Legislature(1999 - 2000)
02/02/1999 08:05 AM House CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE COMMUNITY AND REGIONAL AFFAIRS
STANDING COMMITTEE
February 2, 1999
8:05 a.m.
MEMBERS PRESENT
Representative Andrew Halcro, Co-Chairman
Representative John Harris, Co-Chairman
Representative Carl Morgan
Representative Lisa Murkowski
Representative Fred Dyson
Representative Reggie Joule
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
*HOUSE BILL NO. 22
"An Act relating to investigations of property by a municipal
assessor or the assessor's agent; and providing for an effective
date."
- HEARD AND HELD
*HOUSE BILL NO. 25
"An Act relating to a municipal river habitat protection tax
credit."
- MOVED HB 25 OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: HB 22
SHORT TITLE: INVESTIGATIONS BY MUNICIPAL ASSESSOR
SPONSOR(S): REPRESENTATIVES(S) OGAN
Jrn-Date Jrn-Page Action
1/19/99 23 (H) PREFILE RELEASED 1/8/99
1/19/99 23 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 23 (H) CRA
2/02/99 (H) CRA AT 8:00 AM CAPITOL 124
BILL: HB 25
SHORT TITLE: RIVER HABITAT PROTECTION TAX CREDIT
SPONSOR(S): REPRESENTATIVES(S) DAVIES
Jrn-Date Jrn-Page Action
1/19/99 24 (H) PREFILE RELEASED 1/8/99
1/19/99 24 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 24 (H) CRA, RESOURCES
2/02/99 (H) CRA AT 8:00 AM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE OGAN
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
Telephone: (907) 465-3878
POSITION STATEMENT: Testified as sponsor of HB 22.
STEVE VAN SANT, State Assessor
Department of Community & Regional Affairs
333 West 4th, Suite 220
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 22.
WAYNE HEARER, Municipal Assessor
Director of Property Appraisal
Municipality of Anchorage
632 West 6th Avenue
Anchorage, Alaska 99519
POSITION STATEMENT: Testified on HB 22.
DAVID GUTTENBERG, Legislative Administrative Assistant
for Representative Davies
Alaska State Legislature
Capitol Building, Room 422
Juneau, Alaska 99801
Telephone: (907) 465-4457
POSITION STATEMENT: Presented the sponsor statement for HB 25.
JOHN MOHRCICH, Employee
Kenai River Center
Kenai Peninsula Borough
1336 Kenai Spur Highway
Soldotna, Alaska 99669
POSITION STATEMENT: Supported HB 25.
ACTION NARRATIVE
TAPE 99-3, SIDE A
Number 001
CO-CHAIRMAN HARRIS called the House Community and Regional Affairs
Standing Committee meeting to order at 8:05 a.m. Members present
at the call to order were Representatives Halcro, Harris, Morgan,
Dyson, Joule and Kookesh. Representative Murkowski arrived at 8:07
a.m.
HB 22 - INVESTIGATIONS BY MUNICIPAL ASSESSOR
Number 018
CO-CHAIRMAN HARRIS announced the first order of business was HOUSE
BILL NO. 22, "An Act relating to investigations of property by a
municipal assessor or the assessor's agent; and providing for an
effective date."
REPRESENTATIVE OGAN, Alaska State Legislature, explained that HB 22
was introduced out of concern of an incident, albeit isolated, that
occurred to a constituent. Representative Ogan noted that the
committee packet contained written testimony from the constituent
involved. The constituent heard someone in his house who turned
out to be the borough tax assessor who was already 10-15 feet
inside of the house with the door closed. Representative Ogan
believed the following provisions in the Alaska Constitution
regarding the right of privacy, Article I, Section 22, searches and
seizures in Article I, Section 14, and due process in Article I,
Section 7, were recognized in HB 22. He reviewed Alaska Statute
(AS) Section 29.45.130, specifically (b) of that section which
reads, "For investigation, the assessor or the assessor's agent may
enter a premise during reasonable hours and may examine property on
the premise." Representative Ogan explained that HB 22 would
require the assessor to gain permission from the possessor of the
property before entering the property. He commented that the
reference to "reasonable hours" may not be considered the same by
all.
Number 134
REPRESENTATIVE KOOKESH asked if the normal process of going through
the channels of the municipal government, such as contacting this
assessor's supervisor or bringing the situation before the borough
assembly, was attempted. Representative Kookesh said that HB 22
seemed far-reaching in response to a single incident.
REPRESENTATIVE OGAN said that Representative Kookesh's point was
well taken, but he viewed his obligation to defend the constitution
and his constituent's rights as a serious responsibility. Any time
the government has leeway, abuses occur. In talking with the local
people, Representative Ogan did not believe this situation would
happen again, but the incident prompted review of the statute which
was cause for concern. Representative Ogan did not believe it to
be good policy to allow the state assessor the authority to have
access to a house whenever he wants.
REPRESENTATIVE MURKOWSKI understood that the assessors observe the
exterior of a property, but not actually come inside the dwelling.
She interpreted the statute language, "enter a premise" as allowing
the assessor to enter the real property, but not into the dwelling.
Is the intent of HB 22 to require permission only when the assessor
wants to enter a dwelling or would permission also be necessary to
come on the real property itself?
Number 200
REPRESENTATIVE OGAN referred to Section 1 of HB 22 where "[A
PREMISE]" was deleted and "real property" is included.
Representative Ogan said that an assessor would be allowed to drive
on the property and look around, but permission from the person in
possession of the property would be required to enter the dwelling.
Representative Ogan noted that there had been concerns that
"possession" was somewhat ambiguous. He suggested that the
language be amended to "actual possession" which is defined in
Black's Law Dictionary as "exists where the thing is in immediate
occupancy and physical control of the party" which Representative
Ogan said could be an owner or renter. Representative Ogan further
suggested that language should be considered that would allow an
assessor to enter when a property is under the possession of a
contractor and is under construction.
REPRESENTATIVE MURKOWSKI asked if the intent was to only require
permission if the assessor wanted to enter a dwelling.
REPRESENTATIVE OGAN replied yes. He envisioned a form that the
assessor would have the owner sign to indicate permission was
granted. This would alleviate later civil liability.
Representative Ogan noted that the assessor can get a court order
to enter a dwelling if so compelled which is specified on page 1,
line 10 of HB 22. Representative Ogan mentioned that assessors
have told him that it is in the favor of the owner to enter the
house because the assessor would take some things for granted if
only looking at the exterior.
Number 284
REPRESENTATIVE DYSON was startled with the statutory language
regarding assessors.
REPRESENTATIVE JOULE asked if there would be a way to address this
isolated problem at the borough level through borough code or
ordinances.
REPRESENTATIVE OGAN said that the borough could pass a code, but
that ignores the legislative responsibility to protect citizens'
rights under the constitution.
REPRESENTATIVE JOULE noted that this issue was similar to the wolf
snare issue where a particular area had a problem that some were
trying to deal with on a statewide level. He indicated that
passage of a law could be avoided, if local areas could deal with
this situation on their own. Representative Joule agreed with
where Representative Ogan was attempting to go.
REPRESENTATIVE OGAN believed that past legislators across the
nation have ignored the constitution, passed laws that are
unconstitutional and let the courts make the decisions.
Representative Ogan said that he takes his oath seriously and wants
to close the loop holes that could result in possible injustice and
abuse by the government. Representative Ogan suspected this
problem to be more widespread than is evident; who wants to make an
issue of it?
Number 351
CO-CHAIRMAN HALCRO explained that in the Municipality of Anchorage
one must receive a Certificate of Occupancy from a building
inspector before moving into a new home. Does that apply in the
Mat-Su Valley?
REPRESENTATIVE OGAN replied no, as with most of the state there are
no building codes nor inspections. Commercial buildings are
reviewed by the state fire inspector. In further response to
Co-Chairman Halcro, Representative Ogan said there is no authority
that approves building plans in Mat-Su or most areas of the state.
REPRESENTATIVE MURKOWSKI asked if the municipal regulations or
borough ordinances had been reviewed with regard to assessors and
their ability to be on property. She wondered if there was a lack
of uniformity within municipal or borough government regarding the
power of the assessors.
Number 391
REPRESENTATIVE OGAN said that he did not do an extensive review of
the authority of municipal assessors because they have broad
authority in the statutes. This legislation would cleanup the
statute and establish the standard.
REPRESENTATIVE MURKOWSKI restated her question. She asked if there
was language in municipal ordinances or regulations that specify
that an assessor shall not enter a dwelling or property without
permission. Is it possible to monitor this on a local level?
REPRESENTATIVE OGAN agreed with Co-Chairman Harris' assessment that
HB 22 only deals with entering the premise. Representative Ogan
read the language on page 1, line 5 which states, "For
investigation, the assessor or the assessor's agent may enter real
property [A PREMISE] during reasonable hours to [AND MAY] examine
visible personal property and the exterior of a dwelling or other
structure on the real property." He said that the assessor must
knock on the door and identify himself as an assessor and receive
permission to enter the house from the owner. Representative Ogan
did not believe that would be an unreasonable policy to impose
statewide whether a borough or municipality already does so or not.
CO-CHAIRMAN HARRIS inquired as to whether mobile homes would be
included in the definition of personal property.
REPRESENTATIVE OGAN read the following definition of personal
property as found in Black's Law Dictionary, "Personal property
includes money, goods, chattels, things in action, evidence of
debt. Personal property is divisible into corporal personal
property and incorporeal personal property."
Number 450
STEVE VAN SANT, State Assessor, Department of Community & Regional
Affairs(DCRA), testified via teleconference. He stated that most
assessors do not have a problem with HB 22 which encompasses what
is typically done. In this particular case in Mat-Su, this was an
isolated incident. Mr. Van Sant did not know of any written
policies, but every assessor has been instructured not to enter a
home unless invited nor should an assessor enter a home if only
children are present. With regard to who is in possession of a
property, there could be some problems. For example, who is in
possession when property is under construction or can an assessor
look around if no one is present. Who should the assessor contact
when inspecting a commercial property? Mr. Van Sant believed that
the case that prompted HB 22 involved miscommunication.
REPRESENTATIVE MURKOWSKI asked if the rule in which assessors ask
permission before entering a property was an unwritten rule or is
it contained in any municipal or borough ordinances.
MR. VAN SANT did not know of any written manuals or policies. As
a former assessor in Anchorage and Mat-Su, Mr. Van Sant said that
all new appraisers are instructed not to enter a premise unless
permission is granted. Mr. Van Sant agreed with Representative
Murkowski that it was an industry practice.
Number 511
CO-CHAIRMAN HALCRO inquired as to who would be liable if an
assessor is in the property and the assessor falls down the stairs
or is bitten by a dog.
MR. VAN SANT did not know. The industry discourages even opening
a door if someone inside says, "Come in" because children could be
home alone. The industry does not want assessors in the house with
underage children.
CO-CHAIRMAN HARRIS noted that he had never heard of any assessor
entering a home in Valdez without being invited. The assessor
would note that he/she could not enter the dwelling, therefore, the
assessment could be higher or lower based on that criteria. Is
that always the case? Co-Chairman Harris characterized HB 22 as
housekeeping.
MR. VAN SANT believed that to be the case. An assessor would
hopefully report a better indication of value if he/she could enter
the dwelling. Mr. Van Sant noted that he had been an assessor for
over 30 years and very rarely is an assessor allowed inside a home.
Number 550
WAYNE HEARER, Municipal Assessor and Director of Property
Appraisal, Municipality of Anchorage, testified via teleconference.
He informed the committee that he had been in the appraisal and
assessment practice in Alaska for nearly 20 years. Mr. Hearer said
that respect for property owners has always been maintained. He
noted that he had worked in this capacity in Kodiak, Kenai, and
Anchorage. In all three municipalities, if no one is home a door
hanger was left requesting contact from the property owner. Mr.
Hearer echoed Mr. Van Sant's comments regarding the industry
practice to not enter a premise without permission.
REPRESENTATIVE MURKOWSKI asked if this legislation was necessary or
helpful in light of the current industry practice.
MR. HEARER said that initially he did not have a problem with HB 22
because it specified how the industry already interprets AS Section
29.45.130(b). Mr. Hearer expressed the need to clarify the
definition of possession and permission.
REPRESENTATIVE OGAN agreed with Co-Chairman Harris'
characterization of HB 22 as a housekeeping measure. This
legislation simply clarifies the existing unwritten policy of the
assessors. Representative Ogan believed that the current statute
violates the constitutional principle of right to privacy.
REPRESENTATIVE OGAN recommended the following, page 1, line 10
insert "actual" before "possession" and on line 9, insert "written"
before "permission". Representative Ogan further recommended
including language that would "exempt buildings under construction
and possession of a general contractor" which would allow assessors
to enter building under construction without any impediment. In
response to Co-Chairman Harris, Representative Ogan did not know
exactly where to insert the language and thought it may be for the
committee to discuss.
Number 607
REPRESENTATIVE KOOKESH expressed concern with the procedure to
attain written permission. Will a written form be required? If
written permission is required a burden is created for someone.
REPRESENTATIVE OGAN foresaw an assessor getting a form initialed to
enter a dwelling before entering. Placing this in statute could
expose municipalities to liability if there is a violation with
civil action. This type of procedure is required of Fish &
Wildlife Protection officers for search and seizures.
REPRESENTATIVE DYSON asked if HB 22 had a Judiciary referral.
REPRESENTATIVE OGAN replied no.
REPRESENTATIVE DYSON said that it seemed the committee could pass
HB 22 with individual recommendations, deal with changes in the
committee, or hold the bill to Thursday when the sponsor could come
back with the changes incorporated in a committee substitute. He
inquired as to the preference of Representative Ogan.
REPRESENTATIVE OGAN said that he would be happy to accommodate the
Chair's wishes.
REPRESENTATIVE JOULE asked if HB 22 would necessitate the property
owner physically getting up and answering the door. Representative
Joule said that he typically says, "Come in."
REPRESENTATIVE OGAN said that if he were the assessor, he would
open the door and identify himself as the state assessor and ask if
the owner would still allow him to enter the premise.
Number 657
CO-CHAIRMAN HARRIS said that HB 22 would be held to Thursday's
meeting so that Representative Ogan could work on this.
Co-Chairman Harris asked Mr. Van Sant if he believed that this
would be an unfair burden on the state or local assessor.
MR. VAN SANT believed that the written permission would be
burdensome, seem to inhibit the process and perhaps intimidate
people. Assessors are not searching for anything. To obtain
permission is not a problem and is already practiced. Mr. Van Sant
believed that written permission could result in inequities in
assessments. With regard to mobile homes, mobile homes are
considered personal property by statute unless classified otherwise
by ordinance. Mr. Van Sant said that he would be happy to work
with the sponsor.
CO-CHAIRMAN HALCRO agreed with the intent of the legislation, but
written permission would seem problematic.
REPRESENTATIVE OGAN inquired as to if the assessors had an opinion
on including the exemption for construction sites.
MR. HEARER did not see a problem with inclusion of that exemption.
Mr. Hearer also offered to work with the sponsor.
HB 25 - RIVER HABITAT PROTECTION TAX CREDIT
TAPE 99-3, SIDE B
Number 001
CO-CHAIRMAN HARRIS announced the next order of business to be
HOUSE BILL NO. 25, "An Act relating to a municipal river habitat
protection tax credit."
DAVID GUTTENBERG, Legislative Administrative Assistant for
Representative Davies, Alaska State Legislature, read the following
sponsor statement into the record,
This bill, recognizing the need for habitat protection along
rivers within a municipality, is a land management tool that
provides the option of protecting fish habitat along the
rivers by offering a tax credit to property owners along
those waterways. Note that this is not an unfunded mandate.
It is entirely optional at the local government level.
In 1995 the nineteenth legislature recognized the importance
of this kind of protection by granting similar legislation
along the Kenai River; this bill would simply extend that
option to municipalities along other rivers. There are few,
if any, other rivers in the state with the fishing pressure
that exist along the Kenai. However as state population and
tourism continue to grow, many other circumstances will
arise where a municipality may wish to encourage habitat
protection. This bill will provide one more option for
them to consider.
Mr. Guttenberg asked if there were any questions.
CO-CHAIRMAN HARRIS asked how this was working from the point of
view of the Kenai Borough.
MR. GUTTENBERG informed the committee that to date there have been
63 tax credits given to property owners. Mr Guttenberg said that
he had not made contact with anyone yet.
CO-CHAIRMAN HARRIS inquired as to why this was being brought up;
are other municipalities interested in taking advantage of such a
program.
MR. GUTTENBERG explained that the Fairbanks Riverfront Commission
deals with the Chena and Tanana Rivers. Some people have expressed
interest in having this option. The Fairbanks Riverfront
Commission does not have authority, but can offer recommendations
to the borough; the assembly would make the decision.
Number 060
CO-CHAIRMAN HALCRO inquired as to the procedure to apply for this
tax credit.
MR. GUTTENBERG explained that HB 25 provides the municipality with
the option to create the borough procedure for application of this
tax credit.
REPRESENTATIVE MURKOWSKI asked if approval by the commissioner of
fish & game was required.
MR. GUTTENBERG replied no, the Fairbanks Riverfront Commission is
a borough commission that can offer recommendations and planning,
but does not have any authority. The borough assembly and planning
commission would need to deal with this tax credit. Mr. Guttenberg
noted that the process in each borough or city is different.
Number 093
REPRESENTATIVE MURKOWSKI referred to AS 29.45.046(d) which
specifies, "Before an ordinance is adopted under (a) of this
section, it must be approved by the commissioner of fish and game."
Subsection (a) is what is being amended by HB 25. Procedurally it
would be different because the Fairbanks Riverfront Commission
would express interest and discuss this option with the Fairbanks
Northstar Borough, but ultimately the commissioner of fish and game
would have to provide approval.
MR. GUTTENBERG agreed. In response to Representative Murkowski's
inquiry regarding how the commissioner of fish and game was
involved, Mr. Guttenberg indicated that this could have been a
concern for offering protection for a site that did not require
habitat protection under the original legislation of 1995. Mr.
Guttenberg was not sure.
In response to Co-Chairman Harris, Mr. Guttenberg explained that
the original legislation was site specific because at the end of
the session there was an attempt to amend the legislation to
include all rivers. However, it was more important to move the
legislation through versus returning the legislation to committee.
Number 136
JOHN MOHRCICH, Employee of the Kenai River Center, Kenai Peninsula
Borough, testified via teleconference. He explained that his
position was responsible for reviewing and issuing permits for
habitat protection projects on the Kenai River. Mr. Mohrcich said
that he also reviews and issues the tax credit program.
CO-CHAIRMAN HARRIS asked Mr. Mohrcich if he was in Kenai or working
in his present position when the original legislation was enacted.
MR. MOHRCICH informed the committee that he was working for the
Kenai Peninsula Borough, but not in his current position with the
Kenai River Center. In further response to Co-Chairman Harris, Mr.
Mohrcich indicated agreement with Mr. Guttenberg's explanation as
to why the original legislation was site specific. At the time of
the original legislation, Kenai Mayor Don Gillman and Governor
Knowles were pushing to establish the Kenai River Center and there
was concern the process move forward which probably attributed to
the legislation being site specific.
REPRESENTATIVE MURKOWSKI asked Mr. Mohrcich to comment on how this
is working on the Kenai.
MR. MOHRCICH stated that the Kenai Peninsula Borough supports
HB 25. The borough believes it beneficial to encourage the
protection of the rivers and tributaries through this tax program.
"Habitat protection and restoration projects result in preservation
of our fisheries and our Alaska watershed." Mr. Mohrcich
emphasized that without the tax credit, those building on the
riverfront would bear the entire expense of protecting the river
while everyone would benefit. He noted that about 15 percent of
the land owners that do a habitat project on the Kenai River apply
for this tax credit. Mr. Mohrcich believed this illustrated his
opinion that these land owners had a desire to take care of their
own property and that such people would often proceed with the
habitat project even without the tax credit. Mr. Mohrcich stated
that the experience has been positive in the Kenai Peninsula
Borough. The ordinance establishing the tax credit included a
sunset clause for the end of December 1998 which the assembly
extended the tax credit program through the year 2001. During that
process, no one spoke against the tax credit program. He noted
that he had information regarding the number of applications and
the amount the tax credit has saved property owners.
Number 236
CO-CHAIRMAN HALCRO inquired as to the qualifications necessary to
be approved for the creation of a fish habitat protection project
on a property.
MR. MOHRCICH explained that basically a project would need to
reduce erosion, protect the riverbanks and the banks along the
tributaries which would include elevated break walls, wooden
boardwalks or stairs, floating docks, and the cabling of spruce
trees along riverbanks. Mr. Mohrcich said that these are examples
of the projects along the Kenai River that are qualifying for the
tax credit.
REPRESENTATIVE MURKOWSKI referred to AS 29.45.046(d) which she
interpreted as saying that a municipality would propose an
ordinance to qualify for the credit and the commissioner of fish
and game will reply in writing whether the proposed ordinance is
approved or disapproved. Representative Murkowski asked if the
Department of Fish & Game had been contacted to determine if the
department was supportive or not.
MR. GUTTENBERG said that he had not heard from the Department of
Fish & Game, but that he would make some inquiries.
REPRESENTATIVE JOULE pointed out that HB 25 has a House Resources
referral where the issue regarding the Department of Fish & Game
could be taken up.
CO-CHAIRMAN HALCRO noted that there is a zero fiscal note from the
DCRA and there is no fiscal note from the Department of Fish &
Game; does that happen later in the process?
MR. GUTTENBERG believed that it could occur in the next committee
of referral or a fiscal note from the Department of Fish & Game
could be solicited. Mr. Guttenberg understood that since HB 25
requires no state action, except the comments regarding the
Department of Fish & Game, there would probably be little or no
fiscal impact.
Number 299
CO-CHAIRMAN HALCRO moved to report HB 25 out of committee with
individual recommendations and the accompanying zero fiscal note
from DCRA. CO-CHAIRMAN HALCRO noted the lack of a fiscal note from
the Department of Fish & Game. There being no objection, it was so
ordered.
ADJOURNMENT
There being no further business before the committee, the House
Community & Regional Affairs Committee meeting was adjourned at
9:07 a.m.
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