Sunday, December 8, 2013
By A. MYRICK FREEMAN III
In a March 1 Maine Voices Column ("Bill would offer recourse when 'regulatory takings' hurt landowners"), Rep. Andre Cushing makes several useful points about the "regulatory takings" bill (L.D. 1810 currently before the Legislature). His conclusion that this bill is the most effective way to deal with the problems that he describes is not justified. In my judgment, L.D. 1810 represents bad economics and bad policy.
Regulations that restrict what a property owner can do with his property are appropriate where the actions of the owner cause harm to other parties and the owner has no obligation to compensate those who are harmed. If the property owner is required to compensate those who are harmed by his actions, there is an incentive to avoid those actions. L.D. 1810 would turn this concept on its head by requiring that those who would cause the harm be compensated for the regulation that would prevent them from causing harm.
Another way to look at this issue involves recognizing that it is implicitly based on a premise that landowners have a fundamental right to use their land in ways that cause harm to others and that they should be compensated whenever regulations interfere with that right. An assertion that landowners have such unlimited right has no basis in constitutional law. A logical corollary of this is that abutting landowners do not have a right to recover damages when one landowner's actions cause them harm. Again, this runs counter to a long tradition in American common law.
I have no doubt that there are instances in which regulations have gone too far in the sense that the harms to others that are prevented are small relative to the costs imposed on landowners.
The best remedy for "over-regulation" is to examine each regulation and to reject those that do not deal with a clearly identifiable harm to others or that impose costs on the landowners that are out of proportion to the harms prevented.
A. Myrick Freeman III is a resident of Georgetown.