Judiciary suggested and ordered printed. 
HEATHER J.R. PRIEST 
Secretary of the Senate 
Presented by Senator COLLINS of York. 
Cosponsored by Representative NADEAU of Winslow and 
Senators: BURNS of Washington, CUSHING of Penobscot, DAVIS of Piscataquis, 
EDGECOMB of Aroostook, HAMPER of Oxford, LANGLEY of Hancock, MASON of 
Androscoggin, WHITTEMORE of Somerset. 
Be it enacted by the People of the State of Maine as follows: 
PART A 
Sec. A-1.  1 MRSA c. 22-A is enacted to read: 
CHAPTER 22-A 
REGULATORY TAKINGS 
§851.  Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1.  Affiliate.  "Affiliate" means a legal person that is related to another corporation by 
one owning shares of the other, by common ownership or by other means of control. 
2.  Fact finder.  "Fact finder" means a jury or, if the right to a jury is waived, the 
court. 
3.  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. 
4.  Real property.  "Real property" means land and any appurtenances or 
improvements to the land. 
5.  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. 
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.  Underlying governmental land use action.  "Underlying governmental land use 
action" means a regulatory proceeding preceding mediation pursuant to section 831 in 
which a property owner seeks and fails to obtain governmental approval for a use of that 
property owner's real property and in which the property owner has a right to judicial 
review under Title 5, section 11001 due to either a final agency action or the failure or 
refusal of an agency to act. 
§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 a professional 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 at the time 
of acquisition or immediately prior to the implementation of the regulation at issue, 
whichever is later, under the regulations then in effect and under common law; 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 contiguous parcel owned in whole or in part by the property owner and its affiliates 
and not merely the portion of any such parcel to which the regulation directly applies.  A 
property owner whose entire contiguous parcel, along with that of its affiliates, has not 
been diminished by at least 50% is not entitled to relief under this chapter. 
§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 August 1, 2016. 
§856.  Relief 
Damages are available as relief for a regulatory taking.  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.  Damages are limited to damages 
pursuant to Title 14, section 8105, subsection 1. 
§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 accrues. 
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 the period of mandatory mediation 
under section 859 and during the period of any relevant underlying governmental land 
use action and appeal thereof pursuant to Title 5, section 11001. 
§858.  Municipal mandates 
1.  Municipal regulation required by State.  If a state regulation requires a 
municipality to enact regulation, the municipality may not be held liable under this 
chapter for any regulation it enacts pursuant to that regulation.  Such regulation must 
instead be deemed state regulation for which only the State may be held liable.  If the 
municipality expressly provides in its enactment of the mandated regulation that it 
endorses the regulation, the regulation must be considered municipal regulation and not 
actionable as state regulation under this chapter. 
2.  Municipal immunity.  A municipality is immune from any liability under this 
chapter for any application of a regulation, state mandated or otherwise, and may not be 
considered a necessary or proper party in any mediation or action under this chapter, 
although the municipality may participate in mediation or an action under section 853 to 
the degree it chooses. 
3.  Appearance costs.  Any party in an action under this chapter who for whatever 
reason calls a municipal officer, employee or representative as a witness or deponent, or 
otherwise seeks action from the municipality, such as the production of documents, shall 
compensate the municipality for its actual costs in responding, as determined by the 
court.  
§859.  Mandatory mediation 
1.  Commencement.  Prior to filing an action pursuant to section 853, a property 
owner shall pursue relief under the land use mediation program established under section 
831, except as provided in this section. 
2.  Application.  The application of the property owner for mediation under section 
must include a professional appraisal indicating a 50% or greater diminution in value 
of real property caused by a regulation or regulations enacted after the effective date of 
this chapter.  By applying for mediation, the property owner consents to grant the 
mediator and the State reasonable access to the real property with advance notice at a 
time and in a manner acceptable to the property owner. 
3.  Ripeness.  Unless the impact of a regulation on the real property clearly and 
unequivocally in its terms acts as a 50% diminution in value of the real property, a 
property owner must seek a formal denial of a written request for development or 
variance in an underlying governmental land use action before the property owner may 
commence mediation under section 831.  The findings made in such an underlying 
governmental land use action are not admissible and have no estoppel effect in an action 
pursuant to section 853.  The property owner may, but need not, appeal the underlying 
governmental action under Title 5, section 11001 in order to make either the application 
for mediation or an action pursuant to section 853 ripe, and mediation must be tolled 
during the period any such appeal is pending. 
A property owner may seek to mediate and thereafter pursue a claim under section 853 
only when a regulation affects a use existing on the real property at the time the 
regulation is enacted or a reasonably foreseeable, nonspeculative use that is suitable for 
the subject real property and is compatible with adjacent land uses.  A use is reasonably 
foreseeable if there is evidence that the property owner intended in fact to develop that 
use or a similar use of similar intensity. 
4.  Notice.  All abutters to the property that the property owner claims has been taken, 
as well as any participant in any relevant underlying governmental land use action, must 
be notified by the property owner of the commencement of mediation under section 831, 
subsection 8.  Notice must be made by sending a copy of the mediation application by 
United States mail or hand delivery at the address on the latest property tax roll. 
5.  Identification of allowed uses; settlement offer.  If the State has not previously 
identified in any preceding underlying governmental land use action what land uses, if 
any, it will permit the owner to carry out on the real property that the property owner 
claims has been taken, the State shall do so in the mediation under section 831.  
Additionally, the State may present a written settlement offer to: 
A.  Swap or exchange real property; 
B.  Accept mitigation, including payments in lieu of on-site mitigation; 
C.  Accept location of development on the least sensitive portion of the regulated real 
property; or 
D.  Purchase the real property, or an interest in the real property or a portion of the 
real property, or pay compensation. 
If the State chooses, it may submit in an action under section 853 the list of identified 
allowed uses it previously provided the property owner and the content of any settlement 
offer previously proposed by the State, and it may ask the fact finder to determine 
whether a regulatory taking would be averted by the allowance of such previously 
identified uses or the terms of the settlement offer.  If the jury so finds, the State may, if it 
chooses, allow the previously identified uses or terms of the settlement offer in lieu of 
damages as relief. 
6.  Timing.  The schedule to be followed in the mediation under section 831 must be 
set by the mediator, but mediation must be completed no later than one year after the 
property owner applies for mediation, unless the State and the property owner agree to an 
extension. 
7.  Execution of settlement.  A settlement reached pursuant to mediation under 
section 831 must be formalized in writing and self-executing, and sovereign immunity to 
enforce a settlement against the State is waived. 
8.  Failure to reach settlement.  If a property owner and the State fail to agree to a 
settlement during the mandatory mediation process under this section, the property owner 
may file an action against the State under section 853.  If during mediation the State 
makes a bona fide settlement offer and the owner rejects that offer and proceeds to file a 
claim under section 853, the property owner is liable for the costs and fees of the State 
from the point in time of rejection of the State's bona fide settlement offer until resolution 
of the claim under section 853 as long as the resolution of the claim under section 853 is 
either a finding of no taking or the damages awarded under the claim under section 853 
are of a smaller dollar value than that contained in the State's bona fide settlement offer. 
9.  Fees.  The cost of the mediation is as set forth in section 831, supplemented by an 
administrative fee to be determined by the judicial branch. 
§860.  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.  The court may at its discretion also 
award to either party attorney's fees and costs for the mediation under section 831 if it 
concludes that the State did not make or the property owner did not accept a bona fide 
settlement offer in the mediation. 
Sec. A-2.  Judicial branch report on case load.  The judicial branch shall 
compile information regarding the number of cases filed in state courts pursuant to the 
Maine Revised Statutes, Title 1, section 853.  This information must include whether the 
cases at issue involve only a cause of action under Title 1, section 853 or whether these 
cases involve multiple causes of action, including a cause of action under Title 1, section 
853.  The judicial branch shall submit this information to the joint standing committee of 
the Legislature having jurisdiction over judiciary matters no later than February 1, 2017 
and every 2 years thereafter. 
PART B 
Sec. B-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; 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. 
5.  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 regulatory 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. 
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 under this chapter. 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 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 under 
this chapter 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 under this chapter 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 under this chapter, 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 under this chapter must be in writing. The 
landowner, the governmental entity and all other participants who agree shall sign the 
agreement as participants and the mediator shall 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 shall 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. 
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. B-2.  2 MRSA §8, as amended by PL 2001, c. 184, §1, is further amended to 
read: 
§8.  Land use mediation; obligation to participate 
Agencies within the executive branch shall participate in mediation under Title 5, 
chapter 314, subchapter II, 1, chapter 22 when requested to participate by the Court 
Alternative Dispute Resolution Service. 
Sec. B-3.  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, chapter 314, subchapter II 1, 
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, chapter 314, subchapter 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, chapter 314, 
subchapter II 1, chapter 22. 
Sec. B-4.  5 MRSA c. 314, sub-c. 2, as amended, is repealed. 
SUMMARY 
This bill establishes 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.  The bill provides that, if a property owner's right to use, divide, sell, occupy 
or possess real property is reduced by the enactment or application of a government 
regulation, the property owner may seek and obtain relief.  Under the provisions of the 
bill, prior to filing an action, the property owner must pursue relief under a land use 
mediation program.