Legislature(1995 - 1996)

03/25/1995 01:06 PM House CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              HOUSE COMMUNITY AND REGIONAL AFFAIRS                             
                       STANDING COMMITTEE                                      
                         March 25, 1995                                        
                           1:06 p.m.                                           
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Ivan, Co-Chair                                                 
 Representative Alan Austerman, Co-Chair                                       
 Representative Kim Elton                                                      
 Representative Al Vezey                                                       
 Representative Pete Kott                                                      
 Representative Irene Nicholia                                                 
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Jerry Mackie                                                   
                                                                               
 OTHER LEGISLATORS PRESENT                                                     
                                                                               
 Representative Norman Rokeberg                                                
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HB 154:    "An Act requiring the Department of Law to provide                 
            guidelines regarding unconstitutional state and                    
            municipal takings of private real property; relating               
            to the taxation of private real property taken                     
            unconstitutionally by state or municipal action;                   
            establishing a time limit for bringing an action for               
            an unconstitutional state or municipal taking of private           
            real property; and providing for an effective date."               
                                                                               
            HEARD AND HELD                                                     
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 REPRESENTATIVE VIC KOHRING                                                    
 Alaska State Legislature                                                      
 State Capitol Building, Room 428                                              
 Juneau, AK 99801                                                              
 Telephone:  (907) 465-2186                                                    
 POSITION STATEMENT:  Introduced HB 154                                        
                                                                               
 CRAIG LYON, Legislative Aide                                                  
   to Representative Vic Kohring                                               
 Alaska State Legislature                                                      
 State Capitol Building, Room 428                                              
 Juneau, AK 99801                                                              
 Telephone:  (907) 465-2186                                                    
 POSITION STATEMENT:  Answered questions regarding HB 154                      
                                                                               
 JIM MCALLISTER, Regional Forester                                             
 Division of Forestry                                                          
 Department of Natural Resources                                               
 400 Willoughby Ave., 3rd floor                                                
 Juneau, AK 99801-1796                                                         
 Telephone:  (907) 465-5401                                                    
 POSITION STATEMENT:  Explained buffer zones as they pertained to              
                      HB 154                                                   
                                                                               
 LARS EHRLANDER                                                                
 P.O. Box 8420                                                                 
 Fairbanks, AK 99708                                                           
 Telephone:  (907) 451-8342                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 MICK MANNS                                                                    
 Paradise Valley                                                               
 Bettles, AK 99726                                                             
 Telephone:  (907) 479-5704                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 WILLIAM SAMPLES, Project Manager                                              
 Federal Government                                                            
 315 Cope St.                                                                  
 Kodiak, AK 99615                                                              
 Telephone:  (907) 486-2906                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 PAT CARLSON, Assessor                                                         
 Kodiak Island Borough                                                         
 710 Mill Bay Road                                                             
 Kodiak, AK 99615                                                              
 Telephone:  (907) 486-9350                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 STEVE VAN SANT, State Assessor                                                
 Department of Community and Regional Affairs                                  
 333 W. 4th Ave., Suite 319                                                    
 Anchorage, AK 99501                                                           
 Telephone:  (907) 269-4500                                                    
 POSITION STATEMENT:  Answered questions regarding HB 154                      
                                                                               
 ELIZABETH HOLT                                                                
 HC01, Box 6472                                                                
 Palmer, AK 99645                                                              
 Telephone:  (907) 745-5577                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 LUCILLE FREY                                                                  
 HC02, Box 7342                                                                
 Palmer, AK 99645                                                              
 Telephone:  (907) 745-5577                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 RAY BRIGGS                                                                    
 P.O. Box 3569                                                                 
 Palmer, AK 99645                                                              
 Telephone:  (907) 745-5654                                                    
 POSITION STATEMENT:  Provided Comments                                        
                                                                               
 WESLEY E. NEWCOMB                                                             
 P.O. Box 1001                                                                 
 Sterling, AK 99672                                                            
 Telephone:  (907) 262-3135                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 PEGGY MULLEN                                                                  
 355 Lingonberry                                                               
 Soldotna, AK 99669                                                            
 Telephone:  (907) 262-9225                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 STEPHEN CONN, Executive Director                                              
 Alaska Public Interest Research                                               
 P.O. Box 101093                                                               
 Anchorage, AK 99501                                                           
 Telephone:  (907) 278-3661                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 TOM PITMAN, Municipal Assessor                                                
 Municipality of Anchorage                                                     
 632 West 6th Avenue                                                           
 Anchorage, AK 99519                                                           
 Telephone:  (907) 343-6697                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 TONY TURRINI, Counsel                                                         
 Native Wildlife Federation                                                    
 750 West 2nd Avenue                                                           
 Anchorage, AK 99515                                                           
 Telephone:  (907) 258-4800                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 JOHN ISAACS                                                                   
 Alaska Chapter of the American Planning Association                           
 308 G Street #315                                                             
 Anchorage, AK 99517                                                           
 Telephone:  (907) 274-9719                                                    
 POSITION STATEMENT:  Commented on HB 154                                      
                                                                               
 BILL CUMMINGS, Assistant Attorney General                                     
 Transportation Section                                                        
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 Telephone:  (907) 465-3603                                                    
 POSITION STATEMENT:  Testified on HB 154                                      
                                                                               
 GERON BRUCE, Legislative Liaison                                              
 Office of the Commissioner                                                    
 Alaska Department of Fish and Game                                            
 P.O. Box 25526                                                                
 Juneau, AK 99802-5526                                                         
 Telephone:  (907) 465-6143                                                    
 POSITION STATEMENT:  Testified on HB 154                                      
                                                                               
 STEVE NOEY, Real Estate Broker                                                
 P.O. Box 110018                                                               
 Anchorage, AK 99511                                                           
 Telephone:  (907) 346-2208                                                    
 POSITION STATEMENT:  Testified in support of HB 154                           
                                                                               
 LISA BLACHER, Lobbyist                                                        
 Alaska Environmental Lobby, Inc.                                              
 P.O. Box 22151                                                                
 Juneau, AK 99802                                                              
 Telephone:  (907) 463-3366                                                    
 POSITION STATEMENT:  Testified against HB 154                                 
                                                                               
 PAM NEAL, Executive Director                                                  
 Alaska State Chamber of Commerce                                              
 217 Seward Street, No. 201                                                    
 Juneau, AK 99801                                                              
 Telephone:  (907) 586-2323                                                    
 POSITION STATEMENT:  Testified on HB 154                                      
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 154                                                               
 SHORT TITLE: REGULATORY TAKING OF PRIVATE PROPERTY                            
 SPONSOR(S): REPRESENTATIVE(S) KOHRING,Rokeberg,Kott                           
                                                                               
 JRN-DATE     JRN-PG               ACTION                                      
 02/03/95       237    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/03/95       237    (H)   CRA, JUD, FIN                                     
 02/16/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 02/21/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 02/21/95              (H)   MINUTE(CRA)                                       
 03/01/95       550    (H)   COSPONSOR(S): ROKEBERG                            
 03/09/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 03/09/95              (H)   MINUTE(CRA)                                       
 03/16/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
 03/24/95       919    (H)   COSPONSOR(S): KOTT                                
 03/25/95              (H)   CRA AT 01:00 PM CAPITOL 124                       
                                                                               
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 95-11, SIDE A                                                            
 Number 000                                                                    
                                                                               
 CO-CHAIR IVAN called the House Community and Regional Affairs                 
 Committee to order at 1:06 p.m.  He noted the members present at              
 the call to order were Representatives Kim Elton, Alan Austerman,             
 Al Vezey and Pete Kott.  Members absent were Representatives Jerry            
 Mackie and Irene Nicholia.  The agenda called for general                     
 discussion on HB 154.  He said witnesses were waiting on line to              
 testify from Anchorage, Mat-Su, Kodiak, Kenai and Soldotna.  He             
 invited Representative Vic Kohring to introduce HB 154.                       
                                                                               
 HB 154 - REGULATORY TAKING OF PRIVATE PROPERTY                              
                                                                               
 Number 023                                                                    
                                                                               
 REPRESENTATIVE VIC KOHRING, Sponsor, said his bill impacted the               
 effectiveness of regulations regarding private property and                   
 regulations that restrict the individual's use of private property.           
 The bill states just compensation for the individual in the event             
 of a regulatory taking.  He addressed committee concerns from the             
 prior two hearings on HB 154.  The first concern questioned the               
 anticipated increase in litigation if HB 154 became law.                      
 Representative Kohring stated this would not happen, as he talked             
 with the Deputy Director of the National Association of Attorney              
 Generals who said they had no knowledge of increased litigation               
 resulting from other states passing similar legislation.  The                 
 second concern was whether it was considered an unfunded mandate if           
 the state were to impose a restriction and make a municipality pay            
 the property owner in a regulatory taking.  Representative Kohring            
 said there wouldn't be an unfunded mandate because the state agency           
 would be required to reimburse any municipality that compensated a            
 property owner in a takings claim.                                            
                                                                               
 Number 076                                                                    
                                                                               
 CO-CHAIR IVAN recognized the attendance of Representative Irene               
 Nicholia.  He asked if committee members had any questions or                 
 comments.                                                                     
                                                                               
 Number 082                                                                    
                                                                               
 REPRESENTATIVE PETE KOTT asked if the state agency didn't have the            
 funds to compensate a municipality, would it require a legislative            
 appropriation.  He stated there was a provision in HB 154 saying              
 payment must be rendered in three months.                                     
                                                                               
 Number 102                                                                    
                                                                               
 REPRESENTATIVE KOHRING said he wasn't aware of a state agency                 
 running out of available funds in terms of their operating budget             
 proceeds.                                                                     
                                                                               
 Number 112                                                                    
                                                                               
 REPRESENTATIVE KOTT asked what kind of effect it would have on an             
 agency if it had to render payment within three months but had no             
 money with which to compensate parties.  He stated this scenario              
 would require a legislative appropriation.                                    
                                                                               
 Number 121                                                                    
                                                                               
 REPRESENTATIVE KOHRING agreed the appropriation would have to be              
 the solution which would have negative effects on the operation of            
 the state agency.                                                             
                                                                               
 Number 129                                                                    
                                                                               
 REPRESENTATIVE KOTT asked if HB 154 shouldn't address a provision             
 that would cover the agency in the event a payment was due during             
 the interim and funds weren't available.                                      
                                                                               
 Number 137                                                                    
                                                                               
 REPRESENTATIVE AL VEZEY interpreted it to say if the agency                   
 couldn't pay the debt within the required time, it accrued interest           
 according to state law.                                                       
                                                                               
 Number 148                                                                    
                                                                               
 REPRESENTATIVE KOHRING stated he wouldn't object to extending the             
 amount of time required to pay back the debt.                                 
                                                                               
 Number 159                                                                    
                                                                               
 CRAIG LYON, Legislative Aide to Representative Vic Kohring, said a            
 state agency could do one of two things:  They could pay the                  
 compensation or they could refuse to take the action and pay.  He             
 stated HB 154's intent was to act as a deterrent.                             
                                                                               
 Number 170                                                                    
                                                                               
 REPRESENTATIVE VEZEY said an obligation was incurred by the state             
 agency and with not following through with payment of debt, the               
 owed party suffered a loss of property.  Routinely, this situation            
 would be kept in check by the paying of interest.  He mentioned               
 several different operations, both on a state and private level,              
 where debts are incurred and a debtor paid interest on overdue                
 debts.                                                                        
                                                                               
 Number 184                                                                    
                                                                               
 REPRESENTATIVE KOHRING said there was a provision in the bill                 
 regarding interest in the event there was an outstanding debt.                
 Interest would accrue at 3.5 percent.                                         
                                                                               
 Number 188                                                                    
                                                                               
 REPRESENTATIVE KOTT interpreted it to mean 3.5 percent would be               
 accrued during the three month limit to pay the owed party.  He               
 wanted to know why the London Interbank offering rate was used                
 instead of the Prime Rate.                                                    
                                                                               
 Number 201                                                                    
                                                                               
 MR. LYON responded the London Interbank rate was used because it              
 was more stable than the Prime Rate.                                          
                                                                               
 Number 208                                                                    
                                                                               
 REPRESENTATIVE KOTT said he understood the London Interbank                   
 offering rate was higher with an escalated interest rate.                     
                                                                               
 Number 213                                                                    
                                                                               
 MR. LYON stated it would be up to the committee to decide which               
 rate to use.                                                                  
                                                                               
 Number 219                                                                    
                                                                               
 REPRESENTATIVE KIM ELTON wanted to know, if a shop was closed down            
 and qualified as taking, whether the municipality taxpayers or                
 municipality was required to reimburse the property owner.                    
                                                                               
 Number 231                                                                    
                                                                               
 MR. LYON stated if an individual had purchased property and opened            
 a business before a zoning came into effect, according to the terms           
 listed in HB 154, the private property owner would have to be                 
 compensated in the event his business was closed.                             
                                                                               
 Number 241                                                                    
                                                                               
 REPRESENTATIVE ELTON asked if a liquor establishment, in a village            
 that has chosen to go dry, would qualify under the takings                    
 provisions of HB 154.                                                         
                                                                               
 Number 246                                                                    
                                                                               
 MR. LYON stated he would assume it would, as would any legitimate             
 business that has part of their economic viability or use taken               
 away by government action.                                                    
                                                                               
 Number 251                                                                    
                                                                               
 CO-CHAIR IVAN asked if there were questions or comments from the              
 committee.                                                                    
                                                                               
 Number 254                                                                    
                                                                               
 REPRESENTATIVE IRENE NICHOLIA wondered why there wasn't a fiscal              
 note from the Department of Law (DOL) and the Department of                   
 Transportation and Public Facilities (DOTPF).                                 
                                                                               
 Number 262                                                                    
                                                                               
 MR. LYON stated there should be a fiscal note from the DOL with a             
 lengthy analysis of the proposed cost to the department equaling              
 three months of attorney time.                                                
                                                                               
 Number 268                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked if the department didn't submit an              
 estimated cost in the actual dollar amount.                                   
                                                                               
 Number 270                                                                    
                                                                               
 MR. LYON confirmed this and stated they had estimated three months            
 of attorney time to draw up the regulations.  He noted members had            
 copies of Idaho and Washington State guidelines regarding                     
 regulatory takings which would be similar to what HB 154 suggests.            
                                                                               
 Number 279                                                                    
                                                                               
 REPRESENTATIVE KOHRING said that by implementing the bill in July             
 1995 and requesting the guidelines to be ready by January 1996,               
 gives the DOL six months to formulate the guidelines.  If a taking            
 should occur during these six months, it wouldn't actually be                 
 addressed until July 1996.                                                    
                                                                               
 Number 291                                                                    
                                                                               
 REPRESENTATIVE KOTT corrected the comments regarding attorney time            
 in that it stated two months not three with the initial                       
 compilation.                                                                  
                                                                               
 Number 297                                                                    
                                                                               
 REPRESENTATIVE KOHRING said the DOL was concerned there would be              
 perpetuating costs involving the guidelines.  The guidelines would            
 uniformly apply to any taking and be comprehensive enough not to              
 call for additional drawings.                                                 
                                                                               
 Number 310                                                                    
                                                                               
 REPRESENTATIVE ELTON asked if Representative Kohring had a chance             
 to review a memo written by the State Forester.  He thought the               
 Division of Forestry (DOF) had an expectation of a loss of hundreds           
 of millions of dollars.  He believed it would be prudent to get a             
 fiscal note from the Department of Natural Resources (DNR) to                 
 formalize an estimate.                                                        
                                                                               
 Number 322                                                                    
                                                                               
 MR. LYON stated the DOF was referring to legislation prohibiting              
 the use of timber within a 66 foot buffer zone currently in place.            
 Individuals who haven't bought property before buffer zones were              
 installed currently don't have the value of the property, but those           
 individuals who bought the land before buffer zoning, have lost               
 value in their land.  The memo mentioned hundreds of millions of              
 dollars in value not utilized by the individual property owners.              
                                                                               
 Number 343                                                                    
                                                                               
 REPRESENTATIVE ELTON stated much of the land involved were Native             
 lands transferred prior to the Forest Practices Act.  This Act was            
 drafted by foresters, people in fishing communities and by other              
 resource users to protect hundreds of millions of dollars in other            
 resources.                                                                    
                                                                               
 Number 353                                                                    
                                                                               
 REPRESENTATIVE KOHRING stated the basic intent of the regulations             
 is to protect the well-being of the public.  A restriction from an            
 individual's property rights calls for just compensation.  He                 
 believed HB 154 would have an impact on the burden of regulations             
 within society, both on national and state levels.                            
                                                                               
 Number 376                                                                    
                                                                               
 CO-CHAIR IVAN recognized the attendance of Representative Norm                
 Rokeberg.                                                                     
                                                                               
 Number 380                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked about a fiscal note from the DOTPF.             
                                                                               
 Number 383                                                                    
                                                                               
 MR. LYON stated he hadn't specifically asked for a fiscal note from           
 DOTPF.                                                                        
                                                                               
 Number 388                                                                    
                                                                               
 REPRESENTATIVE VEZEY stated it was the policy of the Knowles                  
 Administration that the committee request fiscal notes, not the               
 bill sponsor.  The Administration is asking committees to request             
 fiscal notes from them, and they would oversee the job of                     
 protracting them.                                                             
                                                                               
 Number 397                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked if Tom Boutin would be available for            
 questioning.                                                                  
                                                                               
 Number 404                                                                    
                                                                               
 REPRESENTATIVE KOHRING said he wasn't aware of Mr. Boutin's                   
 attendance.                                                                   
                                                                               
 Number 409                                                                    
                                                                               
 CO-CHAIR IVAN stated members from the Division of Forestry were               
 present to answer questions.                                                
                                                                               
 Number 419                                                                    
                                                                               
 JIM MCALLISTER, Regional Forester, Division of Forestry Coastal               
 Region Office, Department of Natural Resources (DNR), said he would           
 answer questions regarding forest practices issues.                           
                                                                               
 Number 422                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked him to explain a section of the memo            
 from Tom Boutin.                                                              
                                                                               
 Number 424                                                                    
                                                                               
 MR. MCALLISTER said the Forest Practices Act specified private                
 Native owned lands have a 66 foot buffer left on all streams of a             
 certain type.  The Act had no defined amount of streams it would              
 entail.   He stated a single tree could be worth around $20,000               
 creating an estimate of hundreds of millions of dollars in value              
 lost to the Native corporations with the established buffer zones.            
                                                                               
 Number 440                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked if HB 154 came into effect, the                 
 estimated millions would be the loss to Native corporations.                  
                                                                               
 Number 443                                                                    
                                                                               
 MR. MCALLISTER said buffers are in the definition of a taking.                
 Fish and Wildlife had installed the buffers for fish habitat                  
 purposes.  The buffers were placed with the representation and                
 process of private landowners, fishing communities and regulatory             
 agencies.                                                                     
                                                                               
 Number 454                                                                    
                                                                               
 REPRESENTATIVE NICHOLIA asked if HB 154 would have an impact on the           
 fishing industry.                                                             
                                                                               
 Number 457                                                                    
                                                                               
 MR. MCALLISTER stated the current buffers established in 1990 would           
 be considered a taking and the state could be liable to pay private           
 property owners for the value within the buffers.                             
                                                                               
 Number 464                                                                    
                                                                               
 CO-CHAIR IVAN asked for questions from the committee.                         
                                                                               
 Number 466                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if there was an estimate of uncutable              
 timber located on private land.                                               
                                                                               
 Number 470                                                                    
                                                                               
 MR. MCALLISTER said he didn't have an estimate as it wasn't                   
 possible to have a detailed counting of the trees as well as the              
 variety of streams.                                                           
                                                                               
 Number 476                                                                    
                                                                               
 REPRESENTATIVE VEZEY said the Forest Practices Act didn't deal with           
 areas where harvesting wasn't considered but only in those where              
 state law prohibited certain trees from being harvested.  He                  
 believed an estimate could be deduced from these areas.                       
                                                                               
 Number 481                                                                    
                                                                               
 MR. MCALLISTER said the Division of Forestry identifies the streams           
 meeting the criteria but thousands of miles of buffers were still             
 left.                                                                         
                                                                               
 Number 491                                                                    
                                                                               
 REPRESENTATIVE VEZEY stated this bill would only impact private               
 landowners and not state or federal land.  He wanted to know what             
 percent of commercially valuable forest were privately owned.                 
                                                                               
 Number 498                                                                    
                                                                               
 MR. MCALLISTER said the buffers referred to private land, as                  
 federal land had its own buffer requirements.  About half a million           
 acres were being harvested in the Southeast region since 1990.                
                                                                               
 Number 505                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked how many buffer zones were in the                  
 private land areas.  He also wanted to know what percent of the               
 half a million acres was harvested.                                           
                                                                               
 Number 509                                                                    
                                                                               
 MR. MCALLISTER didn't know what percent and he said some village              
 corporations have harvested most of their property outside of the             
 buffers.  The majority of the buffer trees are still standing,                
 however, and one village corporation has estimated their uncut                
 trees equaling about $20 million in profit.                                   
                                                                               
 Number 521                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if this was in response to HB 154.                 
                                                                               
 Number 522                                                                    
                                                                               
 MR. MCALLISTER said the estimate was in response to the value of              
 the buffers and the village corporation estimate of what was left.            
                                                                               
 Number 525                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if the $20 million profit was what was             
 tied up in regulations.                                                       
                                                                               
 Number 527                                                                    
                                                                               
 CO-CHAIR IVAN invited testimony from witnesses on teleconference.             
                                                                               
 Number 539                                                                    
                                                                               
 LARS EHRLANDER said he had faxed information for the committee the            
 day before and wondered if the members had received it.  He                   
 appreciated the committee's effort in working on HB 154.  He has              
 been involved for 12 years in a condemnation case which has been              
 difficult for his family.  He believed his case could be used as a            
 worst case scenario.  He stated he was glad this committee was                
 working on legislation to ensure his situation didn't happen to               
 anyone else.  He was concerned about the ten year time limit to               
 file a complaint or take action regarding a taking.  He expressed             
 concern about when the time limit began, when the government                  
 committed the wrong, or when the owner realized he had been hurt.             
 Mr. Ehrlander's case started 12 years ago and is still ongoing and            
 he's not even a hundred percent sure that he was hurt as he is                
 awaiting the decision of the Supreme Court ruling.  He said it                
 would be difficult for him to remain within the ten year limit to             
 file a complaint if he's not sure whether he was hurt.  He had four           
 approved city tax lots and one was taken due to a separation                  
 agreement the state didn't want to go through with.  He wanted to             
 see the immunity removed from state officials as he's noticed the             
 government had more immunity than members in private industry.  In            
 his case, his property and working capital were taken but the fees            
 to take it to court, he estimated, were over $120,000.                        
                                                                               
 Number 652                                                                    
                                                                               
 CO-CHAIR IVAN invited Mick Mans to testify.                                   
                                                                               
 Number 655                                                                    
                                                                               
 MICK MANS said HB 154 would prevent government agencies from                  
 bankrupting individuals and companies from preventing sensible,               
 economic development of Alaska.  He said without the bill, all the            
 current federal and state laws meant to protect property rights are           
 meaningless.  He thought HB 154 should be expanded to include                 
 mineral rights, grazing rights, logging rights, access rights,                
 traffic rights, recreational rights and all rights meant to protect           
 development of any kind.  He believed the government would continue           
 takings knowing the individual probably wouldn't be able to pay the           
 lawsuit fees without HB 154.  He referred to Section 1 in which no            
 person shall be deprived of life, liberty and property for equal              
 protection.  He then referred to different amendments and the U.S.            
 Constitution concerning private property and the individual's                 
 rights.  He explained the big case he's been through with his                 
 mining operation and the battles with the Department of Fish and              
 Game and the government to have mining rights to a certain section            
 of land.  He stated something should be done to end the government            
 abuse of private individuals and companies with the intent to enjoy           
 living in Alaska without having to worry about governmental takings           
 without due process of law.                                                   
                                                                               
 TAPE 95-11, SIDE B                                                            
 Number 073                                                                    
                                                                               
 CO-CHAIR IVAN invited Bill Samples from Kodiak to testify.                    
                                                                               
 Number 084                                                                    
                                                                               
 BILL SAMPLES, Project Manager, Federal Government, said there must            
 be a cost/benefit ratio between a government agency action and what           
 it's going to cost and what it would take out of the private                  
 sector.  He stated HB 154 parallels the constitutional law.  He               
 stated he wasn't sure how buffers created in 1990 could be subject            
 to legislation created in 1995.  He wanted to recognize regulation            
 requiring there be environmental assessments done and that no                 
 property could be used for criminal activity.                                 
                                                                               
 Number 136                                                                    
                                                                               
 CO-CHAIR IVAN asked if there were any questions or comments from              
 the committee.  He invited Pat Carlson to testify.                            
                                                                               
 Number 141                                                                    
                                                                               
 PAT CARLSON, Assessor, Kodiak Island Borough, was concerned about             
 the implications of taxation and assessment adjustments required.             
 This would be in direct conflict with existing state law which                
 requires all property be annually assessed at one hundred percent             
 market value.  A property owner could acquire an appraisal from an            
 outside agent that would become the assessment regardless of the              
 opinion of the value.  He's currently involved with land                      
 acquisitions in Kodiak in which he has appraisals from certified              
 appraisers that are millions of dollars apart.  He mentioned                  
 discussions concerning timber land where expansion of the buffers             
 to one hundred feet could have tremendous impacts on Native                   
 corporations' timber harvesting on Afognak Island.  He believed               
 analysis needed to be done on the impact dealing, not only with               
 government agencies but also with private citizens, in the                    
 fisheries industries.  The state could, by default pay millions of            
 dollars.  He stated if the committee went back to the original                
 language of the bill regarding taxation, which does not conflict              
 with the market value estimate, and exclude language regarding                
 appraisals, many conflicts could be avoided.  The procedures                  
 already in place satisfy the needs of the citizens as to the value            
 of their property.  He suggested further analysis be done by the              
 DOL when looking into the impacts of the various issues regarding             
 changes made to mining laws or timber laws.                                   
                                                                               
 Number 207                                                                    
                                                                               
 REPRESENTATIVE ELTON asked what would happen if a taking has been             
 determined because a property owner wasn't allowed or no longer               
 allowed to do something.  He asked if Mr. Carlson would view the              
 private property at the rate which included the value of the                  
 property plus the amount paid by the government to compensate the             
 property owner in the event of a taking, or would he assess the               
 property at the new value that reflects the government action that            
 took away a property right.                                                   
                                                                               
 Number 226                                                                    
                                                                               
 MR. CARLSON said, as an assessor, he was required to annually                 
 reappraise the property at its market value.  The government action           
 affects the highest economic return of that property and decreases            
 the value.  The assessor would have to, under the law, reflect this           
 in his assessment.  In a physical taking of a property, the                   
 assessor would have to reflect that under the existing law.  He               
 said the appraisal issue is necessary and makes the assessment                
 procedure complicated.                                                        
                                                                               
 Number 244                                                                    
                                                                               
 REPRESENTATIVE ELTON said, if he was a property owner and the                 
 government had compensated him for the loss of property, he                   
 believed the money given to him would be a reflection of the value            
 of the property.  He said this money should be taken into account             
 with the base value of the property.                                          
                                                                               
 Number 256                                                                    
                                                                               
 MR. CARLSON said under existing state law, he would not reflect the           
 income to the property owner.  The property would receive the                 
 compensated money and lower the assessed value because of the                 
 taking.                                                                       
                                                                               
 Number 261                                                                    
                                                                               
 REPRESENTATIVE VEZEY said he understood that under current state              
 law if there was a change in zoning, the uses prior to the change             
 are allowed to continue as long as there aren't major changes that            
 would cause it to go beyond a maintenance of the establishment.               
                                                                               
 Number 270                                                                    
                                                                               
 MR. CARLSON said this was a correct understanding.  He said he ran            
 into evaluation problems and had to adjust it to fit into the                 
 existing annual analysis.                                                     
                                                                               
 Number 276                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if a community decided a certain                   
 establishment was no longer desirable, would rezoning change the              
 fact that this proprietor could continue to do business.                      
                                                                               
 Number 283                                                                    
                                                                               
 MR. CARLSON said it was difficult to analyze.  The assessor would             
 look at the general retail value of the property and make                     
 adjustments if the property was required not to be used.                      
                                                                               
 Number 293                                                                    
                                                                               
 REPRESENTATIVE VEZEY stated he was just questioning Mr. Carlson's             
 background in the commercial regulation of property.                          
                                                                               
 Number 298                                                                    
                                                                               
 REPRESENTATIVE ELTON said if there was a change in zoning, at the             
 point the property is sold, the full value couldn't be collected              
 because of additional restrictions.  He said figuring out whether             
 it would be a taking from the past owner or the next would be an              
 interesting question.                                                         
                                                                               
 Number 307                                                                    
                                                                               
 REPRESENTATIVE VEZEY said the law was well established and property           
 rights could be transferred where the grandfather rights clause               
 ends in that this use terminates for whatever reason on the part of           
 the owner.                                                                    
                                                                               
 Number 314                                                                    
                                                                               
 CO-CHAIR IVAN invited Steve Van Sant to testify.                              
                                                                               
 Number 316                                                                    
                                                                               
 STEVE VAN SANT, State Assessor, Department of Community and                   
 Regional Affairs (DCRA),  stated currently in Alaska the appeal               
 procedure is set up.  The bill by-passes the appeal procedure to              
 give property owners the option to appeal before the Board of                 
 Equalization.  This one asks that an independent appraisal from a             
 real estate appraiser be accepted by the municipality in the                  
 evaluation mentioned earlier.  He asked the legislature to look at            
 the original bill that states any taking should be reflected in the           
 assessed value and, if the landowner agrees, may appeal it.                   
                                                                               
 Number 338                                                                    
                                                                               
 CO-CHAIR IVAN invited Elizabeth Holt to testify.                              
                                                                               
 Number 340                                                                    
                                                                               
 ELIZABETH HOLT stated she opposed HB 154.  She said she owned                 
 several pieces of lake front property and she didn't understand why           
 she should be compensated due to regulations to protect water                 
 quality.  She said this issue has bothered the Mat-Su Valley for              
 years.                                                                        
                                                                               
 Number 357                                                                    
                                                                               
 CO-CHAIR IVAN invited Lucille Frey to testify.                                
                                                                               
 Number 359                                                                    
                                                                               
 LUCILLE FREY stated she was a private landowner who lost property             
 rights every time a regulation or ordinance was passed.  She said             
 HB 154 encourages more economic development for building.  Her                
 property has undergone government takings and she believed the                
 private property owner needed protection.                                     
                                                                               
 Number 372                                                                    
                                                                               
 CO-CHAIR IVAN invited Ray Briggs to testify.                                  
                                                                               
 Number 375                                                                    
                                                                               
 RAY BRIGGS said he was involved in a federal lawsuit against the              
 city of Palmer for contaminating property next to the airport which           
 is next to his property.  He asked what the private home owner had            
 when a state agency will not enforce an in-state or federal                   
 regulation against individuals who break the regulations by                   
 creating a hazardous dump site into wetlands.  He believed this               
 would be an adverse condemnation.  He bought property in 1989 from            
 the federal government, Small Business Administration, who                    
 appraised the property at $295,000 but the Federal Bureau of                  
 Administration (FBA) withdrew their support.  He believed this was            
 because the FBA wanted to limit their liability for the cleanup.              
 He wanted to know where the landowner went except to the federal              
 court to sue the state or municipality for breaking the                       
 regulations.  He said the city of Palmer wasn't fined for the                 
 contamination.  He asked where the private landowner stood at this            
 point.                                                                        
                                                                               
 Number 414                                                                    
                                                                               
 CO-CHAIR IVAN asked Mr. Lyon to answer the question.                          
                                                                               
 Number 417                                                                    
                                                                               
 MR. LYON stated he wasn't sure how the question pertained to HB
 154.                                                                          
                                                                               
 Number 420                                                                    
                                                                               
 REPRESENTATIVE VEZEY stated the comments made by Mr. Briggs are               
 covered under federal law and not under the scope of HB 154.                  
                                                                               
 Number 424                                                                    
                                                                               
 MR. BRIGGS asked if HB 154 dealt with inverse condemnation.                   
                                                                               
 Number 426                                                                    
                                                                               
 REPRESENTATIVE VEZEY said he interpreted HB 154 as addressing the             
 issue of inverse condemnation by regulation.                                  
                                                                               
 Number 431                                                                    
                                                                               
 MR. LYON said this was also his interpretation.                               
                                                                               
 Number 432                                                                    
                                                                               
 MR. BRIGGS said his property was appraised at $295,000 and the FBA            
 doesn't want the property.  He wanted to know what to do next now             
 that his property was devalued to zero and if HB 154 could help               
 him.                                                                          
                                                                               
 Number 441                                                                    
                                                                               
 MR. LYON said there was a set up process to remedy Mr. Briggs'                
 situation.  He stated he wasn't familiar with this area of law.               
                                                                               
 Number 446                                                                    
                                                                               
 MR. BRIGGS asked if anyone could send him a copy of regulations he            
 could go by.  He had received a cost estimate from an attorney of             
 $250,000 to $300,000 to take his case into court.                             
                                                                               
 Number 454                                                                    
                                                                               
 CO-CHAIR IVAN said representatives from state agencies weren't                
 present to address Mr. Briggs' concern but he would follow up on it           
 and get information back to Mr. Briggs.  He invited Wesley Newcomb            
 to testify.                                                                   
                                                                               
 Number 463                                                                    
                                                                               
 WESLEY NEWCOMB stated he and a number of people he was representing           
 were all in favor of HB 154.                                                  
                                                                               
 Number 469                                                                    
                                                                               
 CO-CHAIR IVAN invited Peggy Mullen to testify.                                
                                                                               
 Number 470                                                                    
                                                                               
 PEGGY MULLEN referred to page 7 regarding takings as describing               
 anything including restraints on wetlands and restricted use of               
 private property.  She stated the bill didn't address the potential           
 for excluding an economic resource such as the river salmon                   
 industry affecting commercial and sports fishermen and a borough's            
 decision to restrict use of riverfront property.  She said if she             
 wanted to have a bulk fuel storage facility, for example, on her              
 riverbank property, the city borough could come and say she                   
 couldn't as it could harmfully affect salmon.                                 
                                                                               
 Number 528                                                                    
                                                                               
 CO-CHAIR IVAN said Bill Cummings from the DOL was present to                  
 address this issue.                                                           
                                                                               
 Number 532                                                                    
                                                                               
 REPRESENTATIVE KOTT said regulations could be considered necessary            
 to avoid or correct a public nuisance.                                        
                                                                               
 Number 536                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked what percent of the 62-mile Kenai                  
 riverbank was private property.                                               
                                                                               
 Number 540                                                                    
                                                                               
 MS. MULLEN responded that approximately 58 percent was private                
 property.                                                                     
                                                                               
 Number 541                                                                    
                                                                               
 REPRESENTATIVE VEZEY said Ms. Mullen's comments concerning bulk               
 fuel storage close to a riverbank was included under different                
 statutes.  He said there was a several million dollar bond                    
 requirement to have such a storage facility.  He didn't think this            
 was a reasonable concern for Ms. Mullen to have.  He asked what Ms.           
 Mullen's property boundary was compared to the Kenai River.                   
                                                                               
 Number 553                                                                    
                                                                               
 MS. MULLEN said most of the bank lots were referred to as piano key           
 lots because they run directly up to the bank and may only be 100             
 feet wide.  She said the agencies available in Kenai aren't well              
 versed enough to explain restrictions above ordinary tidewater.               
 She said she was concerned about the bill being too one-sided in              
 compensating private property owners instead of looking at how to             
 benefit the whole community.                                                  
                                                                               
 Number 583                                                                    
                                                                               
 REPRESENTATIVE VEZEY said it was one thing for a government agency            
 to appropriate land for public use, such as roads, but for the                
 agency to request that private land be used for the public would              
 anger many individuals.                                                       
                                                                               
 Number 592                                                                    
                                                                               
 MS. MULLEN said most riverbank landowners choose to live there                
 because they love to fish and are angry at having anyone instruct             
 them on how to use their property.                                            
                                                                               
 Number 601                                                                    
                                                                               
 CO-CHAIR IVAN invited Steven Coon to testify.                                 
                                                                               
 Number 604                                                                    
                                                                               
 STEPHEN CONN, Executive Director, Alaska Public Interest Research,            
 stated HB 154 was an unmitigated disaster.  He said it disempowers            
 communities in the urban areas from dealing with these issues and             
 it has tremendous effects on villages developing their zoning                 
 regimes.  He said it puts a stake in local control.  He said to               
 look at the potential for outside businesses to come in and take              
 from the state revenue.  He thought the flexible language in the              
 bill would create a playground for lawyers.  He stated this bill              
 would put an end to communities making their own decisions to the             
 extent it would have an effect over the rights of the private                 
 property owner.                                                               
                                                                               
 Number 649                                                                    
                                                                               
 CO-CHAIR IVAN invited Tom Pitman to testify.                                  
                                                                               
 Number 651                                                                    
                                                                               
 TOM PITMAN, Municipal Assessor, Municipality of Anchorage, agreed             
 with the earlier concerns discussed by Pat Carlson.  He thought HB
 154 stifled an appropriate approach in property evaluation.  He               
 said he didn't understand the intent under AS 34.50.120 requiring             
 an assessor's analysis of economic effects.                                   
                                                                               
 Number 675                                                                    
                                                                               
 CO-CHAIR IVAN invited Tony Turrini to testify.                                
                                                                               
 Number 676                                                                    
                                                                               
 TONY TURRINI, Counsel, National Wildlife Federation, said he                  
 opposed HB 154.  He said HB 154 would create a larger, more                   
 expensive and less efficient government.  He said attorneys, who              
 would litigate the many claims raised by this legislation, would              
 benefit from this bill.  He said any action taken by the government           
 which affects real or private property is a taking creating                   
 unlimitless opportunities for claims.  Under HB 154, an                       
 unscrupulous business could ask to be compensated for not complying           
 with anti-trust regulations, for establishing a monopoly or                   
 engaging in price-fixing.  He said Alaskan taxpayers would end up             
 paying for the legislation.  He said HB 154 would require state and           
 municipal governments and agencies to engage in a time consuming,             
 expensive analysis of potential risks, costs and alternatives.                
                                                                               
 TAPE 95-12, SIDE A                                                            
 Number 017                                                                    
                                                                               
 CO-CHAIR IVAN invited John Isaacs to testify.                                 
                                                                               
 Number 020                                                                    
                                                                               
 JOHN ISAACS, Alaska Chapter of the American Planning Association,             
 has tried to come up with solutions for problems facing Alaskan               
 communities, such as the restrictive Federal Wetlands Permitting              
 Act.  He said his association agrees with some concepts of the                
 bill, such as the unreasonable and restrictive taking of property.            
 He questioned whether HB 154 was the appropriate solution to the              
 problems and with the vague, broad language in the bill.  He                  
 thought those getting the worse end of the deal concerning takings            
 claims would be communities and the general public.  He recommended           
 the committee not take action regarding HB 154 until the broad                
 scope of language could be improved.                                          
                                                                               
 Number 074                                                                    
                                                                               
 CO-CHAIR IVAN asked if there were any other witnesses on                      
 teleconference wishing to testify.                                            
                                                                               
 Number 094                                                                    
                                                                               
 REPRESENTATIVE KOTT said HB 154 referred to civil liabilities.  He            
 was concerned about the provision regarding buffer zones protecting           
 anadromous streams and wouldn't apply retroactively.  He wondered             
 if the legislature would be obligated to provide financial                    
 incentives to those individuals.                                              
                                                                               
 Number 115                                                                    
                                                                               
 MR. MCALLISTER stated this was the DNR's concern.                             
                                                                               
 Number 120                                                                    
                                                                               
 REPRESENTATIVE KOTT asked if there was a representative from the              
 DOL to answer questions.                                                      
                                                                               
 Number 121                                                                    
                                                                               
 CO-CHAIR IVAN invited Bill Cummings to testify.                               
                                                                               
 Number 127                                                                    
                                                                               
 BILL CUMMINGS, Assistant Attorney General, Transportation Section,            
 Department of Law (DOL), expressed his pleasure at being present.             
                                                                               
 Number 130                                                                    
                                                                               
 REPRESENTATIVE KOTT asked if the current holdings in the buffer               
 zones would be affected and reimbursed.                                       
                                                                               
 Number 136                                                                    
                                                                               
 MR. CUMMINGS stated there was a 95 to 100 percent probability that            
 there would be compensation due to the drafting of HB 154.                    
                                                                               
 Number 146                                                                    
                                                                               
 REPRESENTATIVE VEZEY stated with the current holdings, compensation           
 would be offered, but upon the passage of HB 154, if the government           
 put restrictions on property, it would be regarded as a taking.               
                                                                               
 Number 154                                                                    
                                                                               
 REPRESENTATIVE KOHRING stated the intent of HB 154 was not to make            
 it retroactive to any period of time but from its effective date.             
 He said he would be willing to clarify this language in the bill.             
                                                                               
 Number 164                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked for a summary of property owners' rights           
 under the grandfather statute.                                                
                                                                               
 Number 167                                                                    
                                                                               
 MR. CUMMINGS said it was a common practice for example with zoning,           
 where a municipality comes in and changes permissible uses.                   
 Generally, property owners are prohibited from expanding the use              
 but could take steps to reasonably keep the building in usable                
 condition, locking the owner under the passage of a new ordinance.            
                                                                               
 Number 178                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked what happened if a city or municipality            
 decided to zone out a pornographic business.  He wanted to know the           
 options available for this business unwanted by a community.                  
                                                                               
 Number 187                                                                    
                                                                               
 MR. CUMMINGS replied that it depended upon the nature of the                  
 specific business.  He said there was an amount of litigation in              
 the Supreme Court concerning pornographic businesses, but there               
 were certain restrictions that could be applied and, in others,               
 couldn't.                                                                     
                                                                               
 Number 201                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked about liquor stores and the potential              
 for a municipality to build a school within the designated 400 yard           
 zone.  He asked what would happen to the liquor store.                        
                                                                               
 Number 209                                                                    
                                                                               
 MR. CUMMINGS said the liquor store would be able to remain in its             
 spot, as it was there first.                                                  
                                                                               
 Number 210                                                                    
                                                                               
 REPRESENTATIVE ELTON asked what would happen in a village that                
 voted to go dry and closes a liquor establishment.                            
                                                                               
 Number 213                                                                    
                                                                               
 MR. CUMMINGS said under HB 154, the municipality or state ends up             
 buying the liquor store stock and liquor license because it was a             
 type of property.                                                             
                                                                               
 Number 222                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked what happened next after an action of              
 this sort.                                                                    
                                                                               
 Number 224                                                                    
                                                                               
 MR. CUMMINGS said the liquor store would close down and the owner             
 got the bad end of the deal.                                                  
                                                                               
 Number 227                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if there hadn't been court cases                   
 concerning this particular issue.                                             
                                                                               
 Number 229                                                                    
                                                                               
 MR. CUMMINGS stated under current statutory authority, liquor is              
 one of the more regulated commodities.  He said a risk in owning              
 a liquor license was a community could vote to go dry creating a              
 loss in investment for the owner.                                             
                                                                               
 Number 235                                                                    
                                                                               
 REPRESENTATIVE VEZEY said there was a provision in the regulations            
 concerning the status of a liquor license in a community gone dry.            
 He thought the provisions stated if liquor became legal again the             
 prohibited liquor license and owner had grandfather rights.                   
                                                                               
 Number 244                                                                    
                                                                               
 MR. CUMMINGS said this provision could be in effect but one had to            
 wait to exercise it, and by then it didn't have much value.  He               
 said there were a large number of villages that had been dry for a            
 while and the liquor license owner had to wait until the village              
 voted to go wet again.  He wasn't sure what the license right and             
 expectancy would be worth.                                                    
                                                                               
 Number 253                                                                    
                                                                               
 CO-CHAIR IVAN asked Mr. Cummings to respond to Mr. Briggs' earlier            
 question concerning hazardous waste devaluing property.                       
                                                                               
 Number 260                                                                    
                                                                               
 MR. CUMMINGS replied under federal legislation, this claim could              
 come against the municipality but he wasn't sure it would rise to             
 the level of a taking under HB 154.                                           
                                                                               
 Number 270                                                                    
                                                                               
 CO-CHAIR ALAN AUSTERMAN said many complaints from individuals via             
 teleconference referred to simplistic things where a taking would             
 be along water habitat areas, setbacks on properties, requiring               
 water and sewer in lots and not being able to subdivide a property.           
 He wanted to know who made this determination.  He believed the               
 language in HB 154 would result in numerous ongoing court cases               
 with municipalities based upon public demands.                                
                                                                               
 Number 296                                                                    
                                                                               
 MR. CUMMINGS said routine police power rulings would be a taking              
 under HB 154.  Rulings included such things as the Forest Practices           
 Act, set back requirements, subdivisions, sewer requirements and              
 Division of Motor Vehicle codes regarding tinted windows.                     
                                                                               
 Number 311                                                                    
                                                                               
 REPRESENTATIVE ELTON referred to public testimony and agreed that             
 HB 154 would create a large opportunity for certain suits.  He                
 asked what Mr. Cummings' expectation of municipalities was and                
 whether they would be going to court more often in the future and             
 if the DOL would be involved in more cases.                                   
                                                                               
 Number 330                                                                    
                                                                               
 MR. CUMMINGS said he believed municipalities would be litigating              
 more.  He viewed HB 154 as a full employment act for lawyers                  
 regardless of which side they took.                                           
                                                                               
 Number 340                                                                    
                                                                               
 CO-CHAIR AUSTERMAN asked for confirmation regarding the forest                
 industry on Kodiak Island and whether the additional property                 
 intended to be developed would be regarded as a taking if a buffer            
 zone setback was set up.                                                      
                                                                               
 Number 350                                                                    
                                                                               
 MR. CUMMINGS said it would be a taking either way.  He stated,                
 under the Alaska Native Claims Settlement Act (ANCSA), corporations           
 got land without restrictions.  Since then, the state has enforced            
 the Forest Practices Act and imposed standards, creating a                    
 situation in which the Natives had property rights and the                    
 legislation has taken away their ability to fully exploit the                 
 resources of the property.  Under HB 154, with this loss, the                 
 Natives are entitled compensation.                                            
                                                                               
 Number 361                                                                    
                                                                               
 CO-CHAIR IVAN invited Geron Bruce to testify.                                 
                                                                               
 Number 369                                                                    
                                                                               
 GERON BRUCE, Legislative Liaison, Office of the Commissioner,                 
 Alaska Department of Fish and Game (ADF&G), mentioned several                 
 concerns ADF&G had toward the committee substitute for HB 154.  He            
 stated under Title 16, protecting and maintaining fish and wildlife           
 resources are the responsibility of the department.  He asked the             
 committee to consider most of these resources are migratory and               
 could be on private property at one point and public lands at                 
 another.  He said HB 154 would impair the ability of the department           
 to protect these resources.  He reviewed the historical basis of              
 why Americans chose to take this approach in regarding their fish             
 and wildlife resources as public.  He said the ADF&G views HB 154             
 as undoing the balance between private property owners and                    
 recognition of the rights of fish and wildlife resources by                   
 elevating the rights of the private landowner above the public                
 interest.  He stated this would put the ADF&G in an impossible                
 situation by being mandated by Title 16 to protect public fish and            
 wildlife resources and by prohibiting the ADF&G from using its                
 regulations to exercise the mandates.  He gave examples of problems           
 caused for the ADF&G upon the passage of HB 154.  The bill would              
 restrict the department's ability to protect important salmon                 
 rearing and spawning habitats due to requested mining proposals in            
 Alaskan waters.  He also elaborated on the Kenai River forest                 
 industry creating a loss of about 12 percent of the productive                
 salmon producing habitat from habitat alterations.  He believed HB
 154 would undermine current proposals made by municipalities to               
 protect the resources.  Access was another concern of the ADF&G.              
 A private landowner could have timber on his property he wished to            
 harvest but is impeded by a salmon producing stream on his                    
 property.  The owner would have to work with the ADF&G to get a               
 permit to access the timber and wait until there was no danger of             
 affecting the salmon population.  This restriction on when it was             
 safe to get the timber from across the stream could be misconstrued           
 as a taking by the private property owner under HB 154.  Mr. Bruce            
 referred to Potters Marsh and a parcel of land leased to a private            
 individual who wanted to develop a truck stop.  The ADF&G denied              
 this proposal and, had HB 154 been in effect, the individual could            
 have claimed this as a taking and the department would have had to            
 compensate the owner.  The ADF&G believes the current permit system           
 works well and have found only four former appeals for denial of              
 permits.  Mr. Bruce gave an estimate of applications for permits              
 reviewed in Region 2 from July 1, 1991, to June 30, 1994, to prove            
 how insignificant the appeals were.  He said there were 2300                  
 applications reviewed for Title 16 permits, 1335 permits were                 
 issued, 12 were denied, and the rest were deemed unnecessary.  He             
 again reiterated the ADF&G believed the current system worked well            
 in providing a balance for private property owners to exercise                
 their land rights and the public's interest in protecting the fish            
 and wildlife resources important to Alaska.                                   
                                                                               
 Number 538                                                                    
                                                                               
 CO-CHAIR IVAN asked if the committee had any questions or comments.           
 He invited Steve Noey to testify.                                             
                                                                               
 Number 544                                                                    
                                                                               
 STEVE NOEY, Real Estate Broker, said from the testimony already               
 given, he believes regulatory takings are being done.  He referred            
 to a memorandum submitted by the DNR regarding stream buffers which           
 says, by using the buffer program and AS 41.17, they have taken               
 millions of dollars in value from Native corporations.   He                   
 supported HB 154 which he believes takes care of problems pointed             
 out by government agencies.  He stated the private property owner             
 should be justly compensated for his property as the Constitution             
 states.                                                                       
                                                                               
 Number 598                                                                    
                                                                               
 REPRESENTATIVE ELTON asked if a Native corporation should be made             
 to pay for the loss of a common property resource.  He questioned             
 attaining the balance between the action of a private landowner and           
 that of someone wishing to make a living on resources degraded by             
 the private landowner.                                                        
                                                                               
 Number 608                                                                    
                                                                               
 MR. NOEY said he wasn't aware of any situations where a resource              
 was completely annihilated, eliminating the livelihood of someone.            
 He stated a resource on someone's private property belonged to that           
 individual.                                                                   
                                                                               
 Number 613                                                                    
                                                                               
 REPRESENTATIVE ELTON was concerned with the belief that government            
 can pay, which really places this responsibility onto the taxpayers           
 or Alaskans not receiving necessary services such as education or             
 public safety.                                                                
                                                                               
 Number 616                                                                    
                                                                               
 MR. NOEY said this wasn't true because if the government didn't               
 take, it didn't pay.  He said the government had to act first and             
 pay later.                                                                    
                                                                               
 Number 617                                                                    
                                                                               
 REPRESENTATIVE ELTON said people have taken the salmon resources              
 and not paid, but the government pays for the loss of timber                  
 resources.                                                                    
                                                                               
 Number 619                                                                    
                                                                               
 CO-CHAIR IVAN asked the committee if they had any questions or                
 comments.  He invited Lisa Blacher to testify.                                
                                                                               
 Number 629                                                                    
                                                                               
 LISA BLACHER, Lobbyist, Alaska Environmental Lobby, Inc., stated              
 she opposed HB 154.  She referred to the bill sponsor and his use             
 of Mr. Noey as an example for why HB 154 was important.  She said             
 Mr. Noey wanted to build an improper sewage disposal system on his            
 subdivision in Kachemak Bay.  She stated he still hadn't complied             
 with the Department of Environmental Conservation's (DEC) waste               
 disposal permitting guidelines and was denied the ability to                  
 proceed with his development.  She read the DOL's trial brief,                
 concerning Steve Noey v. DEC, stating DEC's engineers testified it          
 would be appropriate to reject Mr. Noey's proposal because waste              
 water would be discharged to the surface of the land impacting                
 adjoining property and posing a public health hazard.  Upon the               
 passage of HB 154, Mr. Noey could be allowed exemption from DEC's             
 permitting process or have the right to sue to make up for money              
 lost.  Ms. Blacher talked about Alaska's high rates of Hepatitis B            
 and other infectious diseases and asked the committee if it wanted            
 to weaken a regulation that monitors sewage.  She said HB 154 would           
 undermine municipal and local laws controlling zoning restrictions,           
 labor laws and seafood handling resulting in endless litigation.              
 She said information concerning the cost to other states that have            
 enacted similar legislation has not been substantial because it was           
 too early to see results.  She noted the administrative costs have            
 been tremendous, reaching into the millions.  She asked the                   
 committee to consider the costliness of hiring legions of attorneys           
 and attending to thousands of claims.  Ms. Blacher said regulations           
 would always be in place and anyone could file a claim saying the             
 regulations affected them.  The regulations are important in                  
 protecting public health and safety.  However, if a regulation                
 causes a hardship for anyone, the court system is in place to                 
 address these cases.  She believed regulatory takings should be               
 looked at on a case-by-case basis instead of creating a bill                  
 addressing these cases as a whole.                                            
                                                                               
 TAPE 95-12, SIDE B                                                            
 Number 000                                                                    
                                                                               
 PAM NEAL, Executive Director, Alaska State Chamber of Commerce,               
 said she supported HB 154 as it would sensitize government to                 
 private property rights.  She said what is happening is regulatory            
 action is more subtle than putting a parkway through a land area.             
 Many groups are using the regulatory process to determine how                 
 private property will be used.  Groups such as the timber industry            
 and the mining industry are two suffering from this action.                   
 Federal regulations are a problem seen nationwide with no                     
 consideration of the loss to private property owners.  She believed           
 that private property rights are the highest concern within Alaska.           
 She said upon the loss of any kind, someone is paying, be it the              
 property owners or the government.  Without some kind of                      
 protection, she believes the private property owner is paying too             
 frequently for a government regulation.                                       
                                                                               
 Number 065                                                                    
                                                                               
 CO-CHAIR IVAN asked for questions from the committee.  He asked               
 Representative Kohring to follow up on the comments given by all              
 the testifiers.                                                               
                                                                               
 Number 069                                                                    
                                                                               
 REPRESENTATIVE KOHRING said he appreciated the discussions given by           
 the testifiers.  He saw this as pitting the small landowner against           
 a government trying to defend itself.  He believed this bill was              
 considered a threat by government agencies against their ability to           
 continue opposing restrictions.  He asked who was being defended,             
 the private landowner or government.  He thought HB 154                       
 sufficiently addressed these concerns and stated the individual had           
 constitutional rights.  He said the bottom line was to compensate             
 a private landowner whose property was devalued as it was his                 
 right.  He requested the committee's consideration with HB 154.               
                                                                               
 Number 135                                                                    
                                                                               
 CO-CHAIR AUSTERMAN interpreted HB 154 as not addressing the cases             
 he referred to in previous comments.  He believed if a community              
 wished to zone to certain standards they had the right.  If they              
 created a zoning not agreeable by someone, this bill would enable             
 the individual to file a takings claim.  He said the good of a                
 resource had to have some overall value to all Alaskan citizens.              
 He stated he was uncomfortable with HB 154 as it was currently                
 written unless his concerns could be addressed in the bill.  He               
 said it was one thing for an individual to buy property with the              
 knowledge of set guidelines regarding the zoning of that property,            
 but not allowing the owner to develop that property gives the                 
 individual the right to protest.                                              
                                                                               
 Number 195                                                                    
                                                                               
 REPRESENTATIVE KOHRING said rezoning didn't necessarily mean there            
 would be a devaluation of property as it could even increase the              
 value of property.  He remembered a case in Wasilla where property            
 was reclassified as a commercial lot increasing that lot's value.             
                                                                               
 Number 208                                                                    
                                                                               
 CO-CHAIR AUSTERMAN referred to page 7, Section 9, which redefines             
 taking as other governmental actions that regulates or imposes a              
 restraint on private property use for public benefit.  This public            
 benefit could be for rezoning an area but under HB 154, if an                 
 individual didn't want his property rezoned for public use, he                
 could claim his property was devalued.  He assumed public benefit             
 would go so far as to say the community had rights.                           
                                                                               
 Number 222                                                                    
                                                                               
 REPRESENTATIVE KOHRING said the value wouldn't be arbitrarily                 
 determined by the property owner but by fee appraisal.  It wouldn't           
 be up to the private landowner to decide if his property had lost             
 value, but by the appraiser.                                                  
                                                                               
 Number 231                                                                    
                                                                               
 REPRESENTATIVE VEZEY said rezoning has been claimed to be a taking.           
 He didn't think this was common when a higher standard of property            
 use was established, it usually raised the standard.  He agreed               
 there could be basis for argument if the standards were lowered.              
 He stated zoning didn't stop existing land use.                               
                                                                               
 Number 252                                                                    
                                                                               
 REPRESENTATIVE KOTT said if a government couldn't afford to take              
 property, it shouldn't.  He was concerned with the anadromous                 
 streams, referring to Montague Island and the ongoing Koncor                  
 operation.  If a buffer on each side of a stream was considered a             
 taking, a decision needed to be made on whether to protect the                
 spawning salmon or render payment for the taking.  Rendering this             
 payment would be an extensive financial proposition for the                   
 government.  He said in striking a balance, the fishing resource              
 would be more consistent with the Constitution, thereby demanding             
 more protection, creating a need for a buffer and requiring                   
 payment, which would drain the state funds.                                   
                                                                               
 Number 279                                                                    
                                                                               
 REPRESENTATIVE KOHRING stated he wasn't sure what kind of balance             
 could be struck.                                                              
                                                                               
 Number 282                                                                    
                                                                               
 REPRESENTATIVE KOTT referred to Mr. Cummings' comment regarding a             
 100 percent probability stating takings and previous takings would            
 fall into this category.                                                      
                                                                               
 Number 293                                                                    
                                                                               
 REPRESENTATIVE ELTON was concerned there was too much focus on the            
 buffer issue.  He believed the government would have to pay twice             
 in some cases.  He was disturbed by the general notion that                   
 government can pay.  He used the example of a small village                   
 choosing to go dry by vote and the government placing a value of              
 $150,000 on the liquor business, there would be a government cost.            
 This cost would be born by individual Alaskans living within the              
 village, making it a significant disincentive to go dry.  If a                
 village chooses not to go dry, the future costs would be high as              
 the government has to cover education, public safety, health and              
 social services and other public services.                                    
                                                                               
 Number 331                                                                    
                                                                               
 REPRESENTATIVE KOHRING said it boiled down to the fundamental                 
 question of who is going to pay, the government or the individual             
 property owner.  Upon an unconstitutional taking of private                   
 property, everyone, constitutionally, has the right to just                   
 compensation.                                                                 
                                                                               
 Number 343                                                                    
                                                                               
 CO-CHAIR IVAN appreciated the committee's interest in addressing HB
 154.  He stated the various state agencies had problems with the              
 current HB 154, but he understood the purpose and intent of the               
 bill.  He requested the bill be further addressed in a subcommittee           
 which would include the bill sponsor and representatives from the             
 state agencies having difficulty in accepting HB 154.  He hoped               
 these individuals would work together to come up with a workable              
 piece of legislation to bring before the committee for further                
 consideration.  He delegated Representative Austerman as Chair of             
 the subcommittee and invited Representatives Elton and Kott to be             
 on the subcommittee.                                                          
                                                                               
 Number 395                                                                    
                                                                               
 REPRESENTATIVE KOHRING expressed his appreciation at the                      
 willingness of the committee to continue working with him on his              
 bill.  He thanked the committee members and all those present and             
 stated he respected everyone's opinions regarding HB 154.  He hoped           
 a compromise could be reached on which everyone could agree.                  
                                                                               
 Number 402                                                                    
                                                                               
 REPRESENTATIVE KOTT also expressed his appreciation of the bill               
 sponsor taking on this difficult issue.  He made a suggestion to              
 the subcommittee chair there be more focus on the elementary issues           
 the Community and Regional Affairs Committee was charged to review.           
 He thought many of the legal issues addressed by testifiers would             
 be better addressed in the next committee of referral, the                    
 Judiciary Committee.  He hoped CRA wouldn't digress from its                  
 responsibilities.                                                             
                                                                               
 Number 413                                                                    
                                                                               
 CO-CHAIR IVAN said his point was well taken.                                  
                                                                               
 Number 414                                                                    
                                                                               
 CO-CHAIR AUSTERMAN said it wasn't his intent to bury the bill and             
 he expressed his willingness to further discuss HB 154.  He was               
 concerned HB 154 didn't breach the issue of too much regulation.              
 ADJOURNMENT                                                                   
                                                                               
 CO-CHAIR IVAN adjourned the House Community and Regional Affairs              
 Committee at 3:45 p.m.                                                        
                                                                               

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