Legislature(2001 - 2002)

04/15/2002 09:29 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
     CS FOR SENATE BILL NO. 278(JUD)                                                                                            
     "An Act requiring a good faith effort to purchase property                                                                 
     before that property is taken through eminent domain; and                                                                  
     providing for an effective date."                                                                                          
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
KIM  OGNISTY,  staff   to  Senator  John  Torgerson,   informed  the                                                            
Committee  that  this  legislation  "introduces   a  reasonable  and                                                            
diligent effort  clause that attempts  to place a comdemnor  of land                                                            
and  a private  landowner  in an equal  negotiating  position."  She                                                            
asserted that the bill  would not reduce the ability of the State to                                                            
acquire land by  eminent domain or complicate existing  proceedings;                                                            
but would rather require  the State to apply reasonable and diligent                                                            
efforts  to  negotiations  with  private  landowners  and  encourage                                                            
"reasonable offers,"  and that "striving to initiate  communications                                                            
from  a  more  equitable  bargaining  position  would  promote  more                                                            
productive  negotiations" and "facilitate  dialogue over  reasonable                                                            
concerns and encourage suggestions from all parties involved."                                                                  
                                                                                                                                
Ms.  Ognisty stated  that  approximately  twenty-three  states  have                                                            
adopted  similar measures  and the  intent of this  language  is "to                                                            
reduce  the amount of  litigation  by encouraging  more cases  to be                                                            
settled up  front." She noted  that a zero  fiscal note accompanies                                                             
the  current  version  of  the  bill;  however,   she  informed  the                                                            
Committee  that an indeterminate  fiscal  note accompanied  previous                                                            
versions.                                                                                                                       
                                                                                                                                
RICK KAUZLARICH,  Right of Way Chief,  Department of Transportation                                                             
and  Public Facilities,  testified  that the  Department  is not  in                                                            
favor of the bill, and  he voiced "exception to the inclusion within                                                            
the bill about  the reasonable and diligent effort."  He opined that                                                            
given his 22-years  of employment  as a right-of-way agent  with the                                                            
Department,  he could attest to the  fact that the Department  "does                                                            
act in good faith  to purchase property before it"  is condemned. He                                                            
stated that this  bill would further complicate "an  already complex                                                            
process."                                                                                                                       
                                                                                                                                
Mr. Kauzlarich  reminded the Committee that the Alaska  Constitution                                                            
specifies   that   no  property   shall   be  taken   without   just                                                            
compensation, and he elaborated  that the Department has established                                                            
procedures  to support that  objective. He  stated that the  process                                                            
involves  "the uniform  act" which  mandates  that each acquisition                                                             
file   include   documentation   of   ownership,   initial   contact                                                            
information, appraisals,  and community and individual  meetings. He                                                            
stated  that appraisers  hired  by the  Department  are required  to                                                            
provide  documentation  to  demonstrate  that  effort  is  taken  to                                                            
contact and provide information  to the property owner regarding the                                                            
appraisal process.                                                                                                              
                                                                                                                                
Mr.  Kauzlarich  stressed  that  throughout  the  negotiations,  the                                                            
Department's  right-of-way  agents  maintain contact  with  property                                                            
owners to address  and resolve issues that the property  owner might                                                            
have about  such things as the "configuration  of the project,"  the                                                            
affect  the project  might  have on  the property,  questions  about                                                            
valuation of the  property, and relocation of the  property owner if                                                            
need  be.  He reiterated  that  every  effort  is  made to  reach  a                                                            
consensus in order to avoid condemnation of property.                                                                           
                                                                                                                                
Mr. Kauzlarich  reiterated  that the entire  process is a matter  of                                                            
record  and  is  included   in  Departmental  files   to  create  "a                                                            
decisional  document" that identifies  negotiation steps  taken with                                                            
the  property owner.  He asserted  that  this process  provides  the                                                            
documentation  to prove that  the Department  "does make a  diligent                                                            
and reasonable  effort to ensure that people that  are affected by a                                                            
project get all the benefits that are due to them."                                                                             
                                                                                                                                
WILLIAM  CUMMINGS,   Assistant  Attorney   General,  Transportation                                                             
Section,  Civil   Division,  Department   of  Law,  commented   that                                                            
"extensive statutory  authority" exists that identifies  the State's                                                            
negotiation  practices  to assure  that individuals  whom the  State                                                            
acquires land  from are treated fairly. He continued  that the State                                                            
is  "pretty  successful"  in  its  acquisition   endeavors,  and  he                                                            
specified that  condemnation of property only occurs  in two to five                                                            
percent  of the right-of-way  acquisitions.  He  attested that  this                                                            
supports the position that the State works well with landowners.                                                                
                                                                                                                                
Mr. Cummings  continued that this  bill would amend AS 09.55.430  to                                                            
require a  statement be included  in each  file specifying  that the                                                            
State has conducted  the acquisition process diligently  and in good                                                            
faith.  He stressed  that this statement  "could  become a point  of                                                            
litigation  in the case where  opposing council  could stand  up and                                                            
pound on  the table and say  the State hasn't  been fair, the  State                                                            
hasn't been  reasonable, look  how pitifully  low the offer  is." He                                                            
voiced  that this could  result in  elevating the  valuation  of the                                                            
property, and as the State  has experienced with similar situations,                                                            
could  cause the delay  of a  project for  as long  as a year  while                                                            
further analysis  of the valuation is conducted. He  summarized that                                                            
the State "already is"  diligent and operates in good faith in these                                                            
matters, and that these  statute amendments would result in delaying                                                            
a  project  "while  this  relatively  complex  litigation   proceeds                                                            
forward."                                                                                                                       
                                                                                                                                
Senator Austerman summarized  that the Department's position is that                                                            
it already  conducts  the negotiation  process in  a reasonable  and                                                            
diligent manner before the eminent domain step is reached.                                                                      
                                                                                                                                
Mr.  Kauzlarich  responded  that  is  correct  as  "quite  extensive                                                            
negotiations" are conducted.                                                                                                    
                                                                                                                                
Senator Austerman  asked why the Department opposes  the legislation                                                            
since it already conducts business in this manner.                                                                              
                                                                                                                                
Mr. Kauzlarich  stressed that the  Department's concern is  that the                                                            
legislation  would  result  in  "additional  delays  to  an  already                                                            
complex process,  and allow in statute,  allow a reason for  further                                                            
delay  in a  project."  He explained  that  delays  in right-of-way                                                             
projects  generate substantial  cost increases,  and "that  the more                                                            
litigation,  the more time that the  attorneys get involved  in this                                                            
type of  situation, the  more delay  that we can  have." He  invited                                                            
Committee members  to examine any  regional file and see  the effort                                                            
that has been exerted "to  reach negotiations amicably with property                                                            
owners."                                                                                                                        
                                                                                                                                
Senator Wilken announced  that this bill is one of the bills that he                                                            
would like to get passed  this session. He voiced amazement that the                                                            
Department  is testifying that this  process is conducted  in a fair                                                            
and diligent  manner, yet  it does not support  legislation  to that                                                            
effect.  He opined  that there  is a reason  for this  bill, and  he                                                            
shared  that  two  small business  owners  in  Fairbanks  have  been                                                            
"jerked  around"  by the  Department  of Transportation  and  Public                                                            
Facilities  (DOT)  and  "the  heavy  hand  of  the  wealth  of  DOT"                                                            
concerning the valuation  and settlement of their separate pieces of                                                            
property.                                                                                                                       
                                                                                                                                
Senator Wilken continued  that one of these acquisitions is going to                                                            
trial,  and, he stated  that, after  looking  at the documentation,                                                             
"this  is embarrassing  that  our State  has not  settled this  and,                                                            
instead, has gone  forward with a very expensive,  for both parties,                                                            
litigation," involving  less than half a million dollars.  He stated                                                            
that the other  situation involved an individual who  settled out of                                                            
Court because he did not have the money to fight the State.                                                                     
                                                                                                                                
Senator Wilken  stated that  Senator Torgerson,  the sponsor  of the                                                            
bill, could relate  similar stories regarding experiences  of people                                                            
in the Kenai Peninsula  area. Senator Wilken stated that these cases                                                            
are examples  that the  Department  does not operate  in a  diligent                                                            
manner, and these  are the reasons why the bill has  been presented,                                                            
and why he considers it a "priority bill."                                                                                      
                                                                                                                                
Co-Chair  Kelly voiced that  while he supports  language  concerning                                                            
the  appraised value  of  the property,  he  questions  the need  to                                                            
include the diligent effort  report as specified in Section 2 (8) of                                                            
the bill.                                                                                                                       
                                                                                                                                
Senator  Ward  quoted  the sponsor  statement  as  saying  that  "by                                                            
requiring a reasonable  and diligent effort that this would create a                                                            
full  disclosure of  information."  He asked  whether  there is  any                                                            
information being  withheld from a property owner  under the current                                                            
procedure.                                                                                                                      
                                                                                                                                
Mr. Kauzlarich  asserted that all  the information available  to the                                                            
right-of-way staff is available  to the property owner. He continued                                                            
that  the goal  of the  process  is to  facilitate  "an exchange  of                                                            
ideas, and  an exchange  of information between  the property  owner                                                            
and the  Department  of Transportation  and Public  Facilities."  He                                                            
explained  that the  Division  "only  litigates over  necessity"  to                                                            
acquire a  piece of property.  He reiterated  his concern that  this                                                            
bill  "would  require litigation   over the  reasonableness  of  the                                                            
Department's efforts,"  as he understands that people  "may not feel                                                            
that  they are  getting what  they deserve  from  the Department  of                                                            
Transportation,  and  that is  why  the process  carries  on to  the                                                            
eminent domain  situation." He summarized that the  Department's job                                                            
"is  to  make sure  that  people  are  justly  compensated  for  the                                                            
acquisition of the property  and also to make sure that projects are                                                            
built."                                                                                                                         
                                                                                                                                
Senator  Ward asked  for confirmation  that  all  the material  upon                                                            
which  the final  and best  valuation of  the property  is based  is                                                            
available to the property owner.                                                                                                
                                                                                                                                
Mr. Kauzlarich confirmed that it is.                                                                                            
                                                                                                                                
Senator  Ward asked  what would  happen  if this  material omits  an                                                            
issue that is important to the property owner.                                                                                  
                                                                                                                                
Mr. Kauzlarich  responded  that in  a situation  where the  property                                                            
owner and the  right-of-way agent discussed an issue  but reached an                                                            
impasse in the  negotiations, the case would go into  litigation. He                                                            
continued that  if the property owner prevails, the  State would pay                                                            
the cost of the litigation.                                                                                                     
                                                                                                                                
JON TILLINGHAST, Attorney,  Sealaska Corporation, voiced support for                                                            
the bill. He shared that  similar legislation has been adopted by at                                                            
least 23 states and is  recommended by recognized authorities on the                                                            
process  of eminent  domain.  He stressed  that  the  intent of  the                                                            
legislation  is to  minimize litigation  and  to reduce acquisition                                                             
costs. He stated the argument  that as a result of this legislation;                                                            
the  State  would  "treat  the  private  sector  as  partners  in  a                                                            
negotiation rather than as victims."                                                                                            
                                                                                                                                
RON WOLFE, Representative,  Sealaska Corporation,  conveyed that the                                                            
Corporation  supports the bill and  the Committee's approach  to it.                                                            
                                                                                                                                
WILLIAM  SATTERBERG testified  from  an offnet site  to advise  that                                                            
rather than this legislation  being directed at the Department, this                                                            
legislation  proposes revisions to  the State's eminent domain  code                                                            
that  affects  the  State,  other municipalities   and governmental                                                             
organizations  as well  as the private  sector.  He cited ten  court                                                            
cases regarding  eminent domain that resulted in "massive  judgments                                                            
against" the  State. He asserted that  many people prefer  to settle                                                            
rather than enter into  litigation with the State because it is time                                                            
consuming and expensive.                                                                                                        
                                                                                                                                
Mr. Satterberg  suggested  that the  Committee request  an audit  be                                                            
conducted on the last four  years of eminent domain cases that would                                                            
reflect "the initial deposited  amount" offered by the State and the                                                            
judgment  or  settlement  that  was  reached.  He  stated  that  the                                                            
disparities in the amounts  would "amaze you." He stated that one of                                                            
the  problems  is that  the  State  condemns  a piece  of  property,                                                            
deposits money into the  Court registry and specifies that it be for                                                            
the benefit of the landowner.                                                                                                   
                                                                                                                                
Mr. Satterberg  argued that the money  does not benefit a  landowner                                                            
because  many people  cannot continue  to finance  their  litigation                                                            
proceedings  because the money  has to be  withdrawn to pay  for the                                                            
deed of  trust and obligations  such as appraisals  that could  cost                                                            
between $10,000  to $40,000 plus attorney  fees. He stated  that the                                                            
Committee   should  support  this   bill  and  should  additionally                                                             
recommend language be included  to specify that if the State chooses                                                            
to appeal a  "Masters Award," the  State should be required  to make                                                            
another deposit  in the Court equal  to the amount awarded,  as well                                                            
as pay for the  private party's expenses up to that  time. He stated                                                            
that 95 percent  of the State's cases  are funded by federal  money,                                                            
and  measures   should  be  undertaken   to  give  a  landowner   an                                                            
opportunity  to continue litigation  proceedings. He suggested  that                                                            
language be included  to the effect that the State  could not appeal                                                            
a Masters Award.  He urged support  of the bill and the addition  of                                                            
financial support for the landowners.                                                                                           
                                                                                                                                
PHIL  EVANS testified  from  an offnet  site  to detail  his  recent                                                            
experience  with the  State over condemnation  of  a portion  of his                                                            
property for a road construction  project. He stated that during the                                                            
initial negotiation  process, the right-of-way agent  was courteous,                                                            
but  misleading  in  the  attempt  to  convince  him  "to  accept  a                                                            
settlement  that   was  completely  unfair."  He  stated   that  the                                                            
appraiser  did not  provide him  with thorough  information and  was                                                            
insistent in her authority  to be on his property and utilize office                                                            
space  in  a  business  on  the  property.   He  asserted  that  the                                                            
"appraiser was  deceptively courteous and misleading  in her attempt                                                            
to promote  an unfair  evaluation  of the property,"  and he  stated                                                            
that  he  was not  provided  with  either  a complete  copy  of  the                                                            
appraisal or a market data  book. He stated that he could not settle                                                            
with the  State because  he considered  the  appraisal valuation  as                                                            
"totally inadequate and  unfair," and that rather than based "on the                                                            
highest  and  best  use  of the  property,"  it  was  based  on  the                                                            
property's  current use. He  continued that  the negative effect  of                                                            
such things  as loss of  parking, changes  in highest and best  use,                                                            
declined  market  appeal,   changes  in  the  business  use  of  the                                                            
property, and  decline in market value  were also not considered  in                                                            
the valuation of the remainder of the property.                                                                                 
                                                                                                                                
Mr. Evans  stated that when  it became apparent  that the State  was                                                            
misleading  and unfair  in the  attempt  to reach  a settlement,  he                                                            
hired an attorney  and an appraiser. He stated that  while the State                                                            
determined that just compensation  for the property was $80,229, the                                                            
appraiser he hired  valued it at $676,000, and the  Master's Hearing                                                            
appraiser  valued the property  at $324,000  for property taken  and                                                            
damages.                                                                                                                        
                                                                                                                                
Mr.  Evans stated  that  rather  than continue  the  litigation,  he                                                            
decided  to settle;  however, the  State opted to  appeal. He  noted                                                            
that   this   situation   has   incurred   expenses   amounting   to                                                            
approximately  $60,000, and that the  next hearing is not  scheduled                                                            
until 2003; however,  he is still incurring expenses  because of the                                                            
State's  demands  that he  provide  such things  as  eight years  of                                                            
profit and loss records,  income statements, and correspondence with                                                            
businesses,  attorneys and appraisers.  He stated that the  co-owner                                                            
of the property has not been asked for these records.                                                                           
                                                                                                                                
Mr. Evans  stated that  while the Department's  testimony  regarding                                                            
the  process  is  accurate,  he  questioned   what  the  bill  would                                                            
accomplish  other than suggest  that the  property owner hire  their                                                            
own appraiser.  He elaborated that  the State controls the  process,                                                            
condemns the land,  hires an appraiser to establish  values and upon                                                            
being challenged, the case  goes to a Masters Hearing to decide fair                                                            
settlement, which the State  then appeals. He opined that the State,                                                            
through  a costly intimidation  process, causes  the property  owner                                                            
"to fold." He  summarized that this legislation "needs  more teeth,"                                                            
and  while he  appreciates  that  the State  has  a job  to do,  the                                                            
landowner needs to be a participant in the process.                                                                             
                                                                                                                                
Senator  Olson asked  the  testifier  whether this  bill  adequately                                                            
addresses some of the difficulties associated with the process.                                                                 
                                                                                                                                
Co-Chair Kelly interjected  that the testifier voiced that this bill                                                            
does not adequately address  the process. Co-Chair Kelly pointed out                                                            
that the original  version of the bill includes language  that might                                                            
more adequately address some of the concerns raised.                                                                            
                                                                                                                                
                                                                                                                                
SFC 02 # 57, Side A 11:08 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Senator  Ward asked  whether  a binding  valuation  determined by  a                                                            
jointly approved  appraiser would be a feasible option  in resolving                                                            
a situation  where the  parties disagreed  on the  valuation  of the                                                            
property.                                                                                                                       
                                                                                                                                
Mr. Evans stated that would "be a reasonable approach."                                                                         
                                                                                                                                
Senator  Ward  stated  that   this  is  the  process  used  in  most                                                            
commercial transactions.                                                                                                        
                                                                                                                                
Co-Chair  Kelly  commented  that  while  language  included  in  the                                                            
original bill  might be more appropriate  than subsequent  committee                                                            
substitutes, further  revisions appear to be necessary.  He referred                                                            
the Committee  to a new committee  substitute in the bill  packet in                                                            
which language from the original bill has been reintroduced.                                                                    
                                                                                                                                
Senator Wilken moved "to  adopt the SB Number 278, original version,                                                            
for consideration."                                                                                                             
                                                                                                                                
Co-Chair Kelly  clarified that this version is SB  278, 22-LS1399\A.                                                            
                                                                                                                                
Without  objection,  the  committee  substitute  was  ADOPTED  as  a                                                            
working draft.                                                                                                                  
                                                                                                                                
Co-Chair Kelly stated that this version "contains more extensive                                                                
language regarding the appraised value of the property and the                                                                  
property owner" being supplied that information.                                                                                
                                                                                                                                
The bill was HELD in Committee.                                                                                                 

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