Legislature(2005 - 2006)BUTROVICH 205
03/22/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB379 | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 379 | TELECONFERENCED | |
| + | HB 408 | TELECONFERENCED | |
| = | HB 318 | ||
| + | TELECONFERENCED |
HB 318-LIMITATION ON EMINENT DOMAIN
8:49:21 AM
CHAIR RALPH SEEKINS announced CSHB 318(FIN) AM to be up for
consideration.
SENATOR HOLLIS FRENCH commented that he read the Kelo case [Kelo
versus City of New London] and that the case centered on an
urban redevelopment plan in a downtrodden area of New London,
Connecticut. The upshot was that people who lived there for a
long time were going to lose their property. Pfizer was planning
on building a company there. The woman in the case lived in her
house since birth in 1918. The US Supreme Court 5-4 decision
upheld the taking and Justice O'Conner, who was opposed, wrote,
"Under the banner of economic development, all private property
is now vulnerable to being taken and transferred to another
private owner so long as it might be upgraded."
SENATOR FRENCH continued the decision that Alaska must make is
"what does public use mean?" Justice Thomas said that he would
revisit the public use clause and consider returning to the
original meaning of the public use clause - that the government
would take property only if it actually uses or gives the public
a legal right to use the property.
8:52:27 AM
SENATOR FRENCH stated the transfer of property simply for
upgrade is too great of power to put into the hands of
government and so he is behind that part of the bill.
8:53:48 AM
CRAIG JOHNSON, Staff to Representative Lesil McGuire, said the
overriding concern across the country is the taking of people's
homes. The home takes a little higher priority than perhaps a
back lot and there are provisions built into the bill that are
meant to protect the home.
8:57:26 AM
SENATOR GRETCHEN GUESS stated she had difficulty with the lack
of definition for "recreation."
MR. JOHNSON admitted that was a problematic thing to define.
9:01:19 AM
CHAIR SEEKINS said the intent of the committee was not to end up
with a 200-page document for the courts to have to deal with.
SENATOR FRENCH said the problem was with the intersection
between public use and recreational use. Justice O'Connor made
categories of what public use is. She said there are two easy
categories and there is a third hard one and that is where the
Kelo case came down. The two easy ones are controversial. First
the sovereign may transfer property to public ownership, such as
for a road, hospital or military base. Also the sovereign may
transfer private property to private parties who make the
property available to public use, such as a public utility or
railroad.
The conflict exists in a situation of a canoe launch at a river
and that splits the argument of whether that use was
recreational or not. He cited the example of the Seahawks
Stadium in Seattle where they tore down the stadium and built
another and that one could argue both ways of whether or not
that was recreational use or economical.
9:03:48 AM
SENATOR CHARLIE HUGGINS suggested they were witnessing a
scenario where the system went too far and so the bill seems to
swing too far the other way. He said he was uncomfortable with
the bill but supportive of the idea.
9:06:03 AM
SENATOR GUESS said the difficulty of the exemption on page 6,
line 4 was the phrase "rather than primarily for recreation,"
and the example that Senator French said could not be argued
under that provision because a road to a canoe launch could be
arguable.
MR. JOHNSON said the Department of Natural Resources (DNR)
drafted the language and the intent was to allow access to an
inaccessible trail.
SENATOR GUESS asked whether a for-profit hospital would be
excluded.
SENATOR FRENCH said yes, if it were defined as a private person.
CHAIR SEEKINS speculated that all committee members were in
favor of the concept of the bill but they want to make sure
there are no unacceptable unintended consequences. The Alaska
Municipal League (AML) approached him and asked the committee to
allow a city council, through public process, to be able to
override the provision.
9:09:45 AM
SENATOR FRENCH said the way the bill is phrased, the Legislature
can approve an economic taking of private-to-private transfer
but the Legislature cannot approve a recreational facility. The
exemption is listed in subsection (e). The local authority would
only extend to a private-to-private transfer and never to a
recreational facility.
MR. JOHNSON reported it was not the intent to have an absolute
moratorium on recreational facilities. He said he would have an
attorney look closer at that point and would accept a clause to
allow an out for that. As far as the municipality having an
overriding ability, that has been an item of discussion to date
and if they established a high level of standard to meet that
protects the intent of the bill then it could be acceptable.
9:14:18 AM
CHAIR SEEKINS asserted that a decision of that magnitude should
be made fully in the open with the people being able to comment
and vote on it. Because of the complex legal situations of the
day many things should be considered when considering the taking
of property.
SENATOR FRENCH reminded the committee that, in the Kelo case,
the city council had delegated the responsibility of the taking
of private land for economic development to a non-profit entity.
There was a lack of accountability and that could happen again.
9:16:33 AM
CHAIR SEEKINS said he saw an article where a New York mayor
proposed to use eminent domain to take a privately owned golf
course and give it to the area homeowners in order to increase
their property value.
SENATOR GUESS said people could easily get around the bill by
creating a non-profit entity. Also amendments can be put into a
bill at the final hour without going through a public hearing.
9:19:01 AM
MR. JOHNSON replied a non-profit by definition is considered a
private person so that would be private-to-private transfer.
9:23:13 AM
CHAIR SEEKINS said he has never seen a city take someone's back
yard for a municipal baseball field. The 250 linear feet
continues to be an object of discussion and some people would
prefer well over 1,000 feet. He asked whether the 250 feet came
about because of the coastal trail.
MR. JOHNSON responded that was not entirely correct. The bill
came about to protect private homes from municipalities. The 250
feet was an arbitrary number and ensures a certain amount of
privacy if someone were to take part of another's private rural
property.
9:28:31 AM
CHAIR SEEKINS said the committee would look at some of the
concerns and continue to hear the bill.
9:30:45 AM
CHAIR SEEKINS held the bill in committee.
| Document Name | Date/Time | Subjects |
|---|