Does Maine's LD 1217 takings bill just restate constitutional property protections, and is it retroactive?

Plain-English summary

This is a May 3, 1995 letter from Attorney General Andrew Ketterer to Representative Lloyd LaFountain answering two questions about LD 1217, "An Act to Protect Constitutional Property Rights and to Provide Just Compensation." LaFountain asked (1) whether the bill simply implemented the constitutional protections its title advertised, and (2) whether it applied retroactively to laws already on the books when it passed. The letter summarizes the office's views and refers the reader to a fuller legal analysis attached to the letter. That attachment is not part of the scanned letter reproduced here.

On the first question, the AG concluded the bill's actual provisions "depart markedly" from constitutional takings law. The bill, subject to exceptions, would pay landowners out of state and municipal treasuries whenever the aggregate effect of laws, ordinances, and regulations reduced a property's value for its unrestricted and most profitable use by 50 percent or more. By contrast, the AG explained, the many constitutional precedents in federal and state courts generally find a taking in only two situations: a government action that physically invades or publicly occupies private land, or a regulatory action that deprives the owner of all economic use of the entire parcel. The AG was aware of no constitutional provision or judicial interpretation contemplating LD 1217's scheme, and concluded the bill would create a compensation program "far in excess of any that is Constitutionally mandated."

On the second question, the AG read subsection 8 of the bill (the retroactivity provision) as containing two ideas. At the moment of enactment, the bill would apply retroactively only to laws, ordinances, and regulations that became applicable after January 1, 1995, a relatively narrow look-back. But over time, as regulatory laws inevitably change, new landowner claims could arise from the aggregate of preexisting laws once any new or replacement regulation supplemented them. The AG summed it up as "a multitude of opportunities for retroactive application": narrow at the start, broad over time.

The letter closes with a prediction. Because the bill created a new cause of action with no constitutional or judicial precedents to interpret it, the AG could only read its meaning from the bill's own language, and anticipated that such a law would "spawn extraordinary, even unprecedented, amounts of litigation involving potentially staggering fiscal impacts." The office said it would attend the public hearing and work session to answer further questions from the Judiciary Committee.

Currency note

This opinion was issued in 1995. 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.

Common questions

What did the AG say the constitutional standard for a taking was?

The letter described the general thrust of the federal and state precedents this way: a taking occurs either when a government action physically invades or publicly occupies private land, or when a regulatory action deprives the owner of all economic use of the entire parcel. A mere reduction in value, even a substantial one, did not fit that description. The letter did not cite specific cases by name; it pointed to a long history of court decisions and to the attached analysis.

Why did the AG say LD 1217's 50 percent trigger was different?

Because it would pay compensation when regulation cut a property's value by half, even though the owner kept substantial economic use. Under the constitutional standard the AG laid out, that situation was not a taking. So the bill created a statutory entitlement the AG described as going far beyond what the Constitution required.

Did the bill just protect property rights, as its title said?

The AG's answer was that the title and statement of fact said so, but the bill's substance did not match. The office concluded the bill would build a compensation program well beyond constitutional property rights rather than simply restating them.

How did the retroactivity provision work over time?

At enactment it reached only laws and regulations applicable after January 1, 1995. But the AG read it to broaden as regulations changed: each time a new or replacement regulation came in, the aggregate effect of the older preexisting regulations on that property could be counted too. The AG called this a multitude of opportunities for retroactive application.

Why did the AG predict so much litigation?

Because the bill created a brand-new statutory right with no constitutional or judicial precedents to guide courts in applying it. The AG expected landowners to assert the new right and anticipated extraordinary, even unprecedented, litigation with potentially staggering fiscal impacts.

Background and statutory framework

LD 1217 was a takings bill before the 117th Legislature's Judiciary Committee in 1995. Its title, "An Act to Protect Constitutional Property Rights and to Provide Just Compensation," framed it as an implementation of constitutional protections. The core mechanism the AG described was a compensation requirement keyed to a 50 percent reduction in a property's value for its unrestricted and most profitable use, measured by the aggregate effect of the laws, ordinances, and regulations applying to the property.

This letter is the AG's short summary to the requesting legislator. It expressly relies on a separate, fuller "Legal Analysis of L.D. 1217" attached to the original letter. That attachment, which would contain any detailed case discussion, is not part of the scanned letter reproduced below; readers who need the office's full reasoning should consult the linked source for the complete record.

Citations

• LD 1217, 117th Legislature, "An Act to Protect Constitutional Property Rights and to Provide Just Compensation"
• Subsection 8 of LD 1217 (the retroactivity provision)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19950503.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. The "Legal Analysis of L.D. 1217" attachment referenced in this letter is not included in the scanned document.

ANDREW KETTERER
ATTORNEY GENERAL

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

May 3, 1995

Representative Lloyd P. LaFountain, III
House of Representatives
State House Station #2
Augusta, Maine 04333-0002

Re: L.D. 1217, the Takings Bill

Dear Representative LaFountain:

Your letter to me of April 27 raises important questions regarding the meaning of L.D. 1217, "An Act to Protect Constitutional Property Rights and to Provide Just Compensation." Your questions are essentially (1) whether this bill would simply implement Constitutional protections of private property, as its title and statement of fact suggest, and (2) whether the bill by its terms would have potentially retroactive application to laws, ordinances and regulations in effect prior to its enactment.

Because of the significance and broad implications of this bill, my office has undertaken a thorough legal analysis of all of its provisions and, in doing so, has compared it to background principles of Constitutional law. For your convenience, I am attaching a copy of our analysis, which deals with both of the issues raised in your letter, among others. Accordingly, I will summarize below this office's views concerning your two issues, and refer you to the attachment for a fuller analysis.

The purpose of L.D. 1217, as reflected in its title and its statement of fact, is ostensibly to provide a statutory scheme by which Constitutional private property rights are protected and compensation is paid when there has been an unconstitutional taking of property by state or local government. However, the bill's actual provisions depart markedly from the principles of Constitutional takings law and Constitutionally protected property rights, as these have been construed over a long history of court decisions at both the federal and state levels. Although the bill's scheme is complex, subject to certain exceptions it essentially provides for the payment of compensation to landowners from state and municipal treasuries when the aggregate effect of laws, ordinances and regulations is to reduce a property's value for unrestricted and most profitable use by 50% or more.

By contrast to L.D. 1217, the general thrust of the many Constitutional precedents in both federal and state courts is that a taking of private property occurs (1) when a government action results in a physical invasion or public occupation of private land, or (2) when a regulatory action deprives the owner of all economic use of the landowner's entire parcel of property. While the history of court decisions interpreting Constitutionally protected property rights has evolved over many decades, we are aware of no Constitutional provision, nor any judicial interpretation of any Constitutional provision, that contemplates the scheme set forth in L.D. 1217. In short, this bill would create a statutory program that provides landowner compensation from the public treasury, far in excess of any that is Constitutionally mandated. In an array of areas detailed in the attached analysis, this bill's program of landowner compensation significantly departs from the fine Constitutional lines demarcated by our courts in their efforts to balance the public's need for protection of the general welfare with the rights of private property owners to continue to enjoy the essential attributes of ownership.

With respect to the retroactivity issue you raise, subsection 8 of the bill, though somewhat confusing, seems to contain two essential concepts: first, as of the moment of enactment, L.D. 1217 would appear to apply retroactively only to laws, ordinances and regulations that became applicable after January 1, 1995; second, over time, as federal, state and local regulatory laws inevitably change, new landowner claims may arise in the future from a reduction in property value caused by the aggregate of preexisting laws, ordinances and regulations when supplemented by any new or replacement law, ordinance or regulation. In sum, as we understand L.D. 1217, over time the bill would clearly present a multitude of opportunities for retroactive application. For a more complete understanding of this issue as well, I suggest that you examine the attached analysis.

The only other point that bears emphasis here is that L.D. 1217 presents many issues that would become matters of extensive controversy and debate, including in litigation initiated by landowners asserting their new statutory rights to public compensation. I anticipate that such a law would spawn extraordinary, even unprecedented, amounts of litigation involving potentially staggering fiscal impacts. At this point, on the many issues that the bill raises, including the retroactivity issue, we can only form a view of its meaning based upon our reading of the language in the bill, since there are no Constitutional or other judicial precedents upon which to draw in interpreting this new scheme. Accordingly, it is difficult to speak with certainty regarding the ultimate legal interpretations and implications of this bill were it to be enacted.

We do plan to attend the public hearing and work session on this bill, and look forward to answering any further questions that you or other members of the Judiciary Committee have at that time.

Sincerely,

ANDREW KETTERER
Attorney General

Attachment

cc: Senator Peter Mills, Senate Chair, Judiciary Committee
Representative Sharon Treat, House Chair, Judiciary Committee
Senator Joan Pendexter
Representative Edward Dexter