Legislature(2005 - 2006)BUTROVICH 205
04/06/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB318 | |
| HB400 | |
| HB272 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 272 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 318 | ||
| = | HB 400 | ||
HB 318-LIMITATION ON EMINENT DOMAIN
8:36:19 AM
CHAIR RALPH SEEKINS announced CSHB 318(FIN) AM to be up for
consideration.
CRAIG JOHNSON, Staff to Representative Lesil McGuire, and PETER
PUTZIER, Senior Assistant Attorney General, Department of Law
(DOL), introduced themselves for the record.
8:37:04 AM
Senator Gene Therriault joined the meeting.
CHAIR SEEKINS reminded the committee that they were working off
version X.A. He reviewed the previously adopted amendments to
the bill.
8:39:41 AM
SENATOR HOLLIS FRENCH noted there has not been a committee
substitute (CS) since the amendments.
CHAIR SEEKINS again reviewed the previously adopted amendments
to the bill.
8:41:06 AM
MR. JOHNSON advised the committee that there were further
proposed amendments in their packets. These are in response to
the committee's suggestions during the previous bill hearing and
also from the drafter's suggestions. He advised that the
proposed amendment titled 24-LS1083\XA.16 would delete the words
"personal residence" on page 4, lines 12, 13, and 21 and replace
it with the words "privately owned residence."
CHAIR SEEKINS noted that in order to do so the committee would
have to amend the findings section of the bill in order to match
the other sections that referred to "privately owned residence."
He asked Mr. Putzier to comment.
MR. PUTZIER advised that "personal residence" is already defined
in statute and that it is better to be consistent with
terminology. He did not see a need to change the intent
language.
SENATOR GRETCHEN GUESS asked the reason the committee didn't
just delete "landowners" so that "personal residence" remained
consistent. She said she forgot the reason the committee changed
the language from "landowners personal" to "privately owned."
CHAIR SEEKINS said he didn't recall the reason either.
MR. JOHNSON responded that it came out of a meeting in the
Chairman's office.
CHAIR SEEKINS set 24-LS1083\XA.16 aside.
MR. JOHNSON referred to 24-LS1083\XA.17 as purely a technical
fix. The new language in the bill should have been underlined.
SENATOR CHARLIE HUGGINS moved Amendment 7. Hearing no
objections, the amendment was adopted.
8:45:37 AM
MR. JOHNSON advised that 24-LS1083\XA.18 was an amendment that
would protect the home of a beneficiary of a trust.
CHAIR SEEKINS clarified that the amendment basically states that
if the beneficiary of a trust has occupied the residence then
that person's home is protected.
MR. JOHNSON said he spoke to a real estate professional who told
him that there is nothing that assures that type of disclosure
in the disclosure statement and so the amendment is sound in
that it would protect that new homeowner.
SENATOR HUGGINS moved Amendment 8. Hearing no objections,
Amendment 8 was adopted.
8:47:26 AM
MR. JOHNSON advised that 24-LS1083\XA.19 would delete "small"
from the phrase "boat harbor" and insert "fresh water" on page
5, line 8. This is to address a concern of Senator Huggins, who
wanted to protect the lakes and rivers of the Mat-Su Valley
while still allowing people in coastal areas the right to
utilize the power of eminent domain to access boat harbors.
SENATOR HUGGINS moved Amendment 9.
SENATOR GUESS objected. Although she appreciated the amendment,
she stated there was still a problem in that the committee has
yet to define "boat harbor" in the statutes.
MR. JOHNSON stated that if her concern was for transportation
purposes, that would still be allowed but since the bill was
strictly addressing recreational purposes, her concern was
unwarranted.
SENATOR GUESS disagreed saying that since there is no definition
of "boat harbor" the committee was restricting something that
has no definition.
CHAIR SEEKINS admitted that was a problem, although he felt
fairly comfortable with page 6 and the list of things not
included on lines 2-4. He said it was not the intent of the bill
to preclude boat launches or temporary tie-up areas.
8:51:30 AM
CHAIR SEEKINS continued with concern that the phrase "primarily
for recreation" was not defined. He promised Senator Guess that
he would continue to work on her concern as well.
SENATOR GUESS withdrew her objection to Amendment 9. Hearing no
further objections, Amendment 9 was adopted.
8:52:07 AM
MR. JOHNSON advised that 24-LS1083\XA.20 was not a necessary
amendment and asked Mr. Putzier to explain.
MR. PUTZIER said the amendment was originally drawn when there
was a paragraph 7 under subsection (d), which was the
"legislative out." Therefore the committee wouldn't need the
amendment but would need to have an amendment adopting a
reference to the "legislative out" in the new subsection (f),
which is addressed in an upcoming amendment.
8:54:00 AM
MR. JOHNSON explained that 24-LS1083\XA.21 was up for
discussion.
SENATOR FRENCH asked whether this document would augment the
previously adopted Amendment 5.
MR. PUTZIER clarified that 24-LS1083\XA.21 would be offered in
lieu of the other amendment. There is a problem with saying that
only the state may delegate eminent domain powers because
"state" was unclear and it could be any entity of the state.
This amendment makes it crystal clear that the powers may only
be delegated by statute.
SENATOR GUESS asked for time to digest the amendment.
8:57:44 AM
SENATOR GUESS said the local level process can be much more
difficult that the legislative process and expressed a
preference for local governmental control.
SENATOR THERRIAULT agreed with Senator Guess.
CHAIR SEEKINS said that XA.21 would allow municipalities to
exercise powers of eminent domain with a majority vote. He said
feedback from his constituents would prefer that the Legislature
maintain control over eminent domain concerning trails and roads
for recreational use within the 250 foot limit. He asked for
discussion.
8:59:28 AM
SENATOR FRENCH expressed an interest in hearing public testimony
because the City of New London versus Kelo case took private
property for economic development, not for recreational access.
The taking of private property for economic development is the
prime aspect behind the bill and so it surprised him that people
in Alaska are more concerned over the recreational aspect of the
bill since that has never been an issue in Alaska.
CHAIR SEEKINS agreed but asserted that was the concern from the
people in his district.
SENATOR GUESS expressed concern about people not having access
to hunting or other things that could be deemed as "recreation"
and that people could bring about suits since "recreation" is
not defined in statute. She remained comfortable with the local
option because the Legislature does not work year round and
because of a lack of definition of recreation. Local governments
work all year round and so they would be better able to control
the eminent domain issues as they come about.
9:02:11 AM
SENATOR HUGGINS said he assumed the committee was working on
that definition. He said in his case, most of the people are
concerned with the recreational aspect, not that a Wal-Mart was
being built next to somebody's cabin.
SENATOR FRENCH suggested that procedurally the committee should
divide the proposed amendment. He made a motion to divide the
amendment. Hearing no objection, the motion carried. He moved
Amendment 10A.
24-LS1083\XA.21
Bullock
A M E N D M E N T 10A
OFFERED IN THE SENATE
TO: CSHB 318(FIN) am
Page 4, line 8:
Delete ";"
Insert "."
Page 4, line 9:
Delete all material.
Page 4, following line 15:
Insert new subsections to read:
"(f) Notwithstanding the limitations on the power of
eminent domain in (d) and (e) of this section, the
legislature may approve the exercise of eminent domain by
law.
(g) The power of eminent domain may only be delegated
by statute."
SENATOR GUESS noted that the committee previously deleted the
Legislative approval of transfer.
MR. PUTZIER said:
As it was put in the original draft, the "legislative
out" applied to private-to-private transfers but would
not apply to recreational transfers in subsection (e).
The new subsection (f) would allow the Legislature on
a case-by-case basis allow the exercise of eminent
domain for private-to-private or for recreational. As
it was originally drafted and left in (d)(7), it would
only apply to private-to-private and would essentially
be an outright bar under any circumstances for eminent
domain used in the context of a recreational take.
9:07:21 AM
SENATOR GUESS said as she looks back on the past amendments, the
committee has now deleted page 4, line 9 twice.
SENATOR FRENCH said to clarify, he meant for Amendment 10A to
supersede Amendment 6.
CHAIR SEEKINS reiterated that the local control amendment would
th
apply only to the 24 Legislature.
MR. PUTZIER agreed. He said the DOL feels more comfortable using
the original language in the bill but said that Amendment 6
would only bind the current Legislature.
CHAIR SEEKINS said the most binding effect would be in the
Uniform Rules and they are subject to change by the body. The
problem is that the Uniform Rules trump the statute.
9:12:42 AM
SENATOR FRENCH said, as the Senator who moved Amendment 10A, he
is more comfortable with Amendment 6, as it is more potent from
a citizen's perspective.
CHAIR SEEKINS said he agreed with the concept but the problem is
that the next committee would probably extract it.
SENATOR FRENCH objected to Amendment 10A.
Roll call proved Amendment 10A failed with all Senators voting
no.
CHAIR SEEKINS called a brief at ease at 9:15:16 AM.
9:17:44 AM
CHAIR SEEKINS moved to rescind Amendment 5. Hearing no
objections, the motion carried. Chair Seekins moved Amendment
10B. Insert a new subsection (f) to say, "The power of eminent
domain may only be delegated by statute." Hearing no objections,
Amendment 10B was adopted.
CHAIR SEEKINS moved to rescind Amendment 4.
SENATOR FRENCH objected.
SENATOR THERRIAULT asked the reason for rescinding Amendment 4.
CHAIR SEEKINS said:
This allows a municipality to have override power on
private-to-private for economic reasons but does not
allow municipal override on the 250-foot rule, as I
understand it.
SENATOR GUESS said, "On anything recreational."
SENATOR FRENCH said, "Point of order, it doesn't have to take
the home, it just has to take it within the buffer area within
the 250 feet from the home."
Roll call proved Amendment 4 was rescinded on a 3-2 vote with
Senators Guess and French voting no and Senator Therriault,
Huggins, and Chair Seekins voting yes.
9:21:47 AM
SENATOR THERRIAULT moved Amendment 10C.
Page 6, line 19, following "AS 09.55.240(e).":
Insert "However, a municipality may exercise the power of
eminent domain to acquire private property from a private person
for the purpose of transferring title to the property to another
private person for economic development if
(1) the municipality does not delegate the power
of eminent domain to another person;
(2) before issuing the notice in (3) of this
subsection, the municipality makes a good faith effort to
negotiate the purchase of the property;
(3) written notice is provided at least 90 days
before the public hearing to each owner of land that may be
affected by the exercise of eminent domain;
(4) the municipality holds a public hearing on
the exercise of eminent domain after adequate public
notice;
(5) the governing body of the municipality
approves the exercise of eminent domain by a two-thirds
majority vote; and
(6) in the case of a second class city, the
governing body of the city adopts an ordinance by a two-
thirds majority vote, the ordinance is submitted to the
voters for approval at the next general election or at a
special election called for that purpose, and the exercise
of eminent domain is approved by a majority of the votes on
the question."
Amendment 10C was adopted unanimously.
9:23:47 AM
CHAIR SEEKINS returned to 24-LS1083\XA.16 and said it would
allow for a personal residence to be owned by a subchapter S or
an LLC or a partnership. It would give a broader interpretation
to the ownership.
9:26:23 AM
SENATOR GUESS asked the purpose of the amendment.
SENATOR FRENCH commented that there was no reason for the
amendment.
CHAIR SEEKINS agreed and closed public testimony. He asked for
the will of the committee.
SENATOR FRENCH asked for a clean CS before moving the bill out.
CHAIR SEEKINS agreed and held the bill in committee.
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