Legislature(2005 - 2006)HOUSE FINANCE 519
02/09/2006 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB274 | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 274 | TELECONFERENCED | |
| + | HB 318 | TELECONFERENCED | |
| + | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
February 9, 2006
1:44 P.M.
CALL TO ORDER
Co-Chair Meyer called the House Finance Committee meeting
to order at 1:44:39 PM.
MEMBERS PRESENT
Representative Kevin Meyer, Co-Chair
Representative Bill Stoltze, Vice-Chair
Representative Richard Foster
Representative Mike Hawker
Representative Jim Holm
Representative Reggie Joule
Representative Mike Kelly
Representative Beth Kerttula
Representative Carl Moses
Representative Bruce Weyhrauch
MEMBERS ABSENT
Representative Mike Chenault, Co-Chair
ALSO PRESENT
Representative Lesil McGuire; Juli Lucky, Staff,
Representative Mike Hawker; Craig Johnson, Staff,
Representative Lesil McGuire; Peter Putzier, Assistant
Attorney General, Department of Law; Sarah Gilbertson,
Legislative Liaison, Department of Fish and Game; Tim
Lamkin, Staff, Representative Jim Holm; Dave Feeken,
Broker, Alaska Association of Realtors, Kenai
PRESENT VIA TELECONFERENCE
Lisa Rogers, Certified Public Accountant (CPA), Alaska
Society of CPA's (ASCPA), Anchorage; Don Rulien, Chairman,
Legislative Committee, ASPCA, Anchorage; Roblyn Weibe,
President, Society of Independent Accountants (ASIA),
Anchorage; John Baker, Attorney, Department of Law,
representing the Department of Fish and Game and the
Department of Natural Resources; Ron Estrada, Property
Owner, Fairbanks; Rod Arno, Director, Alaska Outdoor
Council (AOC), Anchorage
SUMMARY
HB 274 An Act relating to the practice of accounting;
and providing for an effective date.
CS HB 274 (FIN) was reported out of Committee
with a "do pass" recommendation and with a zero
note by the Department of Commerce, Community &
Economic Development.
HB 318 An Act limiting the exercise of eminent domain.
CS HB 318 (FIN) was reported out of Committee
with "individual recommendations" and with zero
note #1 by the Department of Commerce, Community
& Economic Development, zero note #2 by the
Department of Environmental Conservation,
indeterminate note #3 by the Department of Law,
indeterminate note #4 by the Department of
Natural Resources and indeterminate note #5 by
the Department of Transportation & Public
Facilities.
HB 334 An Act relating to an exemption from and deferral
of municipal property taxes for certain types of
deteriorated property.
HB 334 was SCHEDULED but not HEARD.
1:45:29 PM
HOUSE BILL NO. 274
An Act relating to the practice of accounting;
and providing for an effective date.
Vice Chair Stoltze MOVED to ADOPT work draft #24-LS0176\C,
Bannister, 2/8/06, as the version of the legislation before
the Committee. (Copy on File). Representative Weyhrauch
OBJECTED.
1:46:44 PM
Representative Weyhrauch WITHDREW his OBJECTION in order to
hear the proposed changes brought forward by Representative
Hawker. There being NO further OBJECTION, the work draft
was adopted.
REPRESENTATIVE HAWKER, SPONSOR, explained that the
committee substitute resulted from a review by the Division
of Occupational Licensing. The Division made technical
corrections providing the version currently before the
Committee.
Representative Hawker spoke to the basis of the bill, which
updates the Alaska statutory framework regulating the
professional practices of accounting. The bill moves the
statues toward the standardized structure recommended in
the model of the National Uniform Accountancy Act developed
by the American Institute of Certified Public Accountants
(AICPA).
Representative Hawker advised that adoption of the changes
would:
• Facilitate the practice of Alaska public accountants
in other jurisdictions,
• Ensure that qualifications of non-resident public
accountants practicing in Alaska, and
• Aid conduct of interstate commerce.
The changes are important to keep Alaska competitive in the
international business environment and provide the greatest
possible consumer protection for the public relying upon
the work performed by Certified Public Accountants (CPA).
Representative Hawker highlighted what the bill would
accomplish:
• Increases the supervision and regulation of public
accountants who provide auditing services;
• Establishes a mechanism to grant temporary practice
privileges to public accountants and public accounting
firms licensed in other states;
• Expands peer quality review requirements; and
• Ensures that public accountants meet appropriate
education and experience standards.
1:53:32 PM
Representative Hawker noted that there had been a lengthy
discussion in the House Labor and Commerce Committee
regarding concerns by non-licensed accountants. He pointed
out the "do pass" recommendations from that Committee.
1:54:08 PM
Vice Chair Stoltze inquired if there were "issues" for
CPA's regarding license and non-licensure. Representative
Hawker addressed the difference between a licensed
accountant and a non-licensed one. The key points for
obtaining CPA licensing are:
• A minimum education requirements with a degree in
accounting,
• Passing the uniform certified public accountant
certification, and
• Applying to the Board to practice as a CPA.
To actually perform audits requires further experience;
there is an apprenticeship appointment. There are non-
licensed record keepers. Currently, there is little
regulation of the work product. Representative Hawker
pointed out that Alaska has some of the "least stringent
regulations" of any state in the Nation, which is of
concern to the licensed accounting profession. The bill
would not impinge any non-certified accountants.
1:58:13 PM
Vice Chair Stoltze asked the percentage of people that
initially, fail the CPA examine. Representative Hawker
thought that those passing the test the first time fell
into the 25% range. He acknowledged that it is a difficult
test to pass, adding that his class set a national pass
record at 67% graduates succeeding.
1:59:01 PM
Representative Holm inquired whose responsibility it was to
regulate the service.
1:59:35 PM
Representative Hawker responded that was a function of the
State's Board of Accountancy. The Governor, as an
independent body, appoints that Board. He added that there
are stipulations regarding the composition of the board.
2:00:21 PM
Representative Weyhrauch inquired if the legislation would
affect "bookkeepers". Representative Hawker responded it
would not.
2:01:02 PM
Representative Weyhrauch noted that there are people who
advertise themselves as a bookkeeping service.
Representative Hawker stated that they would not be able to
express or imply that they have special knowledge or
competence issuing any report on the books. There is a
100% exclusion on bookkeeping. The substance on the
bookkeeping work is where it crosses the professional line.
2:02:02 PM
LISA ROGERS, (TESTIFIED VIA TELECONFERENCE), CERTIFIED
PUBLIC ACCOUNTANT (CPA), ALASKA SOCIETY OF CPA'S (ASCPA),
ANCHORAGE, testified that the legislation provides a much-
needed update and revision to the statutes governing the
practice of public accounting. The National Association of
the State Board of Accountancy (NASBA) and the American
Institute of Institute of Certified Public Accountants
(AICPA) drafted the Uniform Accountancy Act. She stated
that both organizations participated in drafting and
reviewing the proposed legislation. She urged support of
HB 274.
2:03:38 PM
Representative Hawker applauded Ms. Rogers for the work she
provided on the drafting process.
2:04:10 PM
DON RULIEN, (TESTIFIED VIA TELECONFERENCE), CHAIRMAN,
CERTIFIED PUBLIC ACCOUNTANT (CPA), LEGISLATIVE COMMITTEE,
ALASKA SOCIETY OF CPA'S (ASPCA), ANCHORAGE, pointed out
that the policy by which an accountant becomes a CPA is not
being changed. The intent was to address language and make
it more uniform so that accountants can practice in other
states without a lot of trouble. Mr. Rulien noted
statewide support of the legislation. He requested that
the legislation move from Committee as soon as possible.
2:05:54 PM
ROBLYN WEIBE, (TESTIFIED VIA TELECONFERENCE), PRESIDENT,
ALASKA SOCIETY OF INDEPENDENT ACCOUNTANTS (ASIA) NORTHERN
CHAPTER, ANCHORAGE, voiced appreciation for the proposed
legislation and urged its' consideration on behalf of ASIA.
She noted that ASIA helps to maintain a professional
expertise amongst accountants.
2:08:08 PM
Representative Kerttula noticed that the reprocosity
requirement was being changed from five years to four
years; she asked if that was the national standard.
Representative Hawker stated it was.
Representative Hawker MOVED to ADOPT Amendment #1. Co-
Chair Meyer OBJECTED for purposes of discussion.
Representative Hawker explained that the amendment was
brought forward by Department of Law for a language clean
up and does not make substantive changes.
Page 10: Delete (b) and insert (c)
Page 15, Line 6: Delete "required by" and
Insert "under"
Page 17, Line 21: Insert "[or suspension]"
2:10:25 PM
Co-Chair Meyer WITHDREW his OBJECTION. There being NO
further OBJECTION, Amendment #1 was adopted.
2:10:46 PM
Vice Chair Stoltze MOVED to REPORT CS HB 274 (FIN) out of
Committee with individual recommendations and with the
accompanying zero note. There being NO OBJECTION, it was
so ordered.
CS HB 274 (FIN) was reported out of Committee with a "do
pass" recommendation and with a zero note by the Department
of Commerce, Community & Economic Development.
2:11:20 PM
AT EASE: 2:11:36 PM
RECONVENE: 2:17:11 PM
HOUSE BILL NO. 318
An Act limiting the exercise of eminent domain.
REPRESENTATIVE LESIL MCGUIRE, SPONSOR, stated that HB 318
asks for two policy decisions.
• The first is whether or not it is appropriate to take
a person's private property for economic development;
• The second is whether it is appropriate to take all or
part of one's primary residence for recreational
opportunities of another.
The legislation is not intended to prohibit the legitimate
use of eminent domain; it limits use in those two policy
areas.
A recent United States Supreme Court ruling that the
eminent domain powers of a government could be used to
seize private land for economic development purposes has
struck a vital blow to private property rights in the
country. Although Kelo versus New London is a Connecticut
case, the implications were broad. HB 318 clarifies the
property rights of Alaskans and prevents a repeat of what
transpired in Connecticut.
Representative McGuire continued, HB 318 prohibits the use
of eminent domain for economic gain and clarifies that the
government be prohibited from taking all or part of a
primary residence through eminent domain so that others may
have a recreational opportunity. Alaska has thousands of
acres of land and it is unacceptable to seize someone's
home for recreational purposes.
Representative McGuire noted that there are amendments that
deal with the second half of the bill, indicating that
amendments were offered in the House Judiciary Committee
proposing elimination of any recreational use.
2:23:44 PM
Representative Joule noted the choice of words used by the
sponsor and asked if "private residents" was different than
"private property". Representative McGuire said they are
different. She commented there are amendments coming that
could change that policy. It was decided to "take the
middle ground", which would keep the reference to
recreational uses and narrow it to a person's private
residence. She acknowledged that she had chosen those
words "carefully" to alert members of the public policy
decision made in the prior Committee.
2:25:43 PM
Vice Chair Stoltze mentioned that he had received many
phone calls referencing Representative Gruenberg's
amendment. He asked for information regarding that
amendment and if it had been incorporated.
2:26:24 PM
Representative McGuire stated that in the end,
Representative Gruenberg choose to withdraw his amendment
(Amendment #5). It would have allowed for local government
bodies to have the governmental power to go "around the
bill", which she felt would "gut" it. Representative
McGuire had objected to that and emphasized, she wanted
clear public policy. She understood there would be
arguments to reconsider that decision.
2:27:39 PM
Vice Chair Stoltze pointed out that another state entity
has eminent domain authority the Alaska Railroad. They
have never exercised that right to date. He asked if there
had been discussion in the House Judiciary Committee
regarding the Alaska Railroad.
Representative McGuire replied that they did not sign up
for discussion in that Committee. The bill does not
profoundly change eminent domain policy enacted on the
books, but rather makes it clear that from private-to-
private how it will be. The Committee chose to continue on
the same eminent domain powers, currently in Statute and
the exemptions follow that pattern.
2:29:39 PM
Vice Chair Stoltze interjected that he was referring to the
Alaska Railroad real estate. He asked if they would be
limited in using their eminent domain powers for building
something like a hotel.
2:30:13 PM
PETER PUTZIER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW & DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES,
requested the question be restated.
Representative McGuire interjected that the Alaska Railroad
would be prohibited from taking private property or
residence for building a hotel or further real estate
projects.
2:31:43 PM
Vice Chair Stoltze thought it would be "one government
entity to another". Representative McGuire interjected
that the bill only changes policy with respect to a
governmental authorities ability to transfer private
property to another private entity through eminent domain.
That being said, in that particular project, there is a mix
of land. In the case of the private property taken for
development of the hotel, the bill clearly prohibits that,
however, public land is different. She admitted that it is
complex because of the existing law and statute.
2:33:37 PM
Representative Kerttula asked about the exceptions listed
in Section 3 and referenced Page 4, Sub-section (3), which
allows an exemption for private-to-private extraction use
of resources. She asked if that language existed in
current law and about the "private way of necessity".
Mr. Putzier advised that the intent was to address a
specific issue, Article 8, Section 18, of the Alaska
Constitution. The language in that was quoted, as it was
consistent with the bill's sponsor's intent. They did not
intend to imply that they were attempting to change Article
8.
2:35:29 PM
Representative Kerttula asked if Section 8 was dealing with
private-to-private, while condemning land development. Mr.
Putzier understood that was correct.
2:36:03 PM
Representative Kerttula asked for an example on how
Subsection 3 would work. Mr. Putzier explained that
situation could address natural resource development. The
provision could be used as a mechanism to access oil.
2:36:52 PM
Representative Kerttula discussed that if the State already
has the language indicated in Section 8 of the
Constitution, it might not need to be restated in the
legislation. Mr. Putzier responded that the legislation
was not intended to create any ambiguity regarding the
impact of Article 8, Section 8. The opinion was that it
would be better to address it specifically than to leave
any ambiguity.
2:37:39 PM
Representative Weyhrauch referenced Page 4, Section E,
which describes that the power of eminent domain should not
be exercised within 250 linear feet of a landowner's
personal residence. He questioned if the language should
be further clarified, as it currently appears to be a
blanket prohibition. Mr. Putzier stated it had been
addressed on Page 3, D(1).
2:39:07 PM
Representative Weyhrauch pointed out that it was a separate
section and that it should be clarified. Representative
McGuire agreed.
2:39:28 PM
Representative Weyhrauch asked if the bill prevents a
public entity taking private property for developing a
public recreational facility. Representative McGuire
stated that the bill does prohibit a public entity taking
private property to develop a public recreational facility
if it involves taking someone's private residence.
Representative Weyhrauch thought a situation could happen
like in some cartoon, with proposing a development of
shops, etc., amongst a personal and dilapidated residence.
He worried about that.
Representative McGuire stated that was "precisely" what the
bill was addressing. She felt strongly that one of the
fundamental rights of an American and an Alaskan was the
right to own private property.
• To determine a better use of land, should the
amendment pass, there could be a provision in the
recreational and economic development area to
negotiate with the landowner.
• Secondly, there is another "out" on Page 4 Line 9,
which allows the Legislature by law to transfer
property.
She indicated she was compelled to add that language to
provide an escape valve and thought it could occur in an
extreme circumstance.
2:43:36 PM
Representative Weyhrauch understood that in the Kelo case,
a private nonprofit corporation was established to develop
an area that was deemed to have economic plight. Property
was transferred for the development of a shopping mall.
That private property was taken for purposes beyond a
shopping mall. Mr. Putzier replied that the Connecticut
Legislature authorized the entity to study and make
recommendations for development projects, which involved
the doctrine of economic plight.
2:44:52 PM
Representative Hawker pointed out that the House Finance
Committee has traditionally stripped legislative intent
language from bills.
2:45:40 PM
CRAIG JOHNSON, STAFF, REPRESENTATIVE LESIL MCGUIRE,
explained that eminent domain is a little difference than
most statutes passed. Eminent domain is designed to be a
Court issue and is a Court proceeding. The intent language
was added in order to indicate that the policy will be
determined by the Legislature. It should not be the policy
of the judge or the Court. The language clearly spells out
that intent and is why it was included. The bill will not
live or die by its' intent but it does clarify what is
meant. He recommended that the language remain in the
bill.
2:47:10 PM
Representative Hawker concurred. He asked if the sponsor
thought the intent language went far enough.
Representative McGuire said she was satisfied as the
language summarizes the most important points.
2:48:00 PM
Representative Hawker asked if the language could possibly
create too narrow of an interpretation. Representative
McGuire replied that a Court would look at the plain
language of the Statute. She reiterated that the bill had
been through many drafts and that she thought it currently
has the right balance.
2:49:13 PM
Representative Weyhrauch asked if the sponsor would support
the amendment discussed on Section (e). Mr. Johnson
thought it would be appropriate and would strengthen the
bill.
2:50:24 PM
DAVE FEEKEN, BROKER, ALASKA ASSOCIATION OF REALTORS, KENAI,
testified that the legislation is a big issue and part of
the national association's agenda. He noted that
currently, the Association of Realtors are in the process
of helping thirty-eight states review their eminent domain
laws. He noted the three primary issues:
• Concrete definition of public use;
• Concrete definition of eminent domain; and
• Move any issue of eminent domain to the level of
elected officials
Mr. Feeken pointed out that in national surveys, 97%
indicated they are opposed to what happened in Connecticut.
Currently, there are approximately 10,000 eminent domain
cases in the United States at this time.
Mr. Feeken testified that the Alaska Realtors support
approximately 90% of HB 318. One of the major issues is
that of recreational property. He pointed out that less
than 1% of Alaska is in private hands. The issue is that
25%-35% of the real estate industry is second homes. He
referenced Page 4, Subsection ©, recommending that the
concern of the realtors could be solved by deleting that
Section. He estimated that 40% of the 1% is probably
recreational property in Alaska. Alaska is a growing State
and there are many people with second homes.
2:55:08 PM
Mr. Feeken discussed property on the Kenai River and
cautioned legislators to be careful when dealing with
public recreation access. That addresses a person's
quality of life and the ability to use their private
property; it could dramatically decrease the value of their
properties. He emphasized that the word "recreation" means
something different throughout the State and for each
person.
2:56:55 PM
Co-Chair Meyer inquired if the issue arose in the House
Judiciary Committee. Mr. Feeken did not know as he was
out of town at that time.
2:57:07 PM
RON ESTRADA, (TESTIFIED VIA TELECONFERENCE), PROPERTY
OWNER, FAIRBANKS, explained a situation that threatened his
property in Fairbanks. He related financial concerns as
the City of Fairbanks had offered him only one-quarter of
what he had invested in his home and property. He
testified in favor of HB 318.
2:59:44 PM
Representative Holm thanked Mr. Estrada for testifying. He
inquired if there was an appeals process available. Mr.
Estrada did not know of one.
3:00:32 PM
ROD ARNO, (TESTIFIED VIA TELECONFERENCE), EXECUTIVE
DIRECTOR, ALASKA OUTDOOR COUNCIL (AOC), ANCHORAGE,
addressed concerns in accessing public lands prior to
statehood. AOC is worried with areas such as in the Mat-Su
Borough, where developed management plans have the
authority to restrict access to public waters. He spoke in
support of Amendment #1 and HB 318.
3:02:28 PM
Representative Joule asked if there was an example of an
individual trying to get access to public waters. He noted
concern if it would relate to Native Corporation or Native
allotment land.
SARAH GILBERTSON, LEGISLATIVE LIAISON, DEPARTMENT OF FISH
AND GAME, JUNEAU, believed that Mr. Arno was referencing
private lands and some borough management plans, both of
which are prohibiting public access to lakes in the Mat-Su.
She acknowledged that there have been problems with O'Brien
Creek at Chitna.
Representative Joule thought that would have a "general
application", however, would be intended for a specific
area. Ms. Gilbertson said yes.
3:05:17 PM
Representative Holm MOVED to ADOPT the New New Amendment
#1. Representative Kerttula OBJECTED for discussion
purposes.
NEW NEW AMENDMENT #1
Page 5, Line 6: Delete "natural resources area,"
Page 5, Line 7: Delete "access to a wilderness area,"
Page 5, Line 8: Delete "facility, personal use fishery"
Insert "harbor"
Page 5, Line 28: Delete "and"
Page 5, Line 30, following "AS 41.21": Insert
"; and (ix) a path, trail, road, or site for
which no reasonable alternative exists and, which
is necessary to preserve or establish public
access to publicly owned land or water, if the
use of the path, trail, road, or site itself is
for transportation to or to facilitate use of
publicly owned land or water rather than
primarily for recreation."
Mr. Johnson stated that the sponsor had no problems with
the amendment.
3:06:46 PM
Ms. Gilbertson related a story about the Alaska National
Interest Lands Conservation Act (ANILCA), which goes to
great lengths to maintain access to lands and waters in
Alaska. The amendment is about maintaining, preserving and
establishing the necessary access to public land and
waters. The amendment would maintain the State's current
ability to use eminent domain under narrow circumstances.
Representative Kerttula questioned if "we are out of the
area of private, private" and if the legislation would
expand the State's authority of eminent domain. Ms.
Gilbertson related that the purpose of the amendment
clarifies that the State's authority of eminent domain
cannot be used for recreational trails.
JOHN BAKER, (TESTIFIED VIA TELECONFERENCE), ATTORNEY,
DEPARTMENT OF LAW, REPRESENTING THE DEPARTMENT OF FISH AND
GAME, & THE DEPARTMENT OF NATURAL RESOURCES, spoke to
Representative Kerttula's question noting that the
amendment does not speak to a "private - private transfer".
When there is literally no reasonable alternative, the
State was attempting to preserve access for the public, the
land taken could not be used for recreational purposes.
Representative Kerttula questioned if Amendment #1 adds
language not in current law. Mr. Baker advised that the
amendment is designed to provide a narrow exception to the
new restriction on the use of eminent domain affected by
Section E, Page 4, Line 10. Representative Kerttula
reiterated, if the change would take the State back to what
we currently have. Mr. Baker clarified that it will narrow
the restriction and added that the amendment does not
extend any powers of eminent domain.
3:12:54 PM
Mr. Johnson interjected that the bill would narrow what is
currently in place. It is not the intent of the bill to
restrict any existing policy on eminent domain.
Representative Kerttula summarized her understanding of the
bill, which takes away the right-of-access and then
attempts to place the access back in through Amendment #1.
She questioned whether the bill reaches further than what
is currently in statute. Mr. Baker agreed it does.
Representative Kerttula referred to a dip-net case and
asked if the proposed bill would have changed that outcome.
Mr. Baker brought up another aspect of eminent domain,
stating that it would still remain the burden of the State
to make a finding that is necessary to take the land. The
bill would not change the burden of the State regarding
eminent domain.
Representative Kerttula commented that was because they
would have to prove the public use & purpose. Mr. Baker
agreed.
Representative Kerttula WITHDREW her OBJECTION to the New,
New Amendment #1. There being NO further OBJECTION, it was
adopted.
3:16:12 PM
Representative Holm MOVED to ADOPT Amendment #2, #24-
LS1083\S.3, Bullock, 2/9/06. (Copy on File). Co-Chair
Meyer OBJECTED for discussion purposes.
Representative Holm explained that Amendment #2 provides
technical corrections.
AMENDMENT #2
Page 1, Line 14: Delete "primary"
Insert "personal"
Page 2, Line 11: Delete "(d), (e), and (f)"
Insert (d) and (e)
Page 4, Line 12: Delete "primary"
Co-Chair Meyer WITHDREW his OBJECTION. Representative
Kerttula OBJECTED and asked if the language would affect
any personal property.
Mr. Johnson referred Representative Kerttula to the
definition section where it is defined as "personal
dwelling".
3:17:52 PM
Representative Hawker asked Mr. Johnson to address the
realtor's desire to include definition of personal
property. Mr. Johnson responded that the sponsor's policy
decision was that a persons land was their home. The
legislation was primarily written to protect someone's
home. He said that the bill has become a compromise.
Representative Hawker concurred with the sponsor's attempt.
Representative Kerttula WITHDREW her OBJECTION. There
being NO further OBJECTION, Amendment #2 was adopted.
3:20:58 PM
Representative Holm MOVED to ADOPT Amendment #3, #24-
LS1083\S.1, Bullock, 2/9/06. (Copy on File). Co-Chair
Meyer OBJECTED.
Representative Holm explained Amendment #3 would change the
word "law" and replace it with "statute" in Section #4.
Mr. Putzier addressed Amendment #3. The Department of Law
has not had an opportunity to examine the amendment. He
asked to have a little time to verify that the amendment
would not restrict the practice of eminent domain. He
stated that the Administration could not take a position at
present time.
Representative Hawker asked if the language would exclude
ordinances and if that would be of consequence.
Representative Holm replied that he could not answer that.
3:23:09 PM
Mr. Baker agreed with Mr. Putzier, since he had not had an
opportunity to look at the amendment.
TIM LAMKIN, STAFF, REPRESENTATIVE JIM HOLM, noted that the
amendment was offered in light of potential ambiguity of
the Legislative Branch determining the definition for
public use as opposed to a public agency or regulation and
in the absence of a statute to make that definition.
3:24:25 PM
Representative Hawker agreed, stating that he did not like
law imposed by regulation. He worried that the change
could override the Constitution or other legitimate law
bodies. He recommended that the amendment be further
clarified.
Representative Holm agreed and indicated his intent was to
make the language a more narrow application. If the
language does create possible ambiguity or remove any
capabilities, then he would not move it.
Co-Chair Meyer asked if the Department of Law could provide
an answer by Monday.
3:26:24 PM
Representative Weyhrauch suggested it be discussed in the
context of statute and how it would affect case law. He
thought it could be legislative action and that the
"statute" was clear that a Legislative passed bill and
"regulation" indicates administrative action.
Representative Holm clarified it was his intent for it to
be statute and not regulation. He did not know if the
language of the amendment was the correct way to present
it.
3:27:27 PM
Representative Weyhrauch asked if Representative Holm meant
"statute" passed by Legislature not the Executive Branch.
Representative Holm said he did. Co-Chair Meyer inquired
if that could be accomplished by a minor change made to the
amendment. Representative Weyhrauch did not think so.
3:27:48 PM
Representative Holm inquired if the intent was to pass the
legislation from Committee at this time. Co-Chair Meyer
replied it was.
3:28:13 PM
Representative Weyhrauch stated that he could adjust the
amendment conceptually. Co-Chair Meyer voiced concern with
the ambiguity of Amendment #3. He wanted to guarantee that
it was clear.
Representative Holm WITHDREW Amendment #3 and said it could
be offered on the House Floor. Mr. Johnson noted that the
sponsor would support that.
3:29:22 PM
Representative Holm MOVED to ADOPT Amendment #4, #24-
LS1083\S.4, Bullock, 2/9/06. (Copy on File). Co-Chair
Meyer OBJECTED.
AMENTMENT #4
Page 1, line 14, following "residence":
Insert "or a landowner's small business"
Page 4, line 12, following "residence":
Insert ", the landowner's small business, "
Page 4, line 14, following "residence":
Insert "or a landowner's small business"
Page 5, line 30, following "AS 41.21":
Insert "; (6) "small business" means a structure that
is the primary location of a business that
(A) employs fewer than 26 individuals;
(B) has been located on the land that is the
subject of the eminent domain proceeding for not
less than one year; and
(C) may not have been constructed, placed, or
occupied for the purpose of avoiding eminent
domain proceedings"
3:30:48 PM
Representative Hawker asked about the definition of small
business and the "structure". He asked if it should be
primary or only the general location. Representative Holm
did not know if primary would be the correct word.
3:32:11 PM
Vice Chair Stoltze commented that small business in his
area were agricultural entities. He asked the intent of
the amendment. Representative Holm replied that the intent
was that when dealing with a person's business, the number
of people employed should not define it.
3:33:10 PM
Vice Chair Stoltze was confused by the use of "structure".
He did not want to exclude something. Representative Holm
thought that depriving a person of a structure would be one
thing, whereas, depriving a person of land takes the value.
By taking the structure away, there is an on-going value
destroyed. Land does not fit into that category. Vice
Chair Stoltze commented on the push of development in the
Mat-Su Valley and said he would be remiss if that was not
addressed.
3:34:49 PM
Mr. Lamkin pointed out that a structure measures 250' with
a line is drawn. The intent behind the amendment was to
protect the spirit of the small mom & pop business and
their livelihood.
Mr. Johnson noted that the sponsor had viewed Amendment #4.
The policy call of the House Judiciary Committee was to
deal with only the home. He recognized that the proposed
was a valid point in the section addressing recreation.
The typical fix or requirement is eminent domain. There is
a structure to be taken for recreational purposes. He
added that Representative McGuire would not oppose the
amendment, however, it is not the legislation's intent.
3:37:00 PM
Representative Holm stated that a number of years ago,
trail groups took land for recreation; he admitted he was
sensitive to that.
Representative Kerttula asked if the amendment only applied
to the recreation section and would not affect something
like Wal-Mart. Representative Holm agreed.
3:38:38 PM
Co-Chair Meyer hoped that small business as defined in the
amendment was the correct legal language. Mr. Johnson
advised that there had been equal protection concerns
voiced.
Mr. Putzier reiterated that Amendment #4 did arrive shortly
before the hearing. He recommended the issue, which that
should be further discussed is the equal protection
component.
3:40:08 PM
Mr. Baker echoed the advice of Mr. Putzier, noting that
they had identified equal protection as an argument someone
might make in the future.
Representative Kerttula asked if that language was
potentially opening the door to larger businesses. Mr.
Putzier replied it would. Representative Kerttula said
that was worrisome.
Representative Holm was not worried. He noted that in
essence, it is about equal protection for a person that
owns a business and a house. The amendment would protect
both.
3:41:33 PM
Representative Hawker recommended a change to the real
property and the primary location of that business. He
proposed new language, Amendment #4, Page 1, Line 12:
"means real property that is the primary location of a
business". Representative Hawker thought that change could
address the ideas of Vice Chair Stoltze.
3:43:24 PM
Mr. Johnson reiterated that it was not the intent of the
original legislation. He pointed out that the sponsor has
indicated she would not oppose anything that does not
damage the original intent of the bill.
Mr. Johnson responded to Representative Hawker's comments.
He provided a possible scenario. He worried that a careful
balance is maintained.
3:45:28 PM
Co-Chair Meyer recommended that the amendment be withdrawn
to be considered by Legal Services and Department of Law.
Representative Holm stated that HB 318 is one of the most
important bills that the Legislature will pass this year;
he stated that the amendment is important and should be
considered along with the bill.
Co-Chair Meyer believed that equal protection is a huge
concern. Mr. Johnson agreed. He noted that he did not
oppose the amendment, however, there are pitfalls
associated with it. He noted that the attorneys and the
sponsor would be willing to work on that language. He
added that it is the desire of the sponsor to move the bill
as soon as possible.
3:47:52 PM
Representative Holm WITHDREW Amendment #4. There being NO
OBJECTION, it was WITHDRAWN.
3:48:04 PM
Representative Weyhrauch MOVED a conceptual change,
Amendment #5, Page 4, following Line 14, "unless the person
otherwise agrees". He stated that the purpose of that
language would be no blanket prohibition on eminent domain
or private property.
3:48:55 PM
Co-Chair Meyer OBJECTED for discussion purposes.
Mr. Johnson interjected that the sponsor agrees with
Amendment #5.
Co-Chair Meyer WITHDREW his OBJECTION. There being NO
further OBJECTION, conceptual Amendment #5 was adopted.
3:49:31 PM
Co-Chair Meyer requested that Representative Holm follow up
with Legislative Legal Services on Amendments #3 and #4.
Representative Foster MOVED to REPORT CS HB 318 (FIN) out
of Committee with individual recommendations and with the
accompanying fiscal notes.
Vice Chair Stoltze OBJECTED for comment. He acknowledged
that it is an important bill and stated that the public
record is very important on the issue. He WITHDREW his
OBJECTION.
3:50:19 PM
Co-Chair Meyer agreed and acknowledged that the subject
needs to be discussed with legal counsel.
There being NO further OBJECTION, it was so ordered.
CS HB 318 (FIN) was reported out of Committee with
"individual recommendations" and with zero note #1 by the
Department of Commerce, Community & Economic Development,
zero note #2 by the Department of Environmental
Conservation, and indeterminate note #3 by the Department
of Law, indeterminate note #4 by the Department of Natural
Resources and indeterminate note #5 by the Department of
Transportation & Public Facilities.
3:50:59 PM
ADJOURNMENT
The meeting was adjourned at 3:51 P.M.
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