Legislature(1993 - 1994)

03/18/1994 01:30 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  SENATE BILL NO. 178                                                          
                                                                               
       "An  Act  relating  to  civil  nuisance   actions;  and                 
       providing for an effective date."                                       
                                                                               
                                2                                              
                                                                               
                                                                               
  Representative Brown provided members with AMENDMENTS  8 and                 
  9 (copies on  file).  She  explained that Amendment 8  would                 
  clarify that definitions of "nuisance" as a civil public  or                 
  private nuisance.                                                            
                                                                               
  Representative Parnell noted that a  motion was pending from                 
  the 3/17/94 House  Finance Committee meeting, to  report HCS                 
  CSSB178  (FIN) out of  Committee.  Representative Therriault                 
  WITHDREW  HIS  MOTION to  report  HCS CSSB178  (FIN)  out of                 
  Committee.                                                                   
                                                                               
  Representative  Brown  MOVED  to  ADOPT  AMENDMENT 8.    She                 
  stressed that Amendment  8 attempts to clarify  that current                 
  statutes and regulations regarding "nuisances" cover private                 
  and   public   nuicances.      She   observed   that   court                 
  interpretations have  found  that  "nuisance"  means  public                 
  nuisance.                                                                    
                                                                               
  MARIE  SANSOME,  ASSISTANT  ATTORNEY  GENERAL-GENERAL  CIVIL                 
  SECTION, DEPARTMENT  OF LAW  agreed that  Amendment 8  would                 
  clarify  that  private nuisances  would  be included  in the                 
  context  of  air  pollution  statutes  which   cover  public                 
  nuisances.                                                                   
                                                                               
  Representative  Hanley   referenced  18  AAC  50.110.     He                 
  suggested  that  if there  is a  violation  of the  terms or                 
  conditions of a statute or regulation  than a person has the                 
  right to sue for a private nuisance.                                         
                                                                               
  Ms. Sansome stressed that definitions of nuisances addressed                 
  by the amendment are related only  to the application of the                 
  statutes as  to public  nuisances.   She suggested  that the                 
  amendment would clarify subsection (d).                                      
                                                                               
  JIM  CLARK,  GENERAL  COUNSEL,  ALASKA  FOREST  ASSOCIATION,                 
  JUNEAU  observed that  the point  of measurement  is  at the                 
  property line.  He alleged that because showings are made at                 
  the property line  it does not matter  if it is a  public or                 
  private nuisance.                                                            
                                                                               
  Representative Hanley questioned  if 18  ACC 50.110  defines                 
  air pollution as a nuisance.                                                 
                                                                               
  Representative  Brown suggested  that the  Committee expects                 
  and  intends  that page  1,  line 12  triggers  statutes and                 
  regulations that  protect people from private  nuisances and                 
  therefore Amendment 8 is unnecessary.                                        
                                                                               
  Ms. Sansome referred to subsection (d) she noted that it was                 
  added at  the request  of Mr.  Clark.   She emphasized  that                 
  there  are  legal opinions  that  statutes cited  would only                 
                                                                               
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  cover public nuisances.  She suggested that if the intent is                 
  to reflect  that the statute  definitions should apply  to a                 
  private  nuisance that Amendment  8 should be  adopted.  She                 
  suggested  that  there  is  a  potential  conflict   between                 
  subsection (d) and section 2.                                                
                                                                               
  Mr.  Clark  reiterated  that  permits  are issued  based  on                 
  conditions at the property line.   Ms. Sansome and Mr. Clark                 
  disagreed with the interpretation of  statutes in regards to                 
  public  and  private  nuisances.   Mr.  Clark  asserted that                 
  Amendment 8  would interfere with  the affect of  the shield                 
  provided  by subsection (d).   He  alleged that  adoption of                 
  Amendment 8 would require changes to AS 46.03.900.                           
                                                                               
  (Tape Change, HFC 94-68, Side 2)                                             
                                                                               
  Co-Chair  Larson  reiterated Representative  Brown's concern                 
  that  the legislation apply to private nuisances.  Mr. Clark                 
  stressed that if a violation of  the permit occurs a private                 
  nuisance suit could be initiated.                                            
                                                                               
  Representative  Navarre  observed  that  permits  deal  with                 
  public nuisances.   He stressed  that if the  permit is  not                 
  violated  and  a civil  claim  existed the  private property                 
  owner would not  be able to bring action.   He restated that                 
  if there is a private nuisance  caused by something that did                 
  not violate a public  permit process an action could  not be                 
  brought.  He  summarized that  the issue is  whether or  not                 
  private nuisances are included in the public permit process.                 
  Mr. Clark reiterated  that if  there is a  violation of  the                 
  regulation the shield is down.                                               
                                                                               
  Ms.  Sansome  noted  that  according  to AS  46.03.870  (a),                 
  permits  and  regulations issued  by the  state are  for the                 
  benefit of the state and public and do not create a right in                 
  a person.  She doubted that  a person could demonstrate that                 
  the  violation of the air  nuisances statute created a right                 
  to a remedy.  Mr. Clark asserted that private nuisance suits                 
  are available except  when the  shield is up.   He  observed                 
  that  the legislation  describes when the  shield is  up and                 
  when it is  down.  Ms.  Sansome questioned if air  pollution                 
  regulations would cover private nuisances if the legislation                 
  is adopted.  Mr.  Clark maintained that the right  of action                 
  for  a  private nuisance  is  created  in section  1  of the                 
  legislation.                                                                 
                                                                               
  Representative Brown restated her  motion to ADOPT AMENDMENT                 
  8.   Representative Therriault  OBJECTED.  A  roll call vote                 
  was taken on the motion.                                                     
                                                                               
  IN FAVOR: Brown, Hoffman, Navarre                                            
  OPPOSED:  Parnell, Therriault, Foster,  Grussendorf, Martin,                 
                                                                               
                                4                                              
                                                                               
                                                                               
                 MacLean, Larson                                               
                                                                               
  The MOTION FAILED (3-8).                                                     
                                                                               
  Representative Brown  MOVED to  ADOPT AMENDMENT  9 (copy  on                 
  file).  She explained that the amendment rephrases AMENDMENT                 
  1.  The amendment would  provide that the shield is up  when                 
  there is  a "showing by  the licensee, permittee,  or person                 
  subject to  the order  that the proposed  activity will  not                 
  result in  any emission  or discharge  that is injurious  to                 
  human health or welfare, animal  or plant life, or property,                 
  or that would  injuriously interfere  with the enjoyment  of                 
  life or property; or".  She  stated that she understood that                 
  Amendment 8 was not adopted because the Committee feels that                 
  it is unnecessary  and that  private nuisances are  covered.                 
  She explained that Amendment 9 will  make clear that private                 
  nuisances are expressly addressed in the permitting process.                 
                                                                               
                                                                               
  Mr.  Clark  noted  that  Amendment  1  was  offered  by  the                 
  Department of Law.  He clarified  that a nuisance showing is                 
  not currently being made in respect to water.  He maintained                 
  that Amendment  9 would create  a new condition  which would                 
  make  the legislation  prospective.   There are  regulations                 
  requiring showings in regards to air and solid waste.                        
                                                                               
  Representative  Therriault OBJECTED  to the motion  to ADOPT                 
  AMENDMENT 9.  A roll call vote was taken on the motion.                      
                                                                               
  IN FAVOR: Brown, Grussendorf, Hoffman, Navarre, MacLean                      
  OPPOSED:  Therriault,  Foster,   Hanley,  Martin,   Parnell,                 
                 Larson                                                        
                                                                               
  The MOTION FAILED (5-6).                                                     
                                                                               
  Representative Brown referred to subsection (f).  Subsection                 
  (f) provides that  the state is  held harmless from  inverse                 
  condemnation.  She observed that the state of California has                 
  a similar  shield  in respect  to  timber operations.    She                 
  stressed that individuals are suing the state of California,                 
  not for inverse  condemnation, but for violations  under the                 
  permitting processes.                                                        
                                                                               
  Representative  Brown objected to line 30,  page 2, to award                 
  full  reasonable attorney  fees and  costs  to a  person who                 
  prevails in defense of a claim or court action.  She opposed                 
  changing the  rules of  civil procedure  in this  way.   She                 
  emphasized  that there  is currently judicial  discretion to                 
  look at the circumstances and determine how court costs  are                 
  spread.                                                                      
                                                                               
  Representative Therriault MOVED to REPORT HCS CSSB 178 (FIN)                 
                                                                               
                                5                                              
                                                                               
                                                                               
  out of  Committee with  individual recommendations and  with                 
  the  accompanying  fiscal  note.    Representative   Navarre                 
  OBJECTED.A roll call vote was taken on the motion.                           
                                                                               
  IN FAVOR: Foster,  Grussendorf,  Hanley,   Martin,  Parnell,                 
                 Therriault, MacLean, Larson                                   
  OPPOSED:  Hoffman, Navarre, Brown                                            
                                                                               
  The MOTION PASSED (8-3).                                                     
                                                                               
  HCS CSSB 178  (FIN) was reported  out of Committee with  "no                 
  recommendation"  and  with   a  zero  fiscal  note   by  the                 
  Department of Law.                                                           

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