Legislature(1993 - 1994)
03/22/1994 01:35 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 178
"An Act relating to civil nuisance actions; and
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providing for an effective date."
Representative Brown provided members with AMENDMENTS 8 and
9 (copies on file). She explained that Amendment 8 would
clarify the 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 nuisances. 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 the 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 then 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
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there are legal opinions that statutes cited would only
cover public nuisances. She suggested that if the intent is
to reflect that the statute definitions should apply to a
private nuisance then 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
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OPPOSED: Parnell, Therriault, Foster, Grussendorf, Martin,
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.
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Representative Therriault MOVED to REPORT HCS CSSB 178 (FIN)
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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