Legislature(2003 - 2004)

04/01/2004 01:35 PM Senate TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
        SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES                                                                    
                                                                                                                                
CO-CHAIR WAGONER announced SB 382 to be up for consideration.                                                                   
                                                                                                                                
2:15 - 2:17 - at ease                                                                                                           
                                                                                                                                
CO-CHAIR COWDERY  moved to adopt  the CS  to SB 382,  version /D.                                                               
There were no objections and it was so ordered.                                                                                 
                                                                                                                                
MR.  JEFF  OTTESEN,  Department   of  Transportation  and  Public                                                               
Facilities  (DOTPF), said  that two  lawsuits have  erupted using                                                               
the  same legal  argument,  both regarding  bonded projects  that                                                               
voters approved two years ago. If  the lawsuits are upheld by the                                                               
courts, it has the potential to  shut down and delay projects all                                                               
across the state.                                                                                                               
                                                                                                                                
     The issue before you is a  statute that has been on the                                                                    
     books  for a  long time  - since  '75. It's  never been                                                                    
     litigated before  until now. AS 09.55.275  requires the                                                                    
     platting authority, which is  basically borough or city                                                                    
     governments, to  require the  state, on  a condemnation                                                                    
     related lawsuit, to go through  that plat as if it were                                                                    
     a  private landowner.  Inherently,  a replat  involving                                                                    
     condemnation  is going  to be  different than  a replat                                                                    
     that's   done  voluntarily...   By  it's   very  nature                                                                    
     condemnation is not a voluntary  act. You can't get the                                                                    
     landowners to  put a signature  on the  application for                                                                    
     replat. They are  simply not ready to  do that; they're                                                                    
     in no  mood to do that.  The argument being held  up in                                                                    
     the courts  is that we  have to go through  exactly the                                                                    
     same procedure as a voluntary subdivision.                                                                                 
                                                                                                                                
     To give you  some idea of the magnitude  of the problem                                                                    
     - the project at Kenai  River, Soldotna, that is slated                                                                    
     to  go  to  construction  this   summer  -  is  now  in                                                                    
     litigation. We think  it will be held up.  The C Street                                                                    
     extension in Anchorage  would also be held  up; it's in                                                                    
     litigation.  The North  Pole interchange  in Fairbanks,                                                                    
     our  right-of-way  staff believe  is  at  risk. Even  a                                                                    
     project in Bethel - about  a year ago the city attorney                                                                    
     saw this conflict and had  the Bethel City Counsel pass                                                                    
     an ordinance  that exempted that  particular project...                                                                    
     so this can be a rural problem as well.                                                                                    
                                                                                                                                
SENATOR LINCOLN asked how the CS is different from the original                                                                 
bill and how does it prevent further litigation.                                                                                
                                                                                                                                
CO-CHAIR COWDERY explained the original bill was just a                                                                         
beginning and that further DOT research provided the update.                                                                    
                                                                                                                                
MR. OTTESEN said the intent of the earlier draft has not                                                                        
changed, but the language is better.                                                                                            
                                                                                                                                
MR. PETER PUTZIER, Department of Law (DOL), said that most of                                                                   
the changes were in style and he reviewed those.                                                                                
                                                                                                                                
     In a  real nutshell, AS  09.55.275 has a  sentence that                                                                    
     says  that  the  platting   authority  typically  in  a                                                                    
     municipality  shall apply  the  standards  in the  same                                                                    
     manner  between  DOTPF   and  private  landowners.  The                                                                    
     conflict or  the problem is  what "in the  same manner"                                                                    
     means.  The  argument  is  being  made  in  court  that                                                                    
     essentially in '75 there's a  legislative intent to put                                                                    
     what I would describe  as a legislative straight jacket                                                                    
     on    municipalities    to   require    a    particular                                                                    
     procedure....  For   instance  someone  who   wants  to                                                                    
     subdivide  property and  a  right-of-way acquisition  -                                                                    
     the  two proceedings  as Mr.  Ottesen pointed  out -  a                                                                    
     right-of-way  acquisition is  quite a  different animal                                                                    
     than  what  goes  on  with   respect  to  your  typical                                                                    
     subdivision....                                                                                                            
                                                                                                                                
SENATOR THERRIAULT asked if the 1975 language actually said                                                                     
there would be one uniform standard.                                                                                            
                                                                                                                                
     If   we   fix   this   problem  for   DOTPF,   do   the                                                                    
     municipalities still have a problem  that they've got a                                                                    
     variety of standards...  or are we fixing  it for DOTPF                                                                    
     and the municipalities at the same time?                                                                                   
                                                                                                                                
MR.  PUTZIER  explained   that  the  fix  intends   to  say  that                                                               
municipalities  can  apply  a  variety   of  standards  in  their                                                               
discretion  to how  they want  to treat  the requests  for replat                                                               
approval. The legislature is not  demanding a particular process,                                                               
but is giving  local governments discretion to deal with  it in a                                                               
variety of ways.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT  asked if  the state  and a  private landowner                                                               
have to go  through the same process to subdivide  and sell under                                                               
this bill.                                                                                                                      
                                                                                                                                
MR. PUTZIER  said that would  be a different analysis.  Section 3                                                               
only applies this bill to right-of-way acquisitions only.                                                                       
                                                                                                                                
TAPE 04-14, SIDE B                                                                                                            
                                                                                                                              
CO-CHAIR WAGONER  asked if these  projects had been on  the books                                                               
for 10 years or more and if someone is trying to obstruct them.                                                                 
                                                                                                                                
MR.  PUTZIER replied  with an  explanation of  the process.  When                                                               
DOTPF  is  unable to  come  to  an  agreement with  a  particular                                                               
landowner,  the  project will  file  a  condemnation action.  The                                                               
landowner then has  the right to file an  authority and necessity                                                               
challenge,  which says  the DOT  didn't follow  the steps  it was                                                               
supposed to and, therefore, can't take the property.                                                                            
                                                                                                                                
SENATOR LINCOLN  asked if this legislation  is retroactive, would                                                               
that help communities go forward with their projects.                                                                           
                                                                                                                                
MR. PETZIER  replied that both  cases are in Superior  Court now.                                                               
One has an  oral argument scheduled for next week  and a decision                                                               
could  come  out  at any  time;  the  other  one  has yet  to  be                                                               
scheduled   for   briefing   and   argument.   This   legislative                                                               
clarification  would  be presented  to  the  court as  additional                                                               
evidence as  to what legislative  intent was. "Our hopes  is that                                                               
both of the lawsuits would be defused...."                                                                                      
                                                                                                                                
SENATOR OLSON asked  if this bill passes, how will  the public be                                                               
protected from the  government acting as a bully to  go ahead and                                                               
take property  that may have  been in  a family for  centuries or                                                               
property that most people would want to stay were it is.                                                                        
                                                                                                                                
MR. PUTZIER  answered that the  eminent domain process  has stood                                                               
on its own  for years. It has a myriad  of restrictions and hoops                                                               
that DOTPF  always has to  jump through  - a design  process with                                                               
public notice  and an environmental  process with  public notice.                                                               
The  municipal role  is to  have input.  "This isn't  in any  way                                                               
diminishing existing  eminent domain  rights that are  already on                                                               
the books and followed by DOTPF."                                                                                               
                                                                                                                                
SENATOR OLSON  wanted to make  sure that a public  individual who                                                               
has to  hire an  attorney to represent  him is  protected against                                                               
eminent  domain proceedings  that may  being used  unduly against                                                               
him.                                                                                                                            
                                                                                                                                
MR.  OTTESEN reiterated  that  eminent domain  is  a very  heavy-                                                               
handed power of government. Consequently,  both state and federal                                                               
law  heavily regulate  the application  of that  power. He  spoke                                                               
with the  right-of-way chief  in the northern  region who  was in                                                               
the department  when this was  passed in  1975 who said  that DOT                                                               
was being  heavy handed  with its  replats at  that time.  It was                                                               
taking  property;  it  wasn't filing  the  paperwork  with  local                                                               
governments or replacing monuments  and property stakes that were                                                               
officially installed  by registered land surveyors.  The analysis                                                               
was a reaction to the wrongs  of the department 30 years ago. "We                                                               
don't want to do away with those protections...."                                                                               
                                                                                                                                
SENATOR  OLSON  said  his  last   concern  is  if  there  is  any                                                               
resistance from the municipalities on the proposed legislation.                                                                 
                                                                                                                                
MR. OTTESEN  replied that this  legislation literally  started 10                                                               
days ago and this is its first public hearing.                                                                                  
                                                                                                                                
CO-CHAIR COWDERY moved to pass  CSSB 382(TRA) from committee with                                                               
individual  recommendations  and  accompanying  fiscal  note  and                                                               
asked for unanimous consent. There  were no objections and it was                                                               
so ordered.                                                                                                                     

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