Legislature(1997 - 1998)
04/14/1997 01:10 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 8 am - AIRPORT/SHOOTING FACILITY NOISE LEVELS CHAIRMAN GREEN advised members the only bill scheduled was SB 8 am, "An Act relating to the noise levels of airports and sport shooting facilities." Number 082 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Prime Sponsor of SB 8, stated that included in members committee packets was the sponsor statement, a zero fiscal note, sectional analysis and various letters of support. MR. HUBER advised members Senator Halford introduced SB 8 to provide protection for existing sport shooting ranges and private airports from nuisance law suits based on noise level. He stated that although it had not yet proven to be a significant problem in the state of Alaska, numerous sport shooting ranges and private airport facilities in the Lower 48 had found themselves in the situation of facing a law suit filed by someone who had moved into the area of an established operation, and later decided they did not like the noise. MR. HUBER pointed out that the issue was addressed by the Nineteenth Legislature with the passage of SB 274 by a wide margin prior to being vetoed by the Governor. He explained that during the committee review of the proposed legislation in the Senate, several concerns had been raised by the Alaska Municipal League, the Department of Law and the Department of Community and Regional Affairs. Mr. Huber advised members that the sponsor worked with those agencies to address the concerns and resolved them with Senate floor amendment. He noted that AML and DCRA confirmed that their concerns were addressed, and letters reflecting that could be found in member's bill packets. MR. HUBER referred to letters from the National Rifle Association, Alaska Air Carriers Association, Alaska Airmen's Association, Alaska Outdoor Council and Alaska Boaters Association who also endorsed the proposed legislation. Number 208 REPRESENTATIVE CON BUNDE understood that Colorado had similar legislation, and part of that legislation required that when someone brought suit against an airport or a rifle range for reducing the values of the property because of noise problems, that when the property was put up for sale the existence of that law suit was required to be available to potential buyers. REPRESENTATIVE ERIC CROFT advised members that he was curious as to the level of activity that the bill addressed and asked if the airports and shooting facilities could be defunct, and if so, what would be the substantial change in the use. He stated that if it was a nonoperating shooting range and he bought property near the range, what notice would he have of the noise level that would come and would it be a change in the substantial use of the facility when the noise level began. MR. HUBER advised members that the definition of "substantial change in the use of a facility" was part of what the Senate floor amendment dealt with. He stated that it added subsection (3), page 2, line 6, and the qualifiers for "substantial change in the use", could be found on page 2, beginning on line 28, and continued on to page 3. Mr. Huber advised members that it was the intent of the legislation and the sponsor to grandfather in the facilities that were in use, whether in use at the specific time of purchase, or whether they come back into use at a later date. He pointed out that it was not uncommon in the state of Alaska for a landowner to develop a piece of ground, build a house on the property and then build a private airstrip. At some point in time, the owner may choose to, or have need to sell his aircraft as well as other lots near the airstrip. If the owner was the only user of the airstrip and he sold his aircraft that would, basically, cause an interruption in the use of the facility, but the facility still existed. MR. HUBER stated that as adjacent pieces of property were sold, and two or three aircraft came back to the airstrip, it was the intent of the sponsor that it was still a facility that ought to be afforded the protection that SB 8 offered from a noise nuisance suit. Mr. Huber felt it was important to note that it dealt only with noise nuisance. If there were any other types of safety concerns, or any other type of nuisance action, SB 8 did not exempt the facilities from action on those. Number 522 REPRESENTATIVE CROFT referred to the definition of an "established facility" and what was required in order that a facility be considered established, and if there was a period of lack of use that would deem it no longer an established facility. Representative Croft referred to page 2, lines 17 through 21, which reflected a three year time period; however, on page 2, line 10, it talked about if the facility was established before the person acquired the property. He stated that "established" in that section, beginning on line 17, was not the same as how "established" was used on line 10. Representative Croft stated that it made sense to him that if he moved next door to an established shooting facility, he should not be able to complain about the shooting that took place there unless it substantially changed in character, but then comes the question, what is "established". If it was a facility used as a shooting facility three years ago, 10 or 20 years ago, he would not have the same sort of notice or degree of comfort with the bill as he would if the range was active at the time of purchase. Representative Croft asked that Mr. Huber explain what an "established facility" would be under the language on line 10. MR. HUBER advised members that the definition of "established facility" applied only to the time limitation on when suit could be brought. REPRESENTATIVE CROFT asked if the sponsor would have an objection to a similar definition of "established" that would address the language on line 10. He noted that if a facility had not been used for three years, it would not be an established facility when someone moved next door to the property. MR. HUBER believed the sponsor would have a problem with bringing the three year time limit, probably not so much as the bill applied to shooting ranges, but it also applied to private airstrips which could be visually seen as being in place. He noted that he understood the concern Representative Croft was getting to, with respect to the notice, but he believed that then one would have the opportunity to argue that resuming activity would fall under the change in the use of the facility exemption that was provided, which would, basically, put it back in the hands of the courts whether they believed the action was something that could be brought and something that they would hear. REPRESENTATIVE CROFT stated that the conversation, being on record, might cure the problem. He stated that if something had not been used for a long period of time, the resumption might be a substantial change in use. REPRESENTATIVE NORMAN ROKEBERG stated that it could be, but would not necessarily be a substantial change in use. MR. HUBER agreed, and stated that would merely offer a chance to argue and present that side to the courts, where the definition would ultimately be construed, and he felt it was important to note that the language stated, "substantial change in the use shall be strictly construed to maximize the immunity", and, "does not include a mere increase in the frequency of flights or the number of shots". Mr. Huber advised members that it was the sponsor's intent to provide as much protection as possible for those facilities that had been used for those activities in the past so they could continue to be used for those activities as long as noise was the only concern. Again, he stated that concerns, other than noise, were not addressed in SB 8. REPRESENTATIVE BUNDE advised members he had a modest problem with the three year limitation, knowing how long it could take to build, or rebuild an aircraft. He could see a person who owned a private airstrip to take upon himself to do sweat equity, or rebuild an airplane, it would take three years to do that and the airstrip may not have been used regularly during that interim period. Representative Bunde pointed out that there was what might be termed an adverse possession, or something, where a person had a trail across someone's property and he had to drive on it once every so often, and the person had allowed someone access to the property, it was necessary to block the trail off at certain intervals every few years for the purpose of establishing ownership. He asked if that was the sort of thing where if an airplane touched down once every three years it would be considered continued use, as well as if someone target practiced once a year at a rifle range. REPRESENTATIVE BERKOWITZ asked if any such suits had been filed in the state of Alaska. MR. HUBER advised members no suits had been file in the state to his knowledge. REPRESENTATIVE BUNDE pointed out that he believed an individual in Eagle River who had a pioneer airstrip wanted to develop the lots and sell them, and neighbors had said the property had not been used as an airstrip for a number of years. MR. HUBER pointed out that to qualify his response, the sponsor had not done any research as to whether a case had occurred in the state; however, the bill did not come forward with the intent to remedy a specific situation, but with the idea of being proactive to a situation that had happened in areas of the Lower 48 that had urbanized and spread faster than in Alaska. REPRESENTATIVE BERKOWITZ asked what had happened to the suits that had been brought in the Lower 48. MR. HUBER advised members that it was his understanding that, generally, the suits had been resolved in favor of the existing facility; however, that was after time and money had been expended by the existing facility. He stated that the only penalty was not just having a case being found against one, but the time, money and effort involved in the actual litigation itself. Number 1052 REPRESENTATIVE CROFT directed members attention to page 2, lines 10 and 11, the prohibition on the nuisance said, "unless the facility substantially changes the use of the facility after the person acquires the property." He stated that if the property had not been used much, it would depend on when a person bought. If a person bought during a period of high use, that would be the type the person would have notice of and the use could not change. If a person bought during a period of little use, that would be the reference point. MR. HUBER stated that would be correct. REPRESENTATIVE JEANNETTE JAMES advised members that she knew of cases in the Lower 48 where a lot of trouble had been made for airports in particular. She pointed out that the bill addressed two very important issues in the state of Alaska, especially as more people were moving up to the state. Representative James advised members that was she was willing to go a little further out on the limb for airports and shooting ranges because in Alaska, where air transportation was extremely important, it seemed to her that the ability to maintain the existing facilities was very important. She felt that airports and shooting ranges should have an exceptional immunity, as opposed to other things, because of Alaska's lifestyle. Representative James felt it was appropriate to address the issue now before being faced with some of the same problems the Lower 48 was experiencing. Number 1250 REPRESENTATIVE BERKOWITZ asked to what extent the bill would interfere with municipality's ability to regulate its own areas within its own jurisdiction. MR. HUBER advised members that the immunity that the bill offered facilities from nuisance noise action, also offered for municipal ordinance. He noted that was where the item of contention and where the concern from AML and DCRA came from. Mr. Huber advised members the bill limited only the municipality's ability to control those facilities specifically by noise ordinance; not for safety concerns, not for changes in the area, and would exempt zoning laws. Mr. Huber pointed out that the bill did grandfather facilities in to subsequent noise control ordinances that would be offered at the municipal level, which was why the substantial change in the use of the facilities exemption was added on the Senate floor. REPRESENTATIVE BERKOWITZ stated that the municipality would still be free to regulate, based on health or safety criteria. MR. HUBER stated that would be correct. CHAIRMAN GREEN pointed out that in some cases, a shooting range, or small airstrip might not be readily visible, and if not used for a period of time, would the bill eliminate the possibility of redress for a person who had bought property in the area, not knowing an airstrip or shooting range existed prior to his purchase, and then began to operate after a period of time. MR. HUBER advised members that it would eliminate the possibility of redress through a noise nuisance action. REPRESENTATIVE JAMES asked Representative Rokeberg if that would be a situation where a real estate agent would be required to disclose the existence of a facility, whether in operation or not. REPRESENTATIVE NORMAN ROKEBERG advised members that the legislature had seen fit to impose a disclosure statement on the alienation of any real estate, and he believed that would be a requirement in the circumstance referred to. CHAIRMAN GREEN did not believe something that was not located on a person's property would have to be disclosed, other than perhaps ethically. He did not know if an airstrip or shooting range that was not in operation would have to be disclosed. REPRESENTATIVE ROKEBERG asked if there had been discussions regarding a noise decibel or geographic boundary requirement in any other hearings on the bill. MR. HUBER stated that the bill did not deal specifically with noise decibel level, or with proximity to a facility; a discussion on those issues had not occurred. REPRESENTATIVE ROKEBERG noted that he did live in the shadow of the sound of the Anchorage International Airport and his district included the Lake Hood area and the strip spoken to in the attached report from the Airmen's Association. He asked if it would be correct to state that SB 8 would not affect the operations of any municipal or state owned airport. MR. HUBER said that would be correct. REPRESENTATIVE ROKEBERG stated that the airstrip referred to in the letter from the Alaska Airmen's Association regarding proposed real estate legislation, would not come into play, because the strip at Lake Hood was on state property. MR. HUBER said that would also be correct. REPRESENTATIVE ROKEBERG pointed out that there was a strip on the Hill Side area that had been there a number of years, and he was concerned that if they were talking about substantial changes of use, he could conceive a situation of going from a private utilization to some type of commercial utilization. He asked if anyone was aware of whether the use of a facility was changed who would have jurisdiction over the commercial use of a private airstrip. REPRESENTATIVE BUNDE advised members that airstrip was currently used commercially to rent tie-down spaces for people who did not own property immediately adjacent to the airstrip, and added that it had been used commercially for 20 years if "commercially" was defined as a business existing on the premises, which included a maintenance building and tie-down spaces. REPRESENTATIVE ROKEBERG stated that if there was an air taxi operation that commenced operation on the Hill Side strip would be covered as a substantial use, change of use, and/or would other authorities come into play there. MR. HUBER stated that a great deal of discussion on "substantial use" occurred in the Senate Resources Committee where the sponsor brought forward a committee substitute that incorporated "substantial change in use", and the concern of the Senate Resources Committee was the need for a definition of "substantial change in use" that dealt with a situation where there was a private airstrip that single engine recreational flights were operating out of. Mr. Huber stated that whether it was a touch down and take off three times a day or six times a day, in the sponsor's opinion, should not matter, but "substantial change in use" was included because if there was a facility, like the strip members referred to that was extended, paved and then have multi engine cargo planes utilizing the airstrip, that obviously was a substantial change in use and something that ought to be addressed through noise nuisance action or by municipal ordinance. Mr. Huber stated that, ultimately, "substantial change in use" would be determined by the court when an action is brought; however, he believed that just taking money for a flight, if it was still single engine, same type of aircraft, same type of use, would probably not make a substantial difference. Number 1714 REPRESENTATIVE JAMES stated that in thinking about how the bill would be implemented that it might be wise, particularly in the area of shooting ranges, to include a period of time that the shooting range or airstrip would sit idle. She stated that if a time period were stipulated in the bill, people who wanted to protect their property from being un-grandfathered, would be sure that time would not lapse. REPRESENTATIVE BERKOWITZ asked Mr. Huber approximately how many private sport shooting ranges there were statewide. MR. HUBER advised members he did not have that number right off the top of his head. REPRESENTATIVE BERKOWITZ asked for just a ballpark estimate. MR. HUBER stated that it was probably in the category of dozens. REPRESENTATIVE BERKOWITZ asked if they were subject to municipal or state licensing requirements. MR. HUBER advised members that he knew of no state licensing requirements, and believed that municipalities handled that in different ways. REPRESENTATIVE BUNDE noted that he could think of two in the Anchorage Bowl, one out at Birchwood, and up at Eklutna there was a person on his private property very consistently target practicing. He noted that a lot of homesteads in the state probably have their own target range where they shoot for sight-in purposes or practice shooting. REPRESENTATIVE BUNDE advised members that his perception of "substantial change", was if there had been a lack of activity for more than 12 months, and then the activity changed, that in his mind, that would constitute a substantial change. He pointed out that he tried to allude to earlier what Representative James just mentioned, that if an individual wanted to change the use of a piece of property, the owner would have to establish ownership and maintain ownership of the area annually, or for whatever period was required. Representative Bunde stated that he could see a situation where there was a shooting range or a private airport that once a year it would be expected that a few shots be shot off or land an airplane. REPRESENTATIVE CROFT declared a possible conflict of interest as a member of the Isaac Waldon [Ph] Shooting Range, and felt the bill may effect their ongoing operation. REPRESENTATIVE ROKEBERG asked if the bill sponsor considered the recommendations of the Airmen's Association regarding providing for notification, which would broaden the bill substantially. MR. HUBER advised members that letter was accompanying a letter of support for the bill as drafted, and inadvertently was included in the committee packet. He advised members that Senator Halford had talked to the person who sent that letter, and they were further researching whether that could, perhaps, be subsequent legislation that the Senator would like to introduce. Mr. Huber advised members that it would be the sponsor's intent to address that issue in separate legislation. REPRESENTATIVE ROKEBERG stated with respect to adverse possession, that under common law that would amount to a seven year period, either constructively or actively; however, he did not know what the present status was on that. CHAIRMAN GREEN pointed out it was a five year period in the state of California. REPRESENTATIVE CROFT advised members it was seven years and ten years. REPRESENTATIVE ROKEBERG advised members that he once had an opportunity to fly into the Talachulitna Lodge in a Cassa [Ph] 24, which was a dual engine plane well adapted to bush use. He pointed out that he could see a dual engine aircraft that was suited for a short field landing capability, and could see where a lot of private strips exist in lodges throughout the state where there was no other municipal regulation. Representative Rokeberg asked Mr. Huber if he was aware of any kind of environmental causes of action that could relate to law suits that could be brought by people in the environmental community to stifle the growth, and whether the bill would have any impact along those lines. MR. HUBER advised members that had not been a topic of discussion. REPRESENTATIVE ROKEBERG pointed out that a friend of his had a by- plane that had a reciprocating type engine which was a loud engine, and asked if the type of aircraft changed, would that be considered a substantial change in the use of the airstrip, such as a Cessna 206 to a Beaver. MR. HUBER felt it was important to note that the sponsor's intent with the proposed legislation was a lot in line with Representative James' comments, that flying airplanes and sport shooting in Alaska were activities that were historical and important activities in the state, and activities that the sponsor believed ought to be preserved and continue to be enjoyed. He stated that the bill clearly set out to provide the maximum immunity possible for those types of facilities and he would not interpret "substantial change" to mean that that was a reason for the owners of those facilities to have to endlessly justify whether it was a bore [ph] prop or not on the last plane that touched down on the strip. CHAIRMAN GREEN advised members he could understand that a Beaver would shake the houses as opposed to another single engine plane; however, if it was, and had been utilizing an operating facility it would not be affected by the "substantial change" provision of the bill. He was yet concerned with a situation where an airstrip or shooting range had been dormant for less than a three year period and someone buying that property, not even knowing the operation existed previously, and immunity would still come into effect. REPRESENTATIVE JAMES stated that if a deadline were included in the bill people would attempt to meet it. She pointed out that she was thinking of that as a protection measure, rather than a restriction; however, if a time frame were included in the bill it would be apparent that the use of the facility would have to be reestablished within that period of time. Representative James stated that once an area had been established, on private property, that it seemed to her that it should be grandfathered in and whatever it took to maintain the grandfather right should be allowed. She noted that other grandfather rights on real property was as long as the person owned the property, and she might like to see that in the bill. Representative James advised members she would like to specifically state that a piece of private property was protected for a specific use no matter who might come along and want to change that use, or sue for noise. Number 2263 MR. HUBER pointed out that it appeared that the main concern of the committee regarded the time frame. He advised members that subsection (3) was incorporated into Section 1 to bring in those type of unique, or peculiar circumstances in "substantial change, and the use of the facility". Mr. Huber advised members that the definition of "established" could be found on page 2, line 17, which said; "established" includes resuming shooting activity at a sport shooting facility if there has not been shooting activity at the facility for three or more years". He advised members it was not the sponsor's intent to mandate use of a facility at certain intervals; however, if a person bought property during the time the shooting range was not being used, and after that time the shooting range becomes active, as long as the person made his/her pitch and try to bring the suit to court that would state they were within the five year period after the facility reestablished operation, and qualified under the definition of established, it would bring the question down to "substantial change in use". At that point, MR. HUBER thought the argument could be made as to what the historical use versus the use at the time it resumed was there "substantial change in use", and that was the reason for subsection (3) in the bill, to handle unique and different circumstances. Mr. Huber reiterated that it was certainly the sponsor's intent to have the facilities that were in existence, stay in existence. Not to grandfather in those spaces, because there were other concerns that might happen. There could be a flight plan problem, another health or safety concern that could be raised, and if those legitimate concerns were out there, those facilities would have to fend as they could under the new circumstances they were in. Mr. Huber stated that for noise, specifically, the bill intended to provide the maximum immunity possible to those facilities. Number 2336 REPRESENTATIVE BERKOWITZ referred to "substantial change in the use", and not including a mere increase in the frequency of flights or the number of shots, and asked if that was to mean those would not be the exclusive criteria used to evaluate whether "substantial change" had occurred. MR. HUBER stated yes; if there were 4000 shots a week fired at the shooting range, and now the business was becoming more successful and firing 6000 shots per week, that that alone should not meet the "substantial change". REPRESENTATIVE BERKOWITZ stated that it could be used in concert with some additional facts, such as, target shooting at midnight or 3:00 in the morning. He added that that was an extreme example. MR. HUBER stated that the person would have to make the case as to why he/she believed that constituted a "substantial change" in the use of the facility. He advised members that it provided direction to the court that merely an increase in frequency in shots or flights was not sole justification of a "substantial change". REPRESENTATIVE BERKOWITZ noted that would be the case standing by itself, but it could be used if combined with other factors. MR. HUBER agreed that other factors, as well as any other angle a person could think of when putting the suit together would be the case. CHAIRMAN GREEN took testimony via teleconference and asked that Robert Larsen, from Mat-Su, present his comments to the committee. Number 2416 ROBERT LARSEN advised members that he was a long-time Alaskan and was involved in all of the pursuits that made noise, such as flying, sport shooting and hunting, et cetera, as a user. He wanted to advised the House Judiciary Committee that he and his wife supported passage of SB 8 as they would like to see some protection afforded to shooting ranges and airstrips. Mr. Larsen stated that he wanted to pass on that the Sand Lake Gun Club in Anchorage was shut down utilizing noise as an excuse to obtain property. He noted that he would be happy to relate the tale of how that happened if members were interested, but he felt some members probably remembered the incident as well as probably used the facility. Mr. Larsen pointed out that the location of the Sand Lake Gun Club was close to the airport where the noises of the jets were at least as noisy as gun shots and the Club sat on 25 very valuable acres. TAPE 97-56, SIDE B Number 000 MR. LARSEN stated that sometimes it was necessary to consider selfish motives and guard against those. REPRESENTATIVE BUNDE expressed his apologies, as someone familiar with the Sand Lake Gun Club and its story, he should have relayed that to the committee. He advised members that it was a very nice place. MR. LARSEN felt some members were probably aware of how the facility got shut down. REPRESENTATIVE ROKEBERG pointed out that that site was only just a few blocks from his home, and he recalled it well. He noted that it was now the area called Sportsman Point, probably the most exclusive residential area in the city Anchorage. LLOYD WEBER concurred with the statements made by Robert Larsen, although he wondered whether the bill went far enough in protecting the float plane operators. Mr. Weber pointed out that he could see the same issue arising on the lakes in the state. He stated that Wasilla Lake had been swarmed with a lot of restrictions, not so much with airplanes, but advised members he was a shooter and hunter, and had also been involved in aviation during the 25 years he had lived in Alaska. Mr. Weber noted that he had been aware of noise abatement for some time in the area of aviation and saw its encroachment becoming a grave concern to airplane owners. Mr. Weber supported the passage of SB 8. ROBERT REGES, Assistant Attorney General, Civil Division, Natural Resources Section, advised members that regarding the language "substantial change in use", that there was an interesting case out of Wisconsin, Kruger [Ph] v. Mitchell, 332 NW 2d 733, which involved an airport. The plaintiff had a business and the old airport was not paved and had a different alignment than the new runway. Mr. Reges stated that the owner realigned the runway and paved it and the court decided that was a nuisance, and their main reasoning was because it channeled the aircraft directly over the plaintiff's business, whereas before it was off to the side. MR. REGES stated that the question was discussed as to who might have control over noise from the federal regime, which he pointed out would be the Federal Aviation Association (FAA). He advised members there was an interesting United States Supreme Court case regarding noise from airports which was The City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, a 1973 case. Mr. Reges stated that most controls over airports were preempted by the FAA because most efforts to control noise at airports involved regulating hours when planes could land or take off, regulating size of aircraft, et cetera, and the FAA, obviously, had a vested interest in controlling that and not allowing localities to do certain things. MR. REGES explained that he raised those two cases in the same breath because in the Kruger case they analyzed the Lockheed case to some great length and decided that a local plaintiff was not preempted when seeking damages from the airport owner. He noted that in that case, the plaintiff was allowed to receive money damages for the diminution in value to his real property. Mr. Reges stated that he was not allowed to enjoin the aircraft activity because the injunctive relief that he sought was preempted by the federal government. He pointed out that that was one example of the compromises seen in the courts; while you cannot stop the planes from coming and going because maybe they have a connection somewhere else, you could receive money damages which went back to the comment regarding diminution of property value. MR. REGES advised members there were some interesting cases out of the state of Pennsylvania relating to shooting ranges. He pointed out that Pennsylvania, in the midst of several cases, adopted a law similar to SB 8. Mr. Reges stated that those cases were not dispositive, he thought the question earlier was, "what had happened in the Lower 48 when people had complained and brought nuisance actions". Mr. Reges stated that each of the two cases he would bring to the committee's attention were remanded, so it was not known what ultimately happened, but originally, the landowners were able to prevail on injunctive relief and in the course of their litigation and appeals, the Pennsylvania Legislature adopted a similar bill, and so both cases were sent back to the courts to be revisited in light of the bill. Mr. Reges advised members that the cases at issue were Gray v. Barnhardt, 601 A. 2d 924, which was a 1992 case, and Soja [Ph] v. Factoryville Sportsman's Club, 612 A. 2d 491, which was also a 1992 case. MR. REGES stated that in the absence of SB 8 and the absence of those sorts of protections, the property owners, even those who moved in after the fact, were able to prevail and do what apparently happened at Sand Point, which was limit the hours in which shooting took place, and then it was remanded. MR. REGES advised members that there was a case out of Arizona which involved two heavy hitters, Spur Industries v. Del Webb, 494 P. 2d 700. He noted that if any of the members ever played golf in Phoenix, they were probably familiar with Del Webb's Sun City West. Mr. Reges advised members that when Mr. Webb started to build Sun City West, the area consisted of cattle feed lots. The retirees, who were moving to Phoenix, did not envision moving next to a feed lot, so Mr. Webb and Spur Industries had some difficulties and Mr. Webb was coming to the nuisance issue that the feed lots were there first. Mr. Reges advised members that the Arizona Supreme Court said, "Well, times are changing in Phoenix. You cannot be a feed lot anymore, so we'll allow Mr. Webb to bring this case because we're not going to bar him from bringing the case just because he came to the nuisance. But we are going to take that into account in the remedy. Mr. Webb, you have to find a new home for the feed lot, and you have to help the owner acquire the property that you found." MR. REGES stated that was why it was called the seminal case, because they thought it was really how they fashion the remedy. The courts were not going to say Phoenix could not grow, or stifle growth through the use of the coming to the nuisance doctrine, which it did have a tendency to do. But, they were going to fashion the remedy and take into account the fact that he was there last and the other guy was there first, so the last guy would have to help the feed lot person find property, even if it meant financial assistance. MR. REGES advised members that was an interesting approach to coming to the nuisance which was the part of the bill he wanted to talk about. He explained that SB 8 adopts the coming to the nuisance doctrine as a complete bar to a plaintiff who was aggravated by the noise, et cetera, and that was not the doctrine that was shared by the judiciary, at large, in the United States. MR. REGES explained that under the concept of coming to the nuisance, what was being said was that a person could complain about another only if the complainant was there first. He stated that a person may complain about noise at an established facility, only if that person acquired his property before the noise maker started. Mr. Reges directed members attention to page 1, lines 8 and 9, which stated, "a person may not bring an action for noise level against a facility located within the vicinity of the person's property if the facility was established before the person acquired the property." Mr. Reges stated that there was the "unless" clause, so if there was a "substantial change in use", a person could still bring a cause of action; that it was not a complete bar, and was not a complete bar if there was something other than noise. However, if the noise maker was there first and he did not engage in the "substantial change in use", it was a complete bar. MR. REGES advised members that the judiciary had rejected that concept of it being a complete bar because that tended to stifle growth. He noted that a question had been posed as to environmental groups use that claim to stifle growth, and he submitted to the committee that the case law stood for the proposition that that type of complete bar was what stifled growth. Mr. Reges stated that the bottom line was that the courts say that it is a factor to consider in, a) the burden of proof on the plaintiff, and b) the remedy. They will not completely prohibit a person, or business from bringing an action, because nuisance was unreasonable interference, and if there was unreasonable interference, the court would allow the case to go to court, but they would take into account that the interference existed prior to the plaintiff getting there. MR. REGES wanted to make it known that the bill was adopting a somewhat atavistic approach to real property management, and a concept that was generally rejected in the judiciary in favor of saying that a person who brings a nuisance action for noise level against a facility, located in the vicinity of the person's property, must demonstrate that the noise was grossly unreasonable unless the facility substantially changed. That was what the courts generally do, they place an extra burden on the plaintiff to demonstrate that it was grossly unreasonable. MR. REGES advised members with respect to disclosure there was an Alaska case, Bevens v. Ballard, which was a State Supreme Court case out of 1982 or 1984, where the scope of the duty was not to engage in negligent misrepresentation. So, if he was a broker or a sales person, or a seller of land and said; "Oh, I've got a real nice quiet piece of property", knowing full well that a grandfathered shooting range existed in the area, that he would have then breached the disclosure requirements and had engaged in negligent misrepresentation. However, there was no duty on him to say; "Oh, by the way, you've got a really noisy neighbor and you can not do anything about it, see AS 34.75." So that was the scope of the duties. Mr. Reges advised members the person could remain silent, and if their were no planes landing, or no shots going off, the individual would not know, and there would be no obligation on the broker to reveal that, neither in the real estate commission disclosure form or in Bevens v. Ballard. Number 600 MR. REGES noted that the comment had been made that in Alaska, because of the lifestyle, exceptional immunity should be afforded. He submitted that that was what the bill did on page 2, lines 8 and 9. He stated that if that was the decision of the body, then fine, so be it, but he did not want that being done without everyone understanding, fully, what was taking place. REPRESENTATIVE ROKEBERG advised members that Bevens v. Ballard was modified by the disclosure legislation which was subsequent to the case; however, even without the disclosure legislation, Bevens would not apply. He asked if Mr. Reges was suggesting that the disclosure requirements now would not apply if there was a period of inactivity. MR. REGES advised members that he did not work with the disclosure statute on a daily basis; however, had had occasion to work with it recently. He explained that the disclosure legislation, essentially, codified Bevens v. Ballard, and did not go as far as most of the brokers and sales people go. Mr. Reges advised members that the legislation only dealt with residential property, and most discriminating brokers made disclosures even as to commercial property. Mr. Reges stated that it was his understanding of that legislation, and the case, that neither one required an affirmative disclosure of what the neighbor was doing. If there was an unreasonable interference, a nuisance in the vicinity of someone's property, he did not believe that legislation required its disclosure. REPRESENTATIVE ROKEBERG stated that it could also be a situation where the agent was not aware of the defect that would protect the agent under the new disclosure law, visa the Bevens case. He believed that unless there was a small shooting range that might be given away, generally, it would be obvious to a casual observer that there would be some activity there. MR. REGES believed the issue came up in the context of a facility that was dormant for some period of time and his comment would be there would be no obligation by anyone to alert the potential buyer that he was walking into a situation and would not, thereafter, be able to do anything about it because, unlike the judiciary, the legislature completely barred action. Number 733 CHAIRMAN GREEN asked if what Mr. Reges was saying was that there would be no recourse, if the bill were enacted, for a person to file a nuisance claim where during a 2 year plus shutdown period, property was sold, and then the facility once again began to operate. MR. REGES felt that he would adopt the interpretation of "substantial change in use" that was espoused by Representative Berkowitz; that if he was the plaintiff, he would go in and say; "Well, Your Honor, what's here is simply the mere increase in the number of shots and isn't a substantial change in use"; however, he stated that the scenario provided by Chairman Green reflected no shots or activity to the new property buyer. Mr. Reges stated that the facility might have been established, but it was not operating, so he felt the short answer would be that there still would be a cause of action under the "unless clause", page 2, lines 10 and 11, if he could prove that there had been a substantial change in use. Mr. Reges advised members he would have to focus his litigation on the "substantial change in use" language, as opposed to acknowledging that he'd come to the nuisance, and carrying a heavy burden and possibly demonstrating that it was grossly unreasonable; some other burden, or fashioning a remedy. He stated that more courts fashion a remedy to accommodate the concern. REPRESENTATIVE ROKEBERG asked if he would pursue that within the three year period of dormancy. MR. REGES stated, no, under Section 35.75.020, a person had three years from the change in use, so he would fall under line 16, within five years after the facility was established. His argument would be that they were not shooting when he got there, nobody told him it was a shooting range, it looked like woods to him because there was a buffer zone. Shooting then began, at some point he would complain and attempt to bring a nuisance action, the people say, no you can't, you're barred under this; he then would look at the statute and say, his only avenue would be to prove there was a substantial change in use, and he would have five years from the date they started shooting again to bring the action. Mr. Reges stated that his argument would be that the substantial change in use was the recommencement of shooting. REPRESENTATIVE BERKOWITZ asked if the intent was to limit nuisance actions. MR. HUBER advised members the intent of the bill was to provide some assurance of facilities addressed in the bill, sport shooting ranges and private airports facilities, to be able to continue maintaining those facilities for that use, and provide limitations on the amount or nuisance or noise ordinance activities that they would fall under after the fact. REPRESENTATIVE BERKOWITZ pointed out that the front paragraph gave him some concern because he believed it went far beyond just describing nuisance actions. He felt it was sweeping in anything that could possibly have an impact, even existing regulations or statutes that impact an action against a shooting range or an airport facility would somehow be swept away by that language. Representative Berkowitz believed that went further than the sponsor intended to go. MR. HUBER asked that Representative Berkowitz explain that further, and advised members he was looking at Section 1. which stated, "Limitation on actions arising from noise level." REPRESENTATIVE BERKOWITZ pointed out that it continued on to say; "Notwithstanding AS 09.45.230", which was the nuisance level, and "AS 11.61.110", was disorderly conduct, then continued to state, "and any other state or municipal law,". Representative Berkowitz claimed that was as wide as it could possibly get. MR. HUBER stated to continue on through the language, it stated, "a person may not bring a civil or criminal action against a person who operates or uses a sport shooting facility or a private airport facility if the action arises out of noise level". REPRESENTATIVE JAMES stated that she assumed that in the two other references there was the case of noise as part, but not all. REPRESENTATIVE BERKOWITZ advised members that his concern was today there could be a cause of action he could have against one of those facilities, that was a legitimate cause of action, but tomorrow after the legislation was passed, that cause of action would be barred because the language was so sweeping. He pointed out that it went beyond to simply someone moving to the nuisance. MR. REGES provided an "off the cuff" hypothetical. He stated that the prohibition in (a) did not apply to personal injury suffered by a person while on the premises. "Let's assume somebody next door suffers some sort of personal injury from the noise. He's barred from bringing that action under any state law, regardless of tort reform, whatever the tort program may be, you couldn't bring it." REPRESENTATIVE BERKOWITZ stated that currently that cause of action could be pursued. He stated that if he lived next door to a shooting range and it was too loud and his hearing went, currently, he could bring a suit claiming personal injury arising from the noise level, which would be the theory of the case. Whereas once SB 8 were enacted, he would be precluded from bring that cause of action. He could no longer say he had been living next door to the shooting range and his hearing had deteriorated over a period of time as a consequence. It was not a nuisance action, it was a tort action, personal injury action, and SB 8 would bar any action on his part. MR. HUBER advised members with the hypothetical situation put forth by Representative Berkowitz, he would concur with, that SB 8 would bar that action. He felt it was also important to get back to some basic premise, noting that they were speaking to a lot of hypotheticals and possible eventualities, but there was a basic premise that, at some point you made the choice to buy and live on the property next to a shooting facility. MR. REGES stated that under that hypothetical, the individual would be barred whether you came there first or later. He explained that the bar under subsection (a) was not limited to people who came to the nuisance; that could be found in subsection (c). Mr. Reges stated that the person could have been living in an area before a shooting range was established, and if someone's hearing was impaired, they would not have a cause of action because of SB 8. REPRESENTATIVE ROKEBERG pointed out that there was a provision in Section 2. for a transition date which provided the right to bring a cause of action, and then it spoke to the timing and asked Mr. Huber to further explain that. MR. HUBER advised members that any cases that were in the pipeline would be determined as if the law was not on the books, and was basically prospective in nature. Number 1193 REPRESENTATIVE ROKEBERG stated that the only period a cause of action could be brought would be after a three year period of dormancy if you could prove a "substantial change in use." MR. HUBER stated unless it met one of the three subsections under Section 1., which was the intent. CHAIRMAN GREEN advised members that was how he read it as well; if action was not brought within three years, action could not be brought. MR. REGES directed members attention to Section .020, page 2, line 13, which stated, "a person may not bring a nuisance action otherwise allowed under this chapter", and asked if the statute of limitation there was only for the nuisance action. MR. HUBER stated that would be correct. MR. REGES stated that it would not be for a contract action under (b) 1, of (b) 2. He stated that if a person had a contract action, the statute of limitations for breach of the contract arising out of noise was still six years, as provided in the statute. MR. HUBER stated that would be correct. CHAIRMAN GREEN asked that Mr. Reges further explain that. MR. REGES advised members he was trying to determine whether or not the statute of limitations established in AS 34.75.020 would prohibit a person from bringing an action under the three exceptions; (b) 1, (b) 2, or (b) 3, would limit it to bringing that action within five years after the facility was established, or three years after a substantial change. The answer he got from Mr. Huber was, no, it would not limit those causes of action into the first five years after it began operations, or the first three years after a "substantial change", because the statute of limitations section began, "a person may not bring a nuisance action otherwise allowed under this chapter", unless the action is brought within five years. Mr. Reges explained that if he was bringing a contract action, Section 34.75.020 did not apply. If he was bringing a personal injury action, Section 34.75.020 would not apply, and the statute of limitations that were otherwise established in the law control the time period he would have to bring those types of actions, which were preserved under (b) 1, and (b) 2. Number 1342 CHAIRMAN GREEN advised members that his problem still existed, that if the facility was not in operation and he wanted to bring an action as a new owner of property because the facility was starting to make noise, it would be down to the three year period because it was not a new facility. He stated that because it was a nuisance action, he could not bring action after the three year period. Chairman Green pointed out that if he bought the property yesterday and the three year period ran out today, he would not have a chance to file an action. Chairman Green noted that that was a hypothetical to the absurd, but it could take someone six months to even realize they had an action. MR. REGES advised members that it would be necessary to determine what was the substantial change in use; was it the cessation of shooting, the cessation of flights, or was it the recommencement of fights or shooting. He felt there was at least a reasonable argument to say that the "substantial change in use", was with a recommencement of shooting or flights. Mr. Reges stated that if a person bought a house and lived there for two years and 350 days, and shooting starts up again, under the law the range had been previously established because they did not cease operation for more than three years. Mr. Reges stated that then he would argue, and felt he could prevail, in saying the "substantial change in use" was the starting up of shooting then. MR. HUBER stated that the three year clock would start when the person experienced the change. CHAIRMAN GREEN stated that if he were the other attorney, he would say, yes; however, for the prior 25 years it was a shooting range and was only down for three years, so the "substantial change" would be the down time, not the shooting. MR. REGES felt that concern could be fixed in the definition of "substantial change in use". He stated that as noted by the sponsor's representative, Mr. Huber, there had been a lot of discussion among members about the dormant facility that recommenced, and it could be addressed in that manner. REPRESENTATIVE JAMES stated that it was line 11 that protected that. MR. REGES advised members that the person's cause of action was protected, but there was the concomitant statute of limitations, so just because a person had a cause of action did not mean it had not expired, and he felt that what members were groping with was how to prevent the cause of action from expiring before it accrued. REPRESENTATIVE ROKEBERG pointed out that the addition of the "substantial change of use", was a Senate floor amendment, so that issue had not had any debate in committee, and asked if that would be a fair assessment. MR. HUBER advised members he did not think that was a fair assessment, because the "substantial change in use" was debated in the Senate Resources Committee when the bill sponsor brought back a Resource committee substitute that incorporated "substantial change in use." He stated that at that time the committee felt uncomfortable adopting that committee substitute because there was no definition of "substantial change in use". Mr. Huber stated that what you get to if you make exceptions for every possible avenue being explored, is you do not want the bill. Mr. Huber reiterated that it was certainly the intent of the bill to provide additional immunity for those facilities. He advised members the Resources Committee failed to adopt the committee substitute, even though the prime sponsor chaired the committee that brought the committee substitute forward because they felt it was limiting what they felt the bill was trying to accomplish to too great an extent. Number 1606 REPRESENTATIVE JAMES stated that it seemed to her that the intent was okay, and page 2, line 11 indicated when a person could not bring a nuisance suit and it was because the facility was already there, unless the facility changed after a person acquired the property. She stated that when it goes down and referred to "established", it was then talking about the time limitation on nuisance action, and "established", would be resuming activity; but what if there was an acceleration of shooting activity, et cetera, and she could see why there was a little glitch, and she did not know if there was a way to fix it. Representative James thought the same language on line 11, page 2, could be included in the time limitation on nuisance actions, and preclude the door from being shut a day after the resumption of the activity. She thought it was important to have that three year time frame of the statute of limitations for bringing a suit. MR. HUBER felt one of the difficulties the committee was experiencing was somewhat of the difficulty the sponsor had in developing the definition for "substantial change in use", and the feeling of the sponsor was that there was no way to tighten that up through the legislative process to deal with all unique circumstances, and at some point, the decision would have to be left up to the court. Number 1774 REPRESENTATIVE ROKEBERG advised members with respect to the three year period of dormancy, that the bill provided for a longer period of dormancy than three years, but allowed the mover of a cause of action to bring the "substantial change in use" action within the three year period after the facility resumed operations. He asked if that would be correct assumption. CHAIRMAN GREEN stated that the words "or begins operation", would be when a facility started operating. REPRESENTATIVE ROKEBERG stated that the language stated "three years or more", so the cause of action could be brought within three years after the facility recommenced. MR. HUBER advised members that Section 34.75.020 dealt only with the time limitation on bringing the nuisance action. REPRESENTATIVE ROKEBERG agreed, and stated that there could actually be a dormancy period for longer than three years. He referred to page 2, line 18 and 19, which read; "if there has not been shooting activity at the facility for three or more years". MR. HUBER stated that there was specified period of dormancy. REPRESENTATIVE ROKEBERG stated that for record, he wanted to make clear that dormancy could be longer than three years. He stated that in the Chair's example as to when the property was purchased, there could be a dormant period of time, but after the facility recommenced activity, there would be the three year period to bring a cause of action. He stated that would protect the new property purchaser; he would have a three year window in which to bring a cause of action. MR. HUBER felt that played into the argument of, is resuming activity a "substantial change in the use of the facility", and as making a case and preparing a cause of action, he believed the longer the facility sat dormant the more it would lean towards the person bringing the nuisance suit to say; "yes, this thing hasn't been used in 25 years, and now they're shooting". Mr. Huber stated that it would be easier then, to make a "substantial change" case. Number 1965 REPRESENTATIVE PORTER asked if Mr. Huber could explain the effect of Section 2., on shooting ranges and airstrips that had been shut down now, and then the law goes into effect. He stated that if someone bought a piece of property after the law was in effect, but the range or airstrip shut down before the law was in effect, how would that affect the buyer's rights. MR. HUBER advised members that if the person wanted to bring suit, it would fall under one of the allowables in Section 1., subsections (b) 1, 2 and 3; back to the "substantial change in use of the facility". REPRESENTATIVE PORTER stated then that there would be retroactivity in terms of the facilities. REPRESENTATIVE ROKEBERG stated that would be historic use. MR. HUBER advised members that would be correct and that was exactly the intent of the bill, to grandfather in those activities. REPRESENTATIVE ROKEBERG stated that he agreed with the statement of Mr. Huber regarding the whole definition of "substantial change" would be up to the judiciary, and thought he was satisfied with that. MR. REGES stated that with the last exchange with Representative Porter, he would submit that whether or not the bill was retroactive turned on when a cause of action accrued, as the language was used on page 3, line 20. He stated that obviously, there were various arguments as to when a cause of action accrued if the facility was dormant today. Number 2131 DICK BISHOP advised members he was the Executive Director of the Alaska Outdoor Council, which was a statewide umbrella organization of outdoor user groups interested in sound conservation and fair allocation of use. He confirmed that the Council was in support of the bill and felt it was an important piece of legislation. MR. BISHOP expressed his appreciation of the committee's efforts in reviewing the bill very carefully. He pointed out that he was also trying to think of a situation that could be a real life situation, and was startled to realize that he was a real life situation in terms of the shooting range that he had on his own property. Mr. Bishop advised members that years ago when he bought part of a homestead there was a hole in the woods which became a shooting range and had been ever since. He stated that was 30 years ago, and meanwhile, the area had grown in terms of becoming a residential area, and it was entirely conceivable that at some point in time a legal objection might be raised to his family's shooting on that land. Mr. Bishop stated that the protection provided in the bill would be very helpful because it was an important alternative for people to be able to continue to pursue a lifestyle that included shooting and related matters. MR. BISHOP advised members that he was particularly interested in the Department of Law noting the prevailing opinion review, or posture of the courts with regard to nuisance actions, and that they generally did not like to preclude them somehow. Mr. Bishop stated that given the characteristics of how that was described, he felt made it all the more important that SB 8 pass, and that the judicial system be obligated to follow a law that was enacted in the best interest of the general public, rather than leaving the opportunity for the bench to interpret vagary of the law as they saw fit, which might not work to the benefit of the general public. Mr. Bishop urged that the committee pass SB 8 and help protect the interests of the public. Number 2389 CHAIRMAN GREEN noted that he had asked a lot of questions, and far be it for him to try to impede something like the intent of the legislation because in another life, in "Baha, Oregon" (California), there was an oil field in the Baldwin Hills where they had a big hollywood sign and finally a gravel road became a paved road, then houses moved in on the other side of the road which then imposed all kinds of restrictions to the operation of the oil field. He stated that, to him, was an irritation. Chairman Green advised members that he certainly supported the kinds of activities reflected in the bill; however, he did not want to have someone come in and buy property and then get hammered because of legislation passed in that three year period. TAPE 97-57, SIDE 1 Number 000 REPRESENTATIVE BUNDE moved to report SB 8 am out of committee with attached fiscal note and individual recommendations. REPRESENTATIVE JAMES objected for the purpose of making a statement. She advised members she thought it was extremely important to establish the fact that moving the bill forward did, in fact, make a special exemption for airports and shooting ranges, which was its intent, and her intent for sure, so there was no doubt what the committee did. With that, Representative James removed her objection. REPRESENTATIVE ROKEBERG stated that given his background in real estate development, he believed that Alaskans should do things the way Alaskans want them done, and notwithstanding the fact that the "coming to the nuisance" doctrine may be barred by SB 8, he fully supported it because the people's way of life in Alaska, which was unique in many instances, should be protected. REPRESENTATIVE BUNDE called for the question. There being no objection, SB 8 am was reported out of committee.
| Document Name | Date/Time | Subjects |
|---|