Legislature(2007 - 2008)BELTZ 211
04/03/2008 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB228 | |
| HJR32 | |
| HB193 | |
| HJR19 | |
| HJR38 | |
| HB252 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 19 | TELECONFERENCED | |
| + | HB 193 | TELECONFERENCED | |
| + | HJR 32 | TELECONFERENCED | |
| + | HJR 38 | TELECONFERENCED | |
| + | HB 252 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 228 | ||
SB 228-MUNICIPAL LAND USE REGULATION
9:08:23 AM
CHAIR LESIL MCGUIRE announced SB 228 to be up for consideration.
SENATOR FRED DYSON, sponsor of SB 228, said this measure
protects real property. Many people live in communities that are
increasingly urbanized and land zoning and regulations follow.
Cities invariably come up with new land-use designations, and
they can end up trampling on property owners' rights. Under SB
228, if residents move in around a property owner and change the
law, whatever was permitted before can be continued unless it is
a nuisance.
He spoke to people about the definition of nuisance. "The term
of art in law, which I think you'll see here, nuisance, as
recognized under common law is all the protection we need." An
expert would explain that "your property rights never extend to
[you] being a nuisance to your neighbors." The neighborhood is
protected under common law nuisance laws. He provided quotes
about the importance of preserving property rights saying:
And this bill particularly carves out senior citizens
and the disabled to say that if planners move in
around them with new regulations they have at least
ten years before they have to come into conformity.
Uses allowed before will continue until the land transfers. In
his community neighbors have built subdivisions where a person
can't park a truck with a logo on the door or leave snow
machines in the yard. "You can't even put a sign, including a
campaign sign, in your yard, which I think has, maybe, some
first amendment rights problems."
9:12:36 AM
CHAIR MCGUIRE said there is a whole body of common law in this
area. She asked what situation sparked this need to deviate from
that recognized common law, and if it was a constituent.
SENATOR DYSON replied that it involves several of them. Home
businesses are grandfathered in, but they are only allowed at
the present level of intensity. Many businesses need to change
and grow, so the bill will allow a business to continue unless
it is a nuisance or the land transfers. He has people that have
a Conex container for storing their animal feed, "and as soon as
the city finishes its land use regulations, Conexes will be
gone. They'll be gone like Quonset huts are." SB 228 will allow
these storage units to remain, and it will allow them to be put
up after the regulation changes. A citizen may have planned on
doing that before regulations changed, "and the huge lifestyle
thing that was the basis of their buying that land - in that
area it's often horses - and that would be precluded by a new
regulation that wasn't in place when you bought the property."
9:15:17 AM
CHAIR MCGUIRE said there could be additional market value to a
property with a bill like this. Some people in her district want
to park RVs and boats and want to have more than two pets, but
they can't. It's interesting.
SENATOR DYSON said that view is a purist one, because he has
said that previous property rights don't transfer with a land
transfer. The new owner will be subject to the new regulations.
SENATOR FRENCH said if a person owns property and the city
prohibits Conexes, she or he can still put one on the property.
"It's the transfer that triggers the new rule."
9:17:22 AM
BERNARDO HERNANDEZ, Director, Community Planning Department,
Fairbanks North Star Borough (FNSB), spoke in opposition to SB
228. He understands the sponsor's desire to weigh public health
and safety and individual property rights. "We're always
somewhere in between these two opposites." Planning and zoning
is an intensely local effort. Each community has different
visions and goals. Land use and sentiments are dynamic. The FNSB
has home occupation and grandfather rights ordinances, and it
has had zoning since 1949, "and we seem to be doing pretty well
at it." Since land use is so local, the community, through the
public process, should make its decisions. The public process is
a big deal in the FNSB. All of the ordinances are very well
scrutinized because there is always someone who is affected.
Everybody would agree that a school needs doors to escape and
sprinkler systems. All these public sentiments and the
individual rights are important. "We're weighing that
constantly." This should be left to the local public. SB 228
steps outside of that. It is the state trying to impact the
local zoning. In FNSB a person can have grandfather rights up to
50 years, as long as the use isn't discontinued for 12 months.
9:20:39 AM
SENATOR STEVENS asked if there is anything in this bill that
can't already be done.
MR. HERNANDEZ said in Fairbanks it doesn't matter who the person
is; decisions are made solely on land use. "We want to stay away
from who or what a person is." The FNSB can do any of these
things that are in the bill. "Our ordinance works just fine."
EILEEN PROBASCO, Planning Chief, Matanuska-Susitna Borough, said
she agrees with Mr. Hernandez and opposes SB 228. There is an
existing non-conforming use section in the Mat-Su Valley code
that allows a use to continue indefinitely, not just ten years.
"We have a concern about the authority of this being governed by
the state as opposed to the local government because in many
cases it is more effective and easily changed on a local level."
There is a lot of participation when code amendments come
forward. This bill is contrary to a long-standing public policy,
which is articulated by an Alaska Supreme Court decision in
2002. The determination was that non-conforming uses are to be
restricted and terminated as quickly as possible because those
uses frustrate a local government's implementation of consistent
and logical land-use planning. The bill is redundant because of
the local nonconforming statutes. Local control was transferred
to the local entities from the state.
9:24:50 AM
SENATOR FRENCH asked the name of the Supreme Court case.
MS. PROBASCO said Cizek v. Concerned Citizens of Eagle River
Valley.
9:25:45 AM
LAUREN KRUER, Planner, Matanuska-Susitna Borough, said applying
SB 228 will create complications. Variances are used at the
local level, and that is the other half of grandfathering. The
variance is for the loophole circumstances. There is nothing
like that at the state level. How would the state deal with it?
It is better handled at the local level. As a planner, land-use
is about use, and it is a tool to create healthy, growing
communities. A background like a veteran or senior is a slippery
slope. Special interest groups have advocates for laws dealing
with safety and equality, "but to put something like that in a
land use, you take what kind of keeps land use on an even keel
where we deal about the use of the building and not so much
about the background of the individual owner." There could then
be rules for single mothers or ethnic groups. "Where does it
stop?" Planning is about use, not about the person.
9:28:17 AM
LARRY ALBERT, Attorney, Anchorage, said Senator Dyson asked him
to testify; he had no prior familiarity with SB 228 or the
issues associated with it. But he has a background in land use,
private property, and related constitutional issues. He
recollects that the Cizek case was a dispute over a landing
strip that was platted as part of a subdivision, but the
legality of the use of it was questioned. The issue of how SB
228 relates to non-conforming use in local land use ordinances
can be dealt with in two different ways. There may be present
uses and ownership of a property under rules enacted today, but
tomorrow the local government may enact new regulations. The
question is how the existing uses should be protected - if at
all. The purpose of this bill is to protect existing uses of
land. He agrees with the witnesses of looking at individual
issues and properties. A non-conforming use or variance
provision generally requires a permitting process, but SB 228
would be an automatic protection. In the absence of SB 228, if
land-use regulations change, an affected property owner would
have to apply and be subjected to the terms allowed.
9:32:42 AM
SENATOR DYSON asked him to explain "the protections that are
against public nuisance that are inherent in this bill, and what
the language about common law is, and what remedies neighbors
and communities would have against a continuing use of land that
was arguably a nuisance to the neighbor or community."
MR. ALBERT said a nuisance recognized under common law has a
well-established meaning. The restatement of torts by the
American law institute, which periodically publishes reference
treatises that restates the common law -- law made by torts
instead of by legislatures. It has a restatement of the law of
torts, and the most recent edition is 1977. Included is a
chapter on private and public nuisance, and anyone can look at
the restatement and see a compilation of authorities, rules and
court decisions on what constitutes a nuisance and what
balancing factors a court will consider in decreeing the
presence or absence of a nuisance. There is published precedence
on nuisance in Alaska. The terms are well-established in law.
The term common law nuisance also has a well-established meaning
in takings litigation. In the late 19th century the United
States Supreme Court has recognized that property rights do not
protect nuisances under the Fifth Amendment, and that principle
has been continuous. In 1992 a case called Lucas v. South
Carolina Coastal Council discussed common law nuisance as not a
protected property right.
9:36:10 AM
SENATOR DYSON said loud aircraft at the air strip was scaring
and waking up neighbors. He asked how the neighbors could have
prohibited that nuisance if SB 228 had been in place.
MR. ALBERT said he is not familiar with the facts, but under SB
228, his reading is that the neighbors could go to court. There
is a private and public nuisance as part of common law. Private
persons can bring an action against a nuisance as to their
private interests and property. For a public nuisance, private
parties and local governments have standing to bring an action
declaring an activity to be a public nuisance. If the aircraft
activity were dangerous, that gets pretty close to being a
nuisance. He suspects that there are preemption issues with the
Federal Aviation Administration's authority on location and
operation of an airstrip.
9:39:05 AM
SENATOR DYSON said a witness talked about the appropriateness of
leaving all land-use decisions at the local level, and he is
sympathetic to that. But the reason for SB 228 "is that for our
founding fathers the protection of private property rights was a
huge issue." He quoted [James] Madison: "Government is an
institute to protect property; this being the end of government.
That alone is a just government, which impartially secures to
every man that which is his own. It is not a just government nor
is property secure under it where arbitrary restrictions,
exemptions, and monopolies deny to part of the citizens the free
use of their own land facilities." The protection of private
property is a huge issue. Americans are committed to life,
liberty, and happiness, but the original wording of that list
included private property. It is appropriate for the state to
say that the protection of private property trumps local
planning and zoning "as long as that property is owned that
person there, and that the zoning restrictions can only be
applied on the transfer of the land." The folks who homesteaded
can do what they have been doing and the government should
protect them against well-meaning incursions.
9:41:15 AM
MR. ALBERT said he has effectively stated the constitutional
principle that is derived from James Madison. The issue is the
role of the state versus local government in protecting private
property rights. Governments have the responsibility to protect
the public health, safety and welfare. At the same time, their
welfare is in their private property among other attributes. It
is appropriate for Alaska to declare that one element of the
general welfare is protecting existing uses of land against
prospective changes in regulation resulting in the diminution of
land value. The role of local governments to be sensitive to
their constituents remains, albeit subject to this protection of
existing uses. Local governments could try to fashion their
provisions on nonconforming use to be consistent with SB 228.
9:43:09 AM
CHAIR MCGUIRE set SB 228 aside. There is significant local
concern, but she likes the principle.
| Document Name | Date/Time | Subjects |
|---|