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Articles 1 - 19 of 19
Full-Text Articles in Law
Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier
Maine Law Review
In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …
Property Tax: A Primer And A Modest Proposal For Maine, Clifford H. Goodall, Seth A. Goodall
Property Tax: A Primer And A Modest Proposal For Maine, Clifford H. Goodall, Seth A. Goodall
Maine Law Review
Property taxation has been viewed for years as the perfect “dragon to be slain” and by most “as both bad and doomed.” In spite of being one of the most commonly questioned and scrutinized issues by voters and politicians, property taxation survives as the primary revenue source for local governments. Maine's experience is an example of this continuing debate. The 2005 reform attempt by the Legislature known as LD 1 is the most recent example. Municipal over-dependence on the property tax, rising property values, unfunded state mandates, loss of federal revenues, and increased spending has significantly increased the percentage of …
Some Model Amendments To Maine (And Other States') Land Use Control Legislation, Orlando E. Delogu, Sam Merrill, Philip R. Saucier
Some Model Amendments To Maine (And Other States') Land Use Control Legislation, Orlando E. Delogu, Sam Merrill, Philip R. Saucier
Maine Law Review
This model legislation consisting of ten separate provisions is intended to clarify and/or expand existing Maine law dealing with planning and land use regulation. It expands existing statutes by addressing a number of issues not presently covered by law. The overarching purpose of the proposed legislation is to underscore that planning and the imposition of land use regulations is not exclusively the responsibility of local governments but instead is a shared duty of the state and local governments. This is clearly stated in the text and commentary of Provision I, and is a theme that pervades all ten legislative proposals. …
Will Bell V. Town Of Wells Be Eroded With Time?, Sidney St. F. Thaxter
Will Bell V. Town Of Wells Be Eroded With Time?, Sidney St. F. Thaxter
Maine Law Review
In 1989, the Maine Law Court issued a landmark decision regarding the ownership of the land between the mean high-water mark and the mean low-water mark (the intertidal zone) in a case entitled Bell v. Town of Wells.1 This decision was controlled, in part, by the 1986 decision in the same case. Bell I was decided following an appeal by the plaintiff-landowners from the lower court decision dismissing Counts I and II of their Complaint as “barred by sovereign immunity.” The lower court found that “the State has an interest in Moody Beach and in that sense it has title,” …
Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka
Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka
Maine Law Review
In fiscal year 2004, Wal-Mart added 139 new discount stores, supercenters, and “neighborhood markets” to its already significant chain of stores across the United States. Wal-Mart developers submit their proposals to governing town bodies all over the country with the promise that the $20 million construction of a 200,000 square foot store will create 500 new jobs for the local economy, will have a payroll of over $12 million, will increase the tax base of the area, and will provide convenient, affordable shopping for consumers. For these reasons, the big box stores are a hard offer for town planners to …
Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu
Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu
Maine Law Review
No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to …
A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez
A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez
Maine Law Review
Takings doctrine is a mess. Let's just accept that and establish specialized federal and state "takings courts" to adjudicate takings claims. Takings claims arise when governmental conduct is alleged to detrimentally affect private property. Adjudication of takings claims may initially seem straightforward: the Fifth Amendment's Just Compensation Clause, as well as analogous state constitutional provisions, plainly provide that the government shall not take private property for public use without just compensation. In 1978, the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. Decades later, in 2005, the Court abrogated a test for takings that it had …
Weeks V. Krysa: Cultivating The Garden Of Adverse Possession, Marya R. Baron
Weeks V. Krysa: Cultivating The Garden Of Adverse Possession, Marya R. Baron
Maine Law Review
In Weeks v. Krysa, the Maine Supreme Judicial Court, sitting as the Law Court, found that cultivating a garden on a disputed parcel was an “occasional encroachment[],” insufficient to show intent to “displace the owner of the disputed lot or put the owner on notice” of being at risk of adverse possession. Under the traditional common law of adverse possession, cultivation of a garden is one of the hallmarks of an open and notorious use that would put a record owner on notice. However, after Weeks v. Krysa, a question remains as to whether cultivation of a garden will be …
Mcgarvey V. Whittredge: Continued Uncertainty In Maine's Intertidal Zone, Benjamin N. Donahue
Mcgarvey V. Whittredge: Continued Uncertainty In Maine's Intertidal Zone, Benjamin N. Donahue
Maine Law Review
In 2008, William McGarvey and Mary Klientop filed a declaratory judgment seeking a determination that their neighbor, Jonathan Bird, had no right to cross their intertidal land to reach the ocean to scuba dive. McGarvey and Kleintop own property that borders Passamaquoddy Bay in the Town of Eastport. As owners of oceanfront property in Maine, their title extends through the intertidal zone to low water mark in fee simple. The intertidal land they own also stretches in front of Bird’s property, bordering his property just below the high water mark. This configuration creates a strip that separates Jonathon Bird’s property …
Maine's Foreclosure Mediation Program: What Should Constitute A Good Faith Effort To Mediate?, Jesse D. Stewart
Maine's Foreclosure Mediation Program: What Should Constitute A Good Faith Effort To Mediate?, Jesse D. Stewart
Maine Law Review
The collapse of the housing bubble and subsequent financial downturn of 2008 unleashed a flood of foreclosure filings in the Maine courts, threatening the fundamental aspiration of homeownership for many Maine residents. This Comment examines the significant steps Maine has taken to address increased foreclosure filings through the implementation of a foreclosure mediation program and offers concrete suggestions to further improve the program.
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
Maine Law Review
Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect …
Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia
Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia
Maine Law Review
In the fall of 2010, the revelations that tens of thousands of foreclosure filings across the nation were likely fraudulent—if not outright criminal—sparked a nation-wide investigation by all fifty state attorneys general to assess the extent of the scandal and its potential impacts, but also to consider likely legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state’s Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit “unfair” and “deceptive” practices, which are described loosely in these laws, and often give …
Not Losing The Forest For The Trees: Distinguishing Conservation Transfer Fees From Other Private Transfer Fees, Frank C. Aiello
Not Losing The Forest For The Trees: Distinguishing Conservation Transfer Fees From Other Private Transfer Fees, Frank C. Aiello
Maine Law Review
Private transfer fee covenants against real property are increasingly under fire from Congress, federal regulators, and state legislatures. This fire has been fueled by strong advocacy from the National Association of Realtors. It will only be a matter of time before private transfer fees will also be challenged in state courts as not meeting the common law requirements for a servitude. As these bodies take aim at the private transfer fee, they literally must not lose sight of the forest for the trees. A private transfer fee that benefits conservation and environmental stewardship is consistent with the traditional use of …
Fishing, Fowling, And Dockominiums: Maine's Need For A New Approach To Public And Private Intertidal Rights, Agnieszka A. Pinette
Fishing, Fowling, And Dockominiums: Maine's Need For A New Approach To Public And Private Intertidal Rights, Agnieszka A. Pinette
Maine Law Review
In the sixteenth century, Queen Elizabeth recognized the public’s inalienable right to the sea. Despite the intuitive concept embodied in the Queen’s pronouncement, a centuries-old debate over the public’s right to the seashore continues to occupy the attention of Maine’s bar and bench. In 2011, for example, the Supreme Judicial Court of Maine, sitting as the Law Court, handed down a decision that maintains Maine’s prevailing judicial analytical framework for resolving property disputes in the intertidal zone. In McGarvey v. Whittredge, the plaintiffs, claiming ownership of the intertidal zone, brought an action in trespass and sought a declaratory judgment that …
The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke
The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke
Maine Law Review
As the local food movement gains critical mass around the country, deep and important issues concerning food system policy arise. The modern American food system spans from agricultural production to food processing to food consumption, and finally, to health outcomes. The system’s components include economic, environmental, social, political, and scientific aspects that interact in ways that far outstrip any one discipline’s capacity to analyze and resolve problems. Additionally, the system is profoundly shaped by a complex architecture of laws and regulation. With much credit to the local and regional food movements, people have begun to question not only the current …
Zoning And Land Use Controls: Beyond Agriculture, Lisa M. Feldstein
Zoning And Land Use Controls: Beyond Agriculture, Lisa M. Feldstein
Maine Law Review
If one were playing a word association game and were asked what comes to mind when the terms “food” and “land use” are given, chances are high that the response would be “agriculture.” Yet every stage in the food system, from being grown or raised through being consumed, is place-based. Put differently, everything that happens with our food system involves land use in some way. Even the acquisition of aquatically sourced foods requires a journey that begins from the shore, and yet it is rare to consider the profound ways in which our every interaction with food system utilizes or …
Legal Institutions Of Farmland Succession: Implications For Sustainable Food Systems, Jamie Baxter
Legal Institutions Of Farmland Succession: Implications For Sustainable Food Systems, Jamie Baxter
Maine Law Review
The legal institutions relevant to farmland succession—defined as the transfer of property in and control over farmland—are increasingly important determinants of sustainable environmental outcomes on modern farms. The history of farmland succession has been written, by and large, through extra-legal processes of transfer and inheritance between generations of close family relations. This familiar “family farm” model, however, is rapidly being replaced by succession arrangements between non-relatives, often strangers, with entrant farmers from non-agricultural backgrounds. As a growing number of current farmers retire and seek creative ways to transfer control and ownership of their farms, the availability and content of property …
Of Asthma And Ashtrays: Examining The Rights Of And Exploring Ways To Protect Maine Tenants Living In Multi-Unit Rental Housing Who Are Involuntarily Exposed To Secondhand Tobacco Smoke In Their Homes, Amy K. Olfene
Maine Law Review
Toxins found in tobacco smoke are deadly, and there is no safe level of exposure. Secondhand smoke contains over 7,000 chemicals, 69 of which are known to cause cancer in humans. In fact, the U.S. Environmental Protection Agency (“EPA”) has declared secondhand tobacco smoke a Group A carcinogen, a rating “reserved for those compounds or mixtures which have been shown to cause cancer in humans, based on studies in human populations.” Exposure to tobacco smoke can cause a number of diseases and ailments in both smokers and nonsmokers; in addition, such exposure can exacerbate existing illnesses. In the United States, …
Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan
Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan
Maine Law Review
Over the last twelve years the estate tax has been eviscerated. Evolving from a tax at 55% on all estates over $675,000 to a tax at only 35% on estates over $5.12 million per person ($10.24 million for a married couple); the estate tax now taxes only about 5,300 estates per year, as opposed to over 58,000 estates in 1999. In an era of language decrying class warfare, why abandon this project of the estate tax? Is it too late to save the tax? Are there reasons to save it? Why have an estate tax in the first place? Libertarian …