Legislature(1997 - 1998)
02/18/1998 01:35 PM Senate CRA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 285
SB 190 - ATTEMPT TO PURCHASE BEFORE EMINENT DOMAIN
CHAIRMAN MACKIE brought SB 190 before the committee as the next
order of business. As the prime sponsor of the legislation, he
turned the gavel over to Senator Phillips while he made his
presentation on the bill.
SENATOR MACKIE said he introduced SB 190 to bring fairness and
expediency to state and municipal government actions which require
the acquisition of private lands for public uses. The usual
practice is to acquire private property through condemnation
proceedings. This is a process where the governmental entity
exercises the power of eminent domain to take the property and
compensate the owner with or without the private owner's consent or
agreement. The only recourse for an unwilling owner is to
challenge in court the validity of the taking's public purpose and
the amount of compensation. In most cases the court's
consideration is principally to determine the appropriate level of
compensation. For both the governmental entity and the private
property owner, this can be an expensive and time consuming
procedure. For many land owners, the prospect of contesting a
condemnation proceeding in court is often beyond the landowner's
financial abilities to pursue. In these situations the landowner
is at the mercy of the governmental entity, the extent of its
property desires, and its method of determining compensation.
Senator Mackie said SB 190 would simply require that prior to
condemnation, a reasonable and diligent effort is made to purchase
private property through negotiations with the property owner. He
pointed out that at least 23 states have similar requirements. He
said he thinks it is reasonable to ask that the government entity
that's going to take the land makes every diligent effort to
negotiate with the person on a value and price prior to just taking
it because someone that doesn't have any money or an understanding
of the legal process could be overwhelmed with the bureaucracy and
be at a disadvantage in trying to protect his or her property
rights.
Number 325
SENATOR PHILLIPS invited Rick Harris to the table to testify on SB
190 and then turned the gavel back over to Chairman Mackie.
RICK HARRIS, Senior Vice President of Sealaska Corporation, said
the corporation has 330,000 acres of fee estate scattered
throughout Southeast Alaska, and eminent domain has become an
important issue to them, not because they are an ANCSA corporation
but because they are a private land holder within the state.
However, Sealaska has found that current eminent domain laws do not
provide the protections that they would like to have in their
dealings with the government.
Mr. Harris said SB 190 would add some additional protections to the
private landowner by requiring the government and other condemning
authorities to diligently attempt, in good faith, to purchase
private land before taking that land through the power of eminent
domain. Two prerequisites that would be critical to improve the
eminent domain law would be to require a diligent, good faith
effort to purchase, and to justify the particular property interest
that is being taken.
In his closing comments, Mr. Harris said Sealaska believes that SB
190 will level the playing field. The landowner and the state will
begin with an arms-length bargaining relationship. The landowner
will have the benefit of full disclosure of information used by the
state to determine the public purpose for the taking and value of
the interest taken.
Number 364
SENATOR PHILLIPS questioned why this is a problem because he has
been involved with a few of these situations in his own district
and they worked out fairly well. MR. HARRIS responded that
Sealaska has had several situations where eminent domain has been
used against them. He cited as an example the Kake Airport where
the Department of Transportation wanted to purchase the right-of-
way and required that the trees be cut down and retained at a low
level. Sealaska effectively has a piece of property that can no
longer be commercial forest land. He said they need a better
negotiating process in terms of how the state comes to them to
negotiate using their eminent domain authorities.
SENATOR DONLEY pointed out that if they've got a legitimate claim
and the state is not negotiating with them, they can go to court.
However, MR. HARRIS replied that the cost of litigation becomes
just as difficult as the negotiation. He said they are trying to
avoid going to court, but he suggested the legislation could be
strengthened further by requiring that when the condemning makes a
declaration of eminent domain that they have to pay that amount of
money and the landowner can use that money as a vehicle to
litigate.
Number 472
CHAIRMAN MACKIE commented that there are a lot of different
examples that can be used and the large private landowners, in most
cases, would always have the resources to negotiate, but the small
landowners may not have the resources, attorneys, etc., to
challenge the government. He questioned what is unreasonable about
asking the government to make a reasonable effort to negotiate with
the person prior to taking their land.
SENATOR DONLEY stated he agreed with the Chairman's philosophy, but
his fear exists in creating a new statutory test the Judiciary can
interpret in ways that were never intended be interpreted that way.
CHAIRMAN MACKIE said the committee would continue to take testimony
on the bill, but he acknowledged some work needed to be done on the
legislation to see if some language can be crafted that would not
create serious burdens of proof in the courts.
Number 540
LISA BLACHER, representing the Alaska Conservation Voice, stated
her group commends the intent of the bill, but they do have some
concerns with it. They question the term "interest to be taken,"
which appears three times in the bill, and believe the way it is
used is ambiguous and they question what it refers to. It is
suggested that the language either be deleted or defined more
clearly. She said it also appears that the bill may establish a
new level of right of compensation similar to regular proposed
regulatory takings legislation, and if so, they don't think it is
wise to open the door to the possibility of such financial
liability to the state.
Number 560
JOHN JENSEN, Chief Right-of Way Agent for the Central Region,
Department of Transportation and Public Facilities, stated he was
present to answer questions the committee may have about the
eminent domain process as it has been practically applied.
SENATOR PHILLIPS asked Mr. Jensen if there was a problem in
southeast as far as attitude or approaches is concerned. MR.
JENSEN acknowledged there may be a problem of attitude, but he
believes the department does make a good faith effort; however,
their differences typically and usually in compensation lead to
the frustrations addressed by Mr. Harris.
Number 579
SENATOR HOFFMAN asked Mr. Jensen if he thought the legislation
would assist in the eminent domain process. MR. JENSEN replied
that like Senator Donley he has some concern with the
interpretation of some of the language in the bill and the
possibility that it may delay the process.
TAPE 98-4, SIDE B
Number 567
CHAIRMAN MACKIE agreed that the language may need to be reworked,
but he questioned why the fear of something in the nature of a good
faith effort if they are already doing so. He doesn't believe it
will cause delays, but sometimes if it does cause a delay for a
short time, he thinks it is reasonable to protect an individual's
rights to property that they he may worked all his life to secure.
MR. JENSEN said he agreed with Senator Mackie, but his only
reservation is the unknown on how that language will be interpreted
even though they already do that.
Number 535
CHAIRMAN MACKIE stated SB 190 would be held in committee for
further work on its language.
| Document Name | Date/Time | Subjects |
|---|