Would Maine's proposed farmland registration and setback bill create an unconstitutional taking of neighboring property?

Plain-English summary

In 1988, the Maine Attorney General's Office advised a legislative committee that a proposed farmland registration and setback bill likely fit within the Legislature's police power over zoning and land use.

The opinion favored municipal registration over filing in the county registry of deeds. Municipal filing matched local zoning practice, was simpler, and did not suggest that the law permanently changed title or transferred neighboring property rights to farm owners.

The proposed setback did not, by itself, amount to an unconstitutional taking. The opinion said a taking would require a showing that the restriction virtually eliminated the property's value and usefulness. The draft allowed some use within the setback, unrestricted use beyond it, and a municipal variance for undue hardship.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For legislators in 1988

The opinion regarded municipal registration, setback requirements, and a hardship variance as features consistent with ordinary land-use regulation rather than a conveyance of private property rights.

For farmers in 1988

Municipal filing was described as simpler and less costly than creating a title record in the county registry of deeds.

For neighboring landowners in 1988

The opinion did not treat every setback-related loss as a taking. It described the constitutional threshold as virtual elimination of the affected property's value and usefulness.

Common questions

Q: Why did the opinion prefer municipal registration? A: Municipal filing paralleled zoning and other local land-use records, avoided unnecessary title-record complications, and was expected to cost less.

Q: Did registration give farm owners new rights in neighboring land? A: No. The opinion said the Legislature could not vest farm owners with property rights already belonging to abutters.

Q: Did every development setback require compensation? A: No. The opinion said a taking would require virtual elimination of the property's value and usefulness, not merely a setback restriction.

Q: How did the draft address unusual hardship? A: It provided a municipal variance process so an affected owner could continue making reasonable use of the property.

Background and statutory framework

The opinion analyzed the new draft of L.D. 1746 as an exercise of legislative police power comparable to zoning and land-use laws protecting public health, safety, and general welfare.

It distinguished municipal land-use records from county deed records, which are designed for conveyances, liens, and permanent title notice. The takings analysis focused on remaining property use and the availability of a hardship variance.

Citations and references

The opinion discussed constitutional takings principles and zoning analogies but did not identify the cases referenced in the opposing letter by name.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880126.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

January 26, 1988

Robert Tardy, House Chairman
Legislative Committee on Agriculture
State House
Augusta, Maine 04333
Re: New Draft of L.D. 1746
Dear Bob:
You asked me to provide to you and the Committee a written summary of my legal observations made at the hearing last week on the above bill.
Legal concerns have been voiced by opponents of the bill in two areas. First, there has been the suggestion that the county registry of deeds should be used for purposes of registering farmland under this program. This would be in lieu of registration with the municipal office, as contemplated by the current draft of the bill. Second, some commenters have suggested the possibility that the bill, if enacted, would result in an unconstitutional taking of property without compensation. I will attempt to address each of these issues below.
It is my understanding that the current draft of the bill provides for registration of farmland in the municipal office for two reasons. The first is simplicity. There is little question but that registration at the municipal level would be less legally cumbersome than with the county registry of deeds. Secondly, having these records available at the town office parallels other zoning and local land use control ordinances, all of which are on file at the municipal level but none of which appear in the registry of deeds.
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This bill, if enacted, would constitute an exercise of the legislative police power, similar to a zoning or other land use regulatory law enacted for purposes of protecting the public health, safety and general welfare. This legislation is not, nor could it ever be as a matter of constitutional law, a vesting in farm landowners of property rights which are currently owned by their abutters. Accordingly, the registration of farmland under this program at the municipal level, and the availability of the resulting records at the municipal office, maintains compatibility with zoning laws. By contrast, registration in a registry of deeds permanently alters the title records of land and is more appropriate where there is a conveyance of proprietary rights in property (as in the case of the conveyance of a deed or the filing of a mortgage lien). It should also be noted that a fully effective record in the county registry of deeds (that is, one which is legally sufficient to assure proper notice to title examiners) would likely be very costly for the farm owner who is attempting to file a registration.
As to the constitutional issue, as indicated above, the format and substance of this bill parallels that of zoning and other land use control laws. If the Legislature determines that the setback and disclosure requirements set forth in this bill are needed in order to protect the public health, safety and general welfare, then I would think it very likely that a court would sustain the public purpose and rationale which stand behind this legislation. Similarly, just as with any other zoning or land use law, the mere fact that this legislation would impose a setback requirement for certain types of development does not constitute a taking by the government of private property. To demonstrate such a taking would require a showing that the setback restriction resulted in virtual elimination of the value and usefulness of the property involved. This legislation not only allows for some uses to be made of the land which is within the area of the required setback but also allows for unrestricted use of the land beyond the setback area. Finally, in a particular case where the effects of the setback requirement would impose an undue hardship on the affected landowner, this bill provides for a variance to be issued by the municipality so that the landowner can continue to make reasonable use of his property. Again, this variance procedure parallels zoning law and maintains the constitutionality of this legislation.
One final note. I am aware that in the last day or two your Committee has received a letter opposing this bill from an attorney for the Maine Bankers Association. While I have no interest in responding to the points which that letter presses as a matter of advocacy, I would like to briefly respond to the cases which that letter cites as supporting the proposition that this bill would create an unconstitutional taking. I am - 3 -

very familiar with those cases, and am of the opinion that they are more fairly read to support the constitutionality of this bill. The other legal issues raised in that letter have otherwise been addressed above.
If you would like me to elaborate on these issues or if I can be of further help to you or the Committee, please let me know.
Sincerely,

~ Jeffrey Pidot
Assistant Attorney General

JP:msg
cc: Zachary Matthews, Senate Chairman
Senator Thomas Perkins
Representative John Lisnik
Representative John Nutting
Representative Vinton Ridley