05/07/2004 09:58 AM House TRA

SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES                                                                              
                                                                                                                                
CHAIR HOLM  announced that the  final order of business  would be                                                               
CS FOR  SENATE BILL NO. 382(CRA)  am, "An Act relating  to replat                                                               
approval;  relating  to  the platting  of  right-of-way  acquired                                                               
through  eminent   domain  proceedings;  and  providing   for  an                                                               
effective date."                                                                                                                
                                                                                                                                
REPRESENTATIVE  OGG  moved  to  adopt CSSB  382(CRA)  am  as  the                                                               
working document.   There being  no objection, it was  before the                                                               
committee.                                                                                                                      
                                                                                                                                
Number 0463                                                                                                                     
                                                                                                                                
MARY  JACKSON,  Staff  to  Senator   Tom  Wagoner,  Alaska  State                                                               
Legislature, presented CSSB  382(CRA) am on behalf  of the Senate                                                               
Transportation  Standing Committee.    Ms.  Jackson informed  the                                                               
committee that  this legislation was introduced  upon the request                                                               
of the commissioner of the  Department of Transportation & Public                                                               
Facilities (DOT&PF).  The legislation  answers an immediate legal                                                               
issue  for a  project on  the Kenai  peninsula and  a project  in                                                               
Anchorage.                                                                                                                      
                                                                                                                                
REPRESENTATIVE STEPOVICH  asked if Ms. Jackson  was familiar with                                                               
any of  the concerns Representative  Wolf had regarding  how this                                                               
legislation would impact his district.                                                                                          
                                                                                                                                
MS.  JACKSON replied  yes, and  related that  Representative Wolf                                                               
just  discussed his  concerns with  the  representative from  the                                                               
Department of  Law who provided some  clarity on the issue.   She                                                               
acknowledged   that  Representative   Wolf  voted   against  this                                                               
legislation in its prior committee of referral.                                                                                 
                                                                                                                                
Number 0583                                                                                                                     
                                                                                                                                
PETER PUTZIER, Senior  Assistant Attorney General, Transportation                                                               
Section,  Civil Division  (Juneau), Department  of Law,  remarked                                                               
that CSSB  382(CRA) am  is very  narrow.   The primary  effect of                                                               
this legislation is  to change one sentence of AS  09.55.275.  He                                                               
explained  that  there were  two  back-to-back  challenges to  AS                                                               
09.55.275  in the  Anchorage  Superior Court.    The statute,  AS                                                               
09.55.275,  refers  to replat  approval,  which  he explained  is                                                               
DOT&PF  providing   notification  to  a   municipality  regarding                                                               
boundary changes  that might occur  in the context of  a highway.                                                               
Municipalities also  have to follow  this statute,  and therefore                                                               
have to provide notice and  obtain proper approval.  The argument                                                               
being made  and trying to  be changed  by this legislation  is in                                                               
relation to the last sentence of  AS 09.55.275, which says:  "The                                                               
platting authority  shall treat  applications for replat  made by                                                               
state  or  local governmental  agencies  in  the same  manner  as                                                               
replat petitions originated by private  landowners."  Mr. Putzier                                                               
noted  that some  of  the more  sophisticated  entities, such  as                                                               
Anchorage, have specific processes  for analyzing replat approval                                                               
or  petitions because  it's  a unique  procedure.   However,  the                                                               
argument  being made  in  court  is that  the  entire process  is                                                               
rendered improper  based on the mere  fact that the entity  has a                                                               
unique  procedure.   Mr. Putzier  opined that  he didn't  believe                                                               
that was  the intent back  when the  statute was passed  in 1975,                                                               
rather the intent  was for DOT&PF to provide notice,  not to tell                                                               
municipalities   how  to   analyze   replat   petitions.     This                                                               
legislation  merely clarifies  the intent  of the  legislature in                                                               
1975  and provide  municipalities the  right to  control how  the                                                               
replat process is conducted.                                                                                                    
                                                                                                                                
CHAIR HOLM  turned attention to  the second to the  last sentence                                                               
of  AS  09.55.275, which  read:    "However,  if a  state  agency                                                               
clearly demonstrates  an overriding  state interest, a  waiver to                                                               
the approval requirements  of this section may be  granted by the                                                               
governor."   He  asked if  the  governor can  override the  court                                                               
challenge.                                                                                                                      
                                                                                                                                
MR.  PUTZIER  answered that  theoretically,  it's  possible.   He                                                               
noted   the  difficulties   with  the   term  "overriding   state                                                               
interest."  He said that,  to his knowledge, the provision hasn't                                                               
been used  and it isn't clear  what would happen if  there was an                                                               
attempt to use it.                                                                                                              
                                                                                                                                
Number 0830                                                                                                                     
                                                                                                                                
CHAIR HOLM  noted that  a series of  things occur  before eminent                                                               
domain occurs  and the  property is actually  taken.   He related                                                               
his  understanding that  once  [the property  is  actually to  be                                                               
taken], this [court challenge] came into play.                                                                                  
                                                                                                                                
MR. PUTZIER agreed.                                                                                                             
                                                                                                                                
REPRESENTATIVE STEPOVICH agreed with  Chair Holm that the statute                                                               
specifies that the  governor could make a decision  in this case.                                                               
He  acknowledged  Mr.  Putzier's  comment  regarding  a  possible                                                               
challenge, and pointed out that anything can be challenged.                                                                     
                                                                                                                                
MR. PUTZIER  said that the  state couldn't realistically  rely on                                                               
the waiver as a means to  proceed with public projects.  There is                                                               
some  question,  he noted,  regarding  whether  the governor  can                                                               
exercise  his   authority  once  there  is   already  a  problem.                                                               
Arguably, the governor  has to make a decision before  there is a                                                               
problem.   Therefore,  every municipal  and  state project  would                                                               
have  to be  brought  to  the governor's  attention  in order  to                                                               
obtain a  waiver.   Mr. Putzier  opined that  such wouldn't  be a                                                               
good policy.                                                                                                                    
                                                                                                                                
CHAIR  HOLM  suspected  that  this  would  limit  the  "political                                                               
changing" of eminent domain.                                                                                                    
                                                                                                                                
MR. PUTZIER agreed.                                                                                                             
                                                                                                                                
Number 0966                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MASEK moved  to report  CSSB 382(CRA)  am out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.  There being no objection, it was so ordered.