Legislature(2005 - 2006)BUTROVICH 205
03/09/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| Confirmation: William A. Granger - Board of Governors of the Alaska Bar | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | HB 318 | ||
| + | TELECONFERENCED |
HB 318-LIMITATION ON EMINENT DOMAIN
8:59:34 AM
VICE CHAIR CHARLIE HUGGINS informed the committee that Chair
Seekins was in another meeting and then announced HB 318 to be
up for consideration.
PETER PUTZIER, Senior Assistant Attorney General, Department of
Law (DOL), offered to answer questions.
ED EARNHART identified himself as an activist in local
government and politics. He testified against HB 318 and said it
usurps the authority of local governments by preventing them
from using eminent domain related to economic and quality of
life developments. He noted eminent domain has been
inappropriately and illegally applied but the abuses of power
have been exaggerated and yet have positively served countless
communities. The people in New London, Connecticut whose houses
were taken were not poor, he claimed. Scare tactics are being
used to push this type of legislation all over the nation.
9:03:22 AM
MR. EARNHART continued the State of Connecticut allowed the
exercise of eminent domain to improve its economy with planned
development. He summarized by saying HB 318 is misguided and
claimed that the legislation was unnecessary.
9:06:18 AM
CHAIR HUGGINS asked for clarification whether he did not want
limits on eminent domain.
MR. EARNHART clarified his opposition was to the limits that the
bill sets up.
SENATOR HOLLIS FRENCH asked Mr. Earnhart whether his objection
was more toward prohibiting the taking of property for
recreational use or toward private-to-private transfer.
MR. EARNHART said both, and that he would prefer the bill use
the words "quality of life" instead of "recreation." Much of
what is in the bill constitutes more than sheer recreation, he
said.
9:08:45 AM
HOPE SHERMELL, Fairbanks, testified in opposition to HB 318. She
said each city and municipality should have their own rules and
regulations regarding eminent domain and that the state should
never enter into affairs of eminent domain.
CHAIR HUGGINS asked Ms. Shermell whether there was a specific
provision in the bill that she objected to.
MS. SHERMELL asserted it should be the city, municipalities,
and/or boroughs to handle such matters. It is a power that
should be limited to local government.
9:10:55 AM
RUTH BLACKWELL, representing the Alaska Association of Realtors,
said the realtors were about 95 percent happy with the bill. HB
318 would correct the Kelo versus New London case and would
ensure that people are more secure in their personal residences.
The Association would prefer to see a "no net loss" provision in
the bill. One percent of the landmass in Alaska is in private
ownership and taxed and they would like to see the recreational
land provision taken out.
9:12:53 AM
SENATOR GUESS asked Ms. Blackwell whether she thought that
anytime the state or municipality takes property off tax rolls
there should be a "no net loss" provision.
MS. BLACKWELL said that would be great but it is not reality.
The Association's main focus is on personal residences, home
ownership, and businesses. That is the foundation of the
industry and people should be secure in their homes.
9:15:30 AM
KEVIN RICHEY, Alaska Municipal League, advised the committee
that the League does not have a stance on eminent domain. They
promote the betterment of communities. Three of the largest
communities in Alaska have already adopted ordinances similar to
HB 318. He said there is no need under the Alaska State
Constitution to include municipalities in the bill because the
bill states that the "Legislature intends by this Act not to
provide an absolute bar on transfer of lands to private entities
but to place restrictions on such transfers when they occur." He
said adding municipalities would not be fulfilling the intent of
the bill. He offered to work with the sponsor to strengthen the
bill.
SENATOR GUESS asked Mr. Richey whether he was saying the bill
does not need Sections 4 and 5.
MR. RICHEY said yes.
CHAIR HUGGINS asked Mr. Richey whether he had anything further
to add.
MR. RICHEY advised the committee that the Alaska Municipal
League meets once a year. Revenue sharing and PERS are two top
issues but local control is very important to all
municipalities.
9:23:22 AM
CRAIG JOHNSON, Staff to Representative Lesil McGuire, said he
does not disagree with any of the previous testimony but that
the bill is an ongoing process and will most likely see some
modifications. As long as the basic premise of protecting
people's homes remains, Representative McGuire will not have any
problem with strengthening the bill.
SENATOR GUESS asked whether it was Representative McGuire's
contention that the Legislature should decide whether eminent
domain is a state or a municipality issue.
MR. JOHNSON said both. Certain issues should be made locally in
a zoning manner yet the private-to-private transfer and the
protecting of people's homes should be a policy of the state.
SENATOR GUESS noted the state could decide whether or not it was
a local issue.
MR. JOHNSON agreed.
SENATOR GUESS asked Mr. Johnson to explain how the 250 linear
feet was determined.
MR. JOHNSON explained the original draft of the bill had 1,000
feet. After much research they realized that area was bigger
than most city lots and so they tailored the area down so that
it would not block projects yet would be able to protect a rural
lifestyle.
9:28:49 AM
SENATOR GUESS asked him to respond to the Alaska Municipal
League's concern that Sections 4 and 5 do not belong in the
bill.
MR. JOHNSON responded it is from the policy that eminent domain
is the responsibility of the state.
9:30:53 AM
SENATOR FRENCH posed a hypothetical example of two property
owners, one that has an area of land taken for eminent domain
purposes to create a trail and the other who has no property
taken. He asked Mr. Johnson whether the latter property owner
would have any claim for complaint.
MR. JOHNSON indicated he would not.
SENATOR FRENCH asked whether the bill takes into account the lay
of the land around the property. For example, he asked, if the
latter property owner's view would be dampened by the trail,
would he have any claim to complain.
9:33:59 AM
MR. JOHNSON said he believes everything has been considered but
on a practical matter they don't want to "sacrifice the good for
the perfect."
SENATOR FRENCH referred to page 5, lines 7-10 and said he would
be irritated if the state were to take part of his backyard to
develop a bike trail. He said small boat harbors and sports
facilities don't seem to fit in with the list of others in that
section and expressed concern that the bill would prevent a
hockey rink or something of the like to be built in an urban
area.
9:37:10 AM
MR. JOHNSON agreed that was a future concern and the reason for
paragraph (7). However, a project such as that should take an
extraordinary effort and have to go through the extenuating
process.
SENATOR FRENCH asked whether something like that would require a
piece of legislation.
MR. JOHNSON said yes and that was the intent.
SENATOR GUESS asked Mr. Johnson whether the process of expanding
a small boat harbor would had been clearly discussed on the
record.
MR. JOHNSON noted there were not many small boat harbors
adjacent to homes and that people who build a home next to a
small boat harbor should be aware of the possible development
expansion.
9:39:52 AM
PETER PUTZIER, Senior Assistant Attorney General, Department of
Law (DOL), testified that the primary purpose of building or
expanding the small boat harbor would have to be recreation
before it would be barred. Secondly, it would have to be for
public use. He agreed with Mr. Johnson's observation that there
were not a lot of homes adjacent to any small boat harbors in
Alaska.
SENATOR GUESS asked Mr. Putzier the statutory definition of
"recreational."
MR. PUTZIER said there isn't one.
SENATOR GUESS suggested Auke Bay Harbor [Statter Harbor] in
Juneau where people live on their boats and store their pleasure
boats could be classified as a small, recreational boat harbor.
MR. JOHNSON countered that Statter Harbor is a commercial
harbor.
9:43:19 AM
SENATOR GUESS noted that line 8 references a playground. She
asked whether a playground associated with a school would be
excluded.
MR. JOHNSON said there would be nothing precluding the taking of
a private home to a build a playground for a school.
SENATOR GUESS referred to lines 14 and 15 and asked for the
statutory definition of "school program."
MR. JOHNSON responded that was part of a federal law requiring
safe trails to and from school.
MR. PUTZIER agreed that there is a federal program in place and
that language was intended to track that program.
SENATOR FRENCH asked for an explanation of the statutes listed
on Page 5, lines 26-28.
MR. PUTZIER explained they are in association with road
projects, landscaping, scenic enhancement adjacent to highways,
abandoned mine reclamation, public works, and historic,
prehistoric and archeological sites.
SENATOR FRENCH asked Mr. Putzier for an explanation of lines 29
and 30.
MR. PUTZIER advised that they refer to the parks function and
are intended to create consistency with Title 41.
9:47:16 AM
SENATOR FRENCH asked for clarification whether he was saying
that anything Title 41 leaves open that the bill also leaves
open.
MR. PUTZIER said that is correct. There is an open question as
to what authority does exist under those circumstances but to
his knowledge the state has never exercised eminent domain.
SENATOR FRENCH announced that he would confirm with the
Legislative Legal department.
[Senator Seekins rejoined the meeting and resumed as committee
chair.]
SENATOR HUGGINS asked Mr. Johnson to advise the committee about
previous discussions concerning eminent domain regarding
establishing traditional trails.
MR. JOHNSON said existing trails would not be subject to eminent
domain so there has not been any discussion to date. They have
protected access to and from state-owned right of ways to
hunting and fishing.
9:52:04 AM
SENATOR GUESS asked Mr. Johnson whether Section 1 was necessary.
MR. JOHNSON said the House Finance Committee left the findings
in to establish clear guidelines because the issue will
definitely end up in court. The sponsors do not want the courts
to have to speculate about the intent.
CHAIR SEEKINS asked for an example of "the taking of a
landowner's personal residence to develop an indoor or outdoor
recreational facility or project."
MR. JOHNSON pointed to the Anchorage Coastal Trail. He said the
original coastal trail took some property and some people were
not happy about it.
9:55:56 AM
SENATOR FRENCH said he was unaware of anyone's home being taken
for the Anchorage Coastal Trail.
MR. JOHNSON conceded that was not a good example.
9:59:52 AM
MR. JOHNSON added that the 250 feet line was open for
discussion.
CHAIR SEEKINS posed a hypothetical situation of a lake
surrounded by houses. He said nobody would be able to build a
bike path around the lake unless all of the houses were at least
250 feet back from the surface of the lake.
MR. JOHNSON agreed.
CHAIR SEEKINS noted access to navigable streams would be allowed
even if it were purely for recreational purposes. He asserted
that it was a right of the people of the State of Alaska to have
access to every navigable water and fishing stream and yet the
bill does not necessarily allow for a boat ramp.
10:03:21 AM
MR. JOHNSON said he conceded that past administrations have made
mistakes in selling state land along navigable waterways to
private owners. He suggested in the future Alaska must look hard
at any land transferred to private individuals.
CHAIR SEEKINS explained, as he understands current Alaska State
law, when the state disposes of state land they must provide
easement for access but he questioned the distance in feet.
MR. JOHNSON did not know and deferred to Mr. Putzier.
MR. PUTZIER deferred to the Department of Natural Resources.
WYN MENEFEE, Chief of Operations, Department of Natural
Resources (DNR), said when the state does sell or dispose of
land adjacent to a body of water they look at navigable access
and put a 50-foot access easement along the water body.
10:07:23 AM
CHAIR SEEKINS asked whether a person could assume there would be
at least one access method to a lake.
MR. MENEFEE said yes. He advised that there were past instances
where the state disposed of land without the 50-foot easement
established.
CHAIR SEEKINS noted if there were a lake or stream that did not
have a reserved easement, the riparian landowner might not have
an existing easement.
MR. MENEFEE said correct.
CHAIR SEEKINS asked whether the 50-foot easement specified in
current statute was sufficient for providing access to a
navigable waterway.
MR. MENEFEE said yes although it would not allow for a two-lane
road.
10:11:02 AM
CHAIR SEEKINS expressed concern over the definition of
"recreation." He asserted it was a fundamental right of the
people to have reasonable access to their property.
MR. JOHNSON reiterated the goal of the sponsor was not to affect
private-to-private transfer and was to promote protection of a
person's home.
CHAIR SEEKINS asked whether trust property had been discussed.
MR. JOHNSON said the short answer is that it is not protected.
Control is one of the things given up in a trust situation.
CHAIR SEEKINS held the bill in committee. There being no further
business to come before the committee, he adjourned the meeting
at 10:15:54 AM.
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