Legislature(1997 - 1998)
04/14/1997 01:10 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 1997
1:10 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 8 am
"An Act relating to the noise levels of airports and sport shooting
facilities."
- MOVED SB 8 am OUT OF COMMITTEE
(* First public hearing)
PREVIOUS ACTION
BILL: SB 8
SHORT TITLE: AIRPORT/SHOOTING FACILITY NOISE LEVELS
SPONSOR(S): SENATOR(S) HALFORD, Pearce, Green, Taylor
JRN-DATE JRN-PG ACTION
01/03/97 16 (S) PREFILE RELEASED 1/3/97
01/13/97 16 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 16 (S) TRA, RES
01/28/97 (S) TRA AT 1:30 PM BUTROVICH ROOM 205
01/28/97 (S) MINUTE(TRA)
01/29/97 159 (S) TRA RPT 4DP 1NR
01/29/97 159 (S) DP:WARD,HALFORD,WILKEN,GREEN;
NR:LINCOLN
01/29/97 159 (S) ZERO FISCAL NOTE (LAW)
01/29/97 163 (S) COSPONSOR(S): GREEN
02/03/97 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/03/97 (S) MINUTE(RES)
02/03/97 (S) MINUTE(RES)
02/05/97 (S) RES AT 3:30 PM BUTROVICH ROOM 205
02/05/97 (S) MINUTE(RES)
02/05/97 (S) MINUTE(RES)
02/06/97 247 (S) RES RPT 6DP 1NR
02/06/97 247 (S) DP: HALFORD, TAYLOR, SHARP, GREEN,
02/06/97 247 (S) LEMAN, TORGERSON; NR: LINCOLN
02/06/97 247 (S) PREVIOUS ZERO FN (LAW)
02/25/97 (S) RLS AT 10:30 AM FAHRENKAMP RM 203
02/25/97 (S) MINUTE(RLS)
02/25/97 493 (S) RULES TO CALENDAR 2/25/97
02/25/97 494 (S) READ THE SECOND TIME
02/25/97 494 (S) AM NO 1 OFFERED BY HALFORD
02/25/97 494 (S) AM NO 1 ADOPTED Y14 N5 A1
02/25/97 495 (S) AM NO 2 NOT OFFERED
02/25/97 495 (S) ADVANCED TO THIRD READING
UNAN CONSENT
02/25/97 495 (S) READ THE THIRD TIME SB 8 AM
02/25/97 496 (S) COSPONSOR(S): TAYLOR
02/25/97 496 (S) PASSED Y16 N4
02/25/97 496 (S) LINCOLN NOTICE OF RECONSIDERATION
02/26/97 523 (S) RECON TAKEN UP - IN THIRD READING
02/26/97 523 (S) RETURN TO SECOND FOR AM 3
UNAN CONSENT
02/26/97 523 (S) AM NO 3 FAILED Y5 N15
02/26/97 524 (S) AUTOMATICALLY IN THIRD READING
02/26/97 525 (S) PASSED ON RECONSIDERATION Y16 N4
02/26/97 526 (S) TRANSMITTED TO (H)
02/27/97 500 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/97 500 (H) JUDICIARY
04/14/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BRETT HUBER, Legislative Assistant
to Senator Rick Halford
Capitol Building, Room 121
Juneau, Alaska 99811
Telephone: (907) 465-4958
POSITION STATEMENT: Prime Sponsor SB 8
ROBERT LARSEN
P.O. Box 1386
Palmer, Alaska 99645
Telephone: (907) 746-0774
POSITION STATEMENT: Testified in support of SB 8
LLOYD WEBER
1861 Bayview Drive
Wasilla, Alaska 99654
Telephone: (907) 376-6566
POSITION STATEMENT: Testified in support of SB 8
ROBERT REGES, Assistant Attorney General
Civil Division
Natural Resources Section
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501
Telephone: (907) 269-5100
POSITION STATEMENT: Provided testimony on SB 8
DICK BISHOP, Executive Director
Alaska Outdoor Council
211 4th Street, Suite 302 A
Juneau, Alaska 99801
Telephone: (907)463-3830
POSITION STATEMENT: Testified in support of SB 8
ACTION NARRATIVE
TAPE 97-56, SIDE A
Number 001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee to
order at 1:10 p.m.. Members present at the call to order were
Representatives Con Bunde, Jeannette James, Eric Croft, Ethan
Berkowitz and Chairman Joe Green. Representative Norman Rokeberg
arrived at 1:11 p.m., and Representative Brian Porter arrived at
1:37 p.m.
SB 8 am - AIRPORT/SHOOTING FACILITY NOISE LEVELS
CHAIRMAN GREEN advised members the only bill scheduled was SB 8 am,
"An Act relating to the noise levels of airports and sport shooting
facilities."
Number 082
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Prime
Sponsor of SB 8, stated that included in members committee packets
was the sponsor statement, a zero fiscal note, sectional analysis
and various letters of support.
MR. HUBER advised members Senator Halford introduced SB 8 to
provide protection for existing sport shooting ranges and private
airports from nuisance law suits based on noise level. He stated
that although it had not yet proven to be a significant problem in
the state of Alaska, numerous sport shooting ranges and private
airport facilities in the Lower 48 had found themselves in the
situation of facing a law suit filed by someone who had moved into
the area of an established operation, and later decided they did
not like the noise.
MR. HUBER pointed out that the issue was addressed by the
Nineteenth Legislature with the passage of SB 274 by a wide margin
prior to being vetoed by the Governor. He explained that during
the committee review of the proposed legislation in the Senate,
several concerns had been raised by the Alaska Municipal League,
the Department of Law and the Department of Community and Regional
Affairs. Mr. Huber advised members that the sponsor worked with
those agencies to address the concerns and resolved them with
Senate floor amendment. He noted that AML and DCRA confirmed that
their concerns were addressed, and letters reflecting that could be
found in member's bill packets.
MR. HUBER referred to letters from the National Rifle Association,
Alaska Air Carriers Association, Alaska Airmen's Association,
Alaska Outdoor Council and Alaska Boaters Association who also
endorsed the proposed legislation.
Number 208
REPRESENTATIVE CON BUNDE understood that Colorado had similar
legislation, and part of that legislation required that when
someone brought suit against an airport or a rifle range for
reducing the values of the property because of noise problems, that
when the property was put up for sale the existence of that law
suit was required to be available to potential buyers.
REPRESENTATIVE ERIC CROFT advised members that he was curious as to
the level of activity that the bill addressed and asked if the
airports and shooting facilities could be defunct, and if so, what
would be the substantial change in the use. He stated that if it
was a nonoperating shooting range and he bought property near the
range, what notice would he have of the noise level that would come
and would it be a change in the substantial use of the facility
when the noise level began.
MR. HUBER advised members that the definition of "substantial
change in the use of a facility" was part of what the Senate floor
amendment dealt with. He stated that it added subsection (3),
page 2, line 6, and the qualifiers for "substantial change in the
use", could be found on page 2, beginning on line 28, and continued
on to page 3. Mr. Huber advised members that it was the intent of
the legislation and the sponsor to grandfather in the facilities
that were in use, whether in use at the specific time of purchase,
or whether they come back into use at a later date. He pointed out
that it was not uncommon in the state of Alaska for a landowner to
develop a piece of ground, build a house on the property and then
build a private airstrip. At some point in time, the owner may
choose to, or have need to sell his aircraft as well as other lots
near the airstrip. If the owner was the only user of the airstrip
and he sold his aircraft that would, basically, cause an
interruption in the use of the facility, but the facility still
existed.
MR. HUBER stated that as adjacent pieces of property were sold, and
two or three aircraft came back to the airstrip, it was the intent
of the sponsor that it was still a facility that ought to be
afforded the protection that SB 8 offered from a noise nuisance
suit. Mr. Huber felt it was important to note that it dealt only
with noise nuisance. If there were any other types of safety
concerns, or any other type of nuisance action, SB 8 did not exempt
the facilities from action on those.
Number 522
REPRESENTATIVE CROFT referred to the definition of an "established
facility" and what was required in order that a facility be
considered established, and if there was a period of lack of use
that would deem it no longer an established facility.
Representative Croft referred to page 2, lines 17 through 21, which
reflected a three year time period; however, on page 2, line 10, it
talked about if the facility was established before the person
acquired the property. He stated that "established" in that
section, beginning on line 17, was not the same as how
"established" was used on line 10. Representative Croft stated
that it made sense to him that if he moved next door to an
established shooting facility, he should not be able to complain
about the shooting that took place there unless it substantially
changed in character, but then comes the question, what is
"established". If it was a facility used as a shooting facility
three years ago, 10 or 20 years ago, he would not have the same
sort of notice or degree of comfort with the bill as he would if
the range was active at the time of purchase. Representative Croft
asked that Mr. Huber explain what an "established facility" would
be under the language on line 10.
MR. HUBER advised members that the definition of "established
facility" applied only to the time limitation on when suit could be
brought.
REPRESENTATIVE CROFT asked if the sponsor would have an objection
to a similar definition of "established" that would address the
language on line 10. He noted that if a facility had not been used
for three years, it would not be an established facility when
someone moved next door to the property.
MR. HUBER believed the sponsor would have a problem with bringing
the three year time limit, probably not so much as the bill applied
to shooting ranges, but it also applied to private airstrips which
could be visually seen as being in place. He noted that he
understood the concern Representative Croft was getting to, with
respect to the notice, but he believed that then one would have the
opportunity to argue that resuming activity would fall under the
change in the use of the facility exemption that was provided,
which would, basically, put it back in the hands of the courts
whether they believed the action was something that could be
brought and something that they would hear.
REPRESENTATIVE CROFT stated that the conversation, being on record,
might cure the problem. He stated that if something had not been
used for a long period of time, the resumption might be a
substantial change in use.
REPRESENTATIVE NORMAN ROKEBERG stated that it could be, but would
not necessarily be a substantial change in use.
MR. HUBER agreed, and stated that would merely offer a chance to
argue and present that side to the courts, where the definition
would ultimately be construed, and he felt it was important to note
that the language stated, "substantial change in the use shall be
strictly construed to maximize the immunity", and, "does not
include a mere increase in the frequency of flights or the number
of shots". Mr. Huber advised members that it was the sponsor's
intent to provide as much protection as possible for those
facilities that had been used for those activities in the past so
they could continue to be used for those activities as long as
noise was the only concern. Again, he stated that concerns, other
than noise, were not addressed in SB 8.
REPRESENTATIVE BUNDE advised members he had a modest problem with
the three year limitation, knowing how long it could take to build,
or rebuild an aircraft. He could see a person who owned a private
airstrip to take upon himself to do sweat equity, or rebuild an
airplane, it would take three years to do that and the airstrip may
not have been used regularly during that interim period.
Representative Bunde pointed out that there was what might be
termed an adverse possession, or something, where a person had a
trail across someone's property and he had to drive on it once
every so often, and the person had allowed someone access to the
property, it was necessary to block the trail off at certain
intervals every few years for the purpose of establishing
ownership. He asked if that was the sort of thing where if an
airplane touched down once every three years it would be considered
continued use, as well as if someone target practiced once a year
at a rifle range.
REPRESENTATIVE BERKOWITZ asked if any such suits had been filed in
the state of Alaska.
MR. HUBER advised members no suits had been file in the state to
his knowledge.
REPRESENTATIVE BUNDE pointed out that he believed an individual in
Eagle River who had a pioneer airstrip wanted to develop the lots
and sell them, and neighbors had said the property had not been
used as an airstrip for a number of years.
MR. HUBER pointed out that to qualify his response, the sponsor had
not done any research as to whether a case had occurred in the
state; however, the bill did not come forward with the intent to
remedy a specific situation, but with the idea of being proactive
to a situation that had happened in areas of the Lower 48 that had
urbanized and spread faster than in Alaska.
REPRESENTATIVE BERKOWITZ asked what had happened to the suits that
had been brought in the Lower 48.
MR. HUBER advised members that it was his understanding that,
generally, the suits had been resolved in favor of the existing
facility; however, that was after time and money had been expended
by the existing facility. He stated that the only penalty was not
just having a case being found against one, but the time, money and
effort involved in the actual litigation itself.
Number 1052
REPRESENTATIVE CROFT directed members attention to page 2, lines 10
and 11, the prohibition on the nuisance said, "unless the facility
substantially changes the use of the facility after the person
acquires the property." He stated that if the property had not
been used much, it would depend on when a person bought. If a
person bought during a period of high use, that would be the type
the person would have notice of and the use could not change. If
a person bought during a period of little use, that would be the
reference point.
MR. HUBER stated that would be correct.
REPRESENTATIVE JEANNETTE JAMES advised members that she knew of
cases in the Lower 48 where a lot of trouble had been made for
airports in particular. She pointed out that the bill addressed
two very important issues in the state of Alaska, especially as
more people were moving up to the state. Representative James
advised members that was she was willing to go a little further out
on the limb for airports and shooting ranges because in Alaska,
where air transportation was extremely important, it seemed to her
that the ability to maintain the existing facilities was very
important. She felt that airports and shooting ranges should have
an exceptional immunity, as opposed to other things, because of
Alaska's lifestyle. Representative James felt it was appropriate
to address the issue now before being faced with some of the same
problems the Lower 48 was experiencing.
Number 1250
REPRESENTATIVE BERKOWITZ asked to what extent the bill would
interfere with municipality's ability to regulate its own areas
within its own jurisdiction.
MR. HUBER advised members that the immunity that the bill offered
facilities from nuisance noise action, also offered for municipal
ordinance. He noted that was where the item of contention and
where the concern from AML and DCRA came from. Mr. Huber advised
members the bill limited only the municipality's ability to control
those facilities specifically by noise ordinance; not for safety
concerns, not for changes in the area, and would exempt zoning
laws. Mr. Huber pointed out that the bill did grandfather
facilities in to subsequent noise control ordinances that would be
offered at the municipal level, which was why the substantial
change in the use of the facilities exemption was added on the
Senate floor.
REPRESENTATIVE BERKOWITZ stated that the municipality would still
be free to regulate, based on health or safety criteria.
MR. HUBER stated that would be correct.
CHAIRMAN GREEN pointed out that in some cases, a shooting range, or
small airstrip might not be readily visible, and if not used for a
period of time, would the bill eliminate the possibility of redress
for a person who had bought property in the area, not knowing an
airstrip or shooting range existed prior to his purchase, and then
began to operate after a period of time.
MR. HUBER advised members that it would eliminate the possibility
of redress through a noise nuisance action.
REPRESENTATIVE JAMES asked Representative Rokeberg if that would be
a situation where a real estate agent would be required to disclose
the existence of a facility, whether in operation or not.
REPRESENTATIVE NORMAN ROKEBERG advised members that the legislature
had seen fit to impose a disclosure statement on the alienation of
any real estate, and he believed that would be a requirement in the
circumstance referred to.
CHAIRMAN GREEN did not believe something that was not located on a
person's property would have to be disclosed, other than perhaps
ethically. He did not know if an airstrip or shooting range that
was not in operation would have to be disclosed.
REPRESENTATIVE ROKEBERG asked if there had been discussions
regarding a noise decibel or geographic boundary requirement in any
other hearings on the bill.
MR. HUBER stated that the bill did not deal specifically with noise
decibel level, or with proximity to a facility; a discussion on
those issues had not occurred.
REPRESENTATIVE ROKEBERG noted that he did live in the shadow of the
sound of the Anchorage International Airport and his district
included the Lake Hood area and the strip spoken to in the attached
report from the Airmen's Association. He asked if it would be
correct to state that SB 8 would not affect the operations of any
municipal or state owned airport.
MR. HUBER said that would be correct.
REPRESENTATIVE ROKEBERG stated that the airstrip referred to in the
letter from the Alaska Airmen's Association regarding proposed real
estate legislation, would not come into play, because the strip at
Lake Hood was on state property.
MR. HUBER said that would also be correct.
REPRESENTATIVE ROKEBERG pointed out that there was a strip on the
Hill Side area that had been there a number of years, and he was
concerned that if they were talking about substantial changes of
use, he could conceive a situation of going from a private
utilization to some type of commercial utilization. He asked if
anyone was aware of whether the use of a facility was changed who
would have jurisdiction over the commercial use of a private
airstrip.
REPRESENTATIVE BUNDE advised members that airstrip was currently
used commercially to rent tie-down spaces for people who did not
own property immediately adjacent to the airstrip, and added that
it had been used commercially for 20 years if "commercially" was
defined as a business existing on the premises, which included a
maintenance building and tie-down spaces.
REPRESENTATIVE ROKEBERG stated that if there was an air taxi
operation that commenced operation on the Hill Side strip would be
covered as a substantial use, change of use, and/or would other
authorities come into play there.
MR. HUBER stated that a great deal of discussion on "substantial
use" occurred in the Senate Resources Committee where the sponsor
brought forward a committee substitute that incorporated
"substantial change in use", and the concern of the Senate
Resources Committee was the need for a definition of "substantial
change in use" that dealt with a situation where there was a
private airstrip that single engine recreational flights were
operating out of. Mr. Huber stated that whether it was a touch
down and take off three times a day or six times a day, in the
sponsor's opinion, should not matter, but "substantial change in
use" was included because if there was a facility, like the strip
members referred to that was extended, paved and then have multi
engine cargo planes utilizing the airstrip, that obviously was a
substantial change in use and something that ought to be addressed
through noise nuisance action or by municipal ordinance. Mr. Huber
stated that, ultimately, "substantial change in use" would be
determined by the court when an action is brought; however, he
believed that just taking money for a flight, if it was still
single engine, same type of aircraft, same type of use, would
probably not make a substantial difference.
Number 1714
REPRESENTATIVE JAMES stated that in thinking about how the bill
would be implemented that it might be wise, particularly in the
area of shooting ranges, to include a period of time that the
shooting range or airstrip would sit idle. She stated that if a
time period were stipulated in the bill, people who wanted to
protect their property from being un-grandfathered, would be sure
that time would not lapse.
REPRESENTATIVE BERKOWITZ asked Mr. Huber approximately how many
private sport shooting ranges there were statewide.
MR. HUBER advised members he did not have that number right off the
top of his head.
REPRESENTATIVE BERKOWITZ asked for just a ballpark estimate.
MR. HUBER stated that it was probably in the category of dozens.
REPRESENTATIVE BERKOWITZ asked if they were subject to municipal or
state licensing requirements.
MR. HUBER advised members that he knew of no state licensing
requirements, and believed that municipalities handled that in
different ways.
REPRESENTATIVE BUNDE noted that he could think of two in the
Anchorage Bowl, one out at Birchwood, and up at Eklutna there was
a person on his private property very consistently target
practicing. He noted that a lot of homesteads in the state
probably have their own target range where they shoot for sight-in
purposes or practice shooting.
REPRESENTATIVE BUNDE advised members that his perception of
"substantial change", was if there had been a lack of activity for
more than 12 months, and then the activity changed, that in his
mind, that would constitute a substantial change. He pointed out
that he tried to allude to earlier what Representative James just
mentioned, that if an individual wanted to change the use of a
piece of property, the owner would have to establish ownership and
maintain ownership of the area annually, or for whatever period was
required. Representative Bunde stated that he could see a
situation where there was a shooting range or a private airport
that once a year it would be expected that a few shots be shot off
or land an airplane.
REPRESENTATIVE CROFT declared a possible conflict of interest as a
member of the Isaac Waldon [Ph] Shooting Range, and felt the bill
may effect their ongoing operation.
REPRESENTATIVE ROKEBERG asked if the bill sponsor considered the
recommendations of the Airmen's Association regarding providing for
notification, which would broaden the bill substantially.
MR. HUBER advised members that letter was accompanying a letter of
support for the bill as drafted, and inadvertently was included in
the committee packet. He advised members that Senator Halford had
talked to the person who sent that letter, and they were further
researching whether that could, perhaps, be subsequent legislation
that the Senator would like to introduce. Mr. Huber advised
members that it would be the sponsor's intent to address that issue
in separate legislation.
REPRESENTATIVE ROKEBERG stated with respect to adverse possession,
that under common law that would amount to a seven year period,
either constructively or actively; however, he did not know what
the present status was on that.
CHAIRMAN GREEN pointed out it was a five year period in the state
of California.
REPRESENTATIVE CROFT advised members it was seven years and ten
years.
REPRESENTATIVE ROKEBERG advised members that he once had an
opportunity to fly into the Talachulitna Lodge in a Cassa [Ph] 24,
which was a dual engine plane well adapted to bush use. He pointed
out that he could see a dual engine aircraft that was suited for a
short field landing capability, and could see where a lot of
private strips exist in lodges throughout the state where there was
no other municipal regulation. Representative Rokeberg asked Mr.
Huber if he was aware of any kind of environmental causes of action
that could relate to law suits that could be brought by people in
the environmental community to stifle the growth, and whether the
bill would have any impact along those lines.
MR. HUBER advised members that had not been a topic of discussion.
REPRESENTATIVE ROKEBERG pointed out that a friend of his had a by-
plane that had a reciprocating type engine which was a loud engine,
and asked if the type of aircraft changed, would that be considered
a substantial change in the use of the airstrip, such as a Cessna
206 to a Beaver.
MR. HUBER felt it was important to note that the sponsor's intent
with the proposed legislation was a lot in line with Representative
James' comments, that flying airplanes and sport shooting in Alaska
were activities that were historical and important activities in
the state, and activities that the sponsor believed ought to be
preserved and continue to be enjoyed. He stated that the bill
clearly set out to provide the maximum immunity possible for those
types of facilities and he would not interpret "substantial change"
to mean that that was a reason for the owners of those facilities
to have to endlessly justify whether it was a bore [ph] prop or not
on the last plane that touched down on the strip.
CHAIRMAN GREEN advised members he could understand that a Beaver
would shake the houses as opposed to another single engine plane;
however, if it was, and had been utilizing an operating facility it
would not be affected by the "substantial change" provision of the
bill. He was yet concerned with a situation where an airstrip or
shooting range had been dormant for less than a three year period
and someone buying that property, not even knowing the operation
existed previously, and immunity would still come into effect.
REPRESENTATIVE JAMES stated that if a deadline were included in the
bill people would attempt to meet it. She pointed out that she was
thinking of that as a protection measure, rather than a
restriction; however, if a time frame were included in the bill it
would be apparent that the use of the facility would have to be
reestablished within that period of time. Representative James
stated that once an area had been established, on private property,
that it seemed to her that it should be grandfathered in and
whatever it took to maintain the grandfather right should be
allowed. She noted that other grandfather rights on real property
was as long as the person owned the property, and she might like to
see that in the bill. Representative James advised members she
would like to specifically state that a piece of private property
was protected for a specific use no matter who might come along and
want to change that use, or sue for noise.
Number 2263
MR. HUBER pointed out that it appeared that the main concern of the
committee regarded the time frame. He advised members that
subsection (3) was incorporated into Section 1 to bring in those
type of unique, or peculiar circumstances in "substantial change,
and the use of the facility". Mr. Huber advised members that the
definition of "established" could be found on page 2, line 17,
which said; "established" includes resuming shooting activity at a
sport shooting facility if there has not been shooting activity at
the facility for three or more years". He advised members it was
not the sponsor's intent to mandate use of a facility at certain
intervals; however, if a person bought property during the time the
shooting range was not being used, and after that time the shooting
range becomes active, as long as the person made his/her pitch and
try to bring the suit to court that would state they were within
the five year period after the facility reestablished operation,
and qualified under the definition of established, it would bring
the question down to "substantial change in use". At that point,
MR. HUBER thought the argument could be made as to what the
historical use versus the use at the time it resumed was there
"substantial change in use", and that was the reason for subsection
(3) in the bill, to handle unique and different circumstances. Mr.
Huber reiterated that it was certainly the sponsor's intent to have
the facilities that were in existence, stay in existence. Not to
grandfather in those spaces, because there were other concerns that
might happen. There could be a flight plan problem, another health
or safety concern that could be raised, and if those legitimate
concerns were out there, those facilities would have to fend as
they could under the new circumstances they were in. Mr. Huber
stated that for noise, specifically, the bill intended to provide
the maximum immunity possible to those facilities.
Number 2336
REPRESENTATIVE BERKOWITZ referred to "substantial change in the
use", and not including a mere increase in the frequency of flights
or the number of shots, and asked if that was to mean those would
not be the exclusive criteria used to evaluate whether "substantial
change" had occurred.
MR. HUBER stated yes; if there were 4000 shots a week fired at the
shooting range, and now the business was becoming more successful
and firing 6000 shots per week, that that alone should not meet the
"substantial change".
REPRESENTATIVE BERKOWITZ stated that it could be used in concert
with some additional facts, such as, target shooting at midnight or
3:00 in the morning. He added that that was an extreme example.
MR. HUBER stated that the person would have to make the case as to
why he/she believed that constituted a "substantial change" in the
use of the facility. He advised members that it provided
direction to the court that merely an increase in frequency in
shots or flights was not sole justification of a "substantial
change".
REPRESENTATIVE BERKOWITZ noted that would be the case standing by
itself, but it could be used if combined with other factors.
MR. HUBER agreed that other factors, as well as any other angle a
person could think of when putting the suit together would be the
case.
CHAIRMAN GREEN took testimony via teleconference and asked that
Robert Larsen, from Mat-Su, present his comments to the committee.
Number 2416
ROBERT LARSEN advised members that he was a long-time Alaskan and
was involved in all of the pursuits that made noise, such as
flying, sport shooting and hunting, et cetera, as a user. He
wanted to advised the House Judiciary Committee that he and his
wife supported passage of SB 8 as they would like to see some
protection afforded to shooting ranges and airstrips. Mr. Larsen
stated that he wanted to pass on that the Sand Lake Gun Club in
Anchorage was shut down utilizing noise as an excuse to obtain
property. He noted that he would be happy to relate the tale of
how that happened if members were interested, but he felt some
members probably remembered the incident as well as probably used
the facility. Mr. Larsen pointed out that the location of the Sand
Lake Gun Club was close to the airport where the noises of the jets
were at least as noisy as gun shots and the Club sat on 25 very
valuable acres.
TAPE 97-56, SIDE B
Number 000
MR. LARSEN stated that sometimes it was necessary to consider
selfish motives and guard against those.
REPRESENTATIVE BUNDE expressed his apologies, as someone familiar
with the Sand Lake Gun Club and its story, he should have relayed
that to the committee. He advised members that it was a very nice
place.
MR. LARSEN felt some members were probably aware of how the
facility got shut down.
REPRESENTATIVE ROKEBERG pointed out that that site was only just a
few blocks from his home, and he recalled it well. He noted that
it was now the area called Sportsman Point, probably the most
exclusive residential area in the city Anchorage.
LLOYD WEBER concurred with the statements made by Robert Larsen,
although he wondered whether the bill went far enough in protecting
the float plane operators. Mr. Weber pointed out that he could see
the same issue arising on the lakes in the state. He stated that
Wasilla Lake had been swarmed with a lot of restrictions, not so
much with airplanes, but advised members he was a shooter and
hunter, and had also been involved in aviation during the 25 years
he had lived in Alaska. Mr. Weber noted that he had been aware of
noise abatement for some time in the area of aviation and saw its
encroachment becoming a grave concern to airplane owners. Mr.
Weber supported the passage of SB 8.
ROBERT REGES, Assistant Attorney General, Civil Division, Natural
Resources Section, advised members that regarding the language
"substantial change in use", that there was an interesting case out
of Wisconsin, Kruger [Ph] v. Mitchell, 332 NW 2d 733, which
involved an airport. The plaintiff had a business and the old
airport was not paved and had a different alignment than the new
runway. Mr. Reges stated that the owner realigned the runway and
paved it and the court decided that was a nuisance, and their main
reasoning was because it channeled the aircraft directly over the
plaintiff's business, whereas before it was off to the side.
MR. REGES stated that the question was discussed as to who might
have control over noise from the federal regime, which he pointed
out would be the Federal Aviation Association (FAA). He advised
members there was an interesting United States Supreme Court case
regarding noise from airports which was The City of Burbank v.
Lockheed Air Terminal, 411 U.S. 624, a 1973 case. Mr. Reges stated
that most controls over airports were preempted by the FAA because
most efforts to control noise at airports involved regulating hours
when planes could land or take off, regulating size of aircraft, et
cetera, and the FAA, obviously, had a vested interest in
controlling that and not allowing localities to do certain things.
MR. REGES explained that he raised those two cases in the same
breath because in the Kruger case they analyzed the Lockheed case
to some great length and decided that a local plaintiff was not
preempted when seeking damages from the airport owner. He noted
that in that case, the plaintiff was allowed to receive money
damages for the diminution in value to his real property. Mr.
Reges stated that he was not allowed to enjoin the aircraft
activity because the injunctive relief that he sought was preempted
by the federal government. He pointed out that that was one
example of the compromises seen in the courts; while you cannot
stop the planes from coming and going because maybe they have a
connection somewhere else, you could receive money damages which
went back to the comment regarding diminution of property value.
MR. REGES advised members there were some interesting cases out of
the state of Pennsylvania relating to shooting ranges. He pointed
out that Pennsylvania, in the midst of several cases, adopted a law
similar to SB 8. Mr. Reges stated that those cases were not
dispositive, he thought the question earlier was, "what had
happened in the Lower 48 when people had complained and brought
nuisance actions". Mr. Reges stated that each of the two cases he
would bring to the committee's attention were remanded, so it was
not known what ultimately happened, but originally, the landowners
were able to prevail on injunctive relief and in the course of
their litigation and appeals, the Pennsylvania Legislature adopted
a similar bill, and so both cases were sent back to the courts to
be revisited in light of the bill. Mr. Reges advised members that
the cases at issue were Gray v. Barnhardt, 601 A. 2d 924, which was
a 1992 case, and Soja [Ph] v. Factoryville Sportsman's Club, 612 A.
2d 491, which was also a 1992 case.
MR. REGES stated that in the absence of SB 8 and the absence of
those sorts of protections, the property owners, even those who
moved in after the fact, were able to prevail and do what
apparently happened at Sand Point, which was limit the hours in
which shooting took place, and then it was remanded.
MR. REGES advised members that there was a case out of Arizona
which involved two heavy hitters, Spur Industries v. Del Webb, 494
P. 2d 700. He noted that if any of the members ever played golf in
Phoenix, they were probably familiar with Del Webb's Sun City West.
Mr. Reges advised members that when Mr. Webb started to build Sun
City West, the area consisted of cattle feed lots. The retirees,
who were moving to Phoenix, did not envision moving next to a feed
lot, so Mr. Webb and Spur Industries had some difficulties and Mr.
Webb was coming to the nuisance issue that the feed lots were there
first. Mr. Reges advised members that the Arizona Supreme Court
said, "Well, times are changing in Phoenix. You cannot be a feed
lot anymore, so we'll allow Mr. Webb to bring this case because
we're not going to bar him from bringing the case just because he
came to the nuisance. But we are going to take that into account
in the remedy. Mr. Webb, you have to find a new home for the feed
lot, and you have to help the owner acquire the property that you
found."
MR. REGES stated that was why it was called the seminal case,
because they thought it was really how they fashion the remedy.
The courts were not going to say Phoenix could not grow, or stifle
growth through the use of the coming to the nuisance doctrine,
which it did have a tendency to do. But, they were going to
fashion the remedy and take into account the fact that he was there
last and the other guy was there first, so the last guy would have
to help the feed lot person find property, even if it meant
financial assistance.
MR. REGES advised members that was an interesting approach to
coming to the nuisance which was the part of the bill he wanted to
talk about. He explained that SB 8 adopts the coming to the
nuisance doctrine as a complete bar to a plaintiff who was
aggravated by the noise, et cetera, and that was not the doctrine
that was shared by the judiciary, at large, in the United States.
MR. REGES explained that under the concept of coming to the
nuisance, what was being said was that a person could complain
about another only if the complainant was there first. He stated
that a person may complain about noise at an established facility,
only if that person acquired his property before the noise maker
started. Mr. Reges directed members attention to page 1, lines 8
and 9, which stated, "a person may not bring an action for noise
level against a facility located within the vicinity of the
person's property if the facility was established before the person
acquired the property." Mr. Reges stated that there was the
"unless" clause, so if there was a "substantial change in use", a
person could still bring a cause of action; that it was not a
complete bar, and was not a complete bar if there was something
other than noise. However, if the noise maker was there first and
he did not engage in the "substantial change in use", it was a
complete bar.
MR. REGES advised members that the judiciary had rejected that
concept of it being a complete bar because that tended to stifle
growth. He noted that a question had been posed as to
environmental groups use that claim to stifle growth, and he
submitted to the committee that the case law stood for the
proposition that that type of complete bar was what stifled growth.
Mr. Reges stated that the bottom line was that the courts say that
it is a factor to consider in, a) the burden of proof on the
plaintiff, and b) the remedy. They will not completely prohibit a
person, or business from bringing an action, because nuisance was
unreasonable interference, and if there was unreasonable
interference, the court would allow the case to go to court, but
they would take into account that the interference existed prior to
the plaintiff getting there.
MR. REGES wanted to make it known that the bill was adopting a
somewhat atavistic approach to real property management, and a
concept that was generally rejected in the judiciary in favor of
saying that a person who brings a nuisance action for noise level
against a facility, located in the vicinity of the person's
property, must demonstrate that the noise was grossly unreasonable
unless the facility substantially changed. That was what the
courts generally do, they place an extra burden on the plaintiff to
demonstrate that it was grossly unreasonable.
MR. REGES advised members with respect to disclosure there was an
Alaska case, Bevens v. Ballard, which was a State Supreme Court
case out of 1982 or 1984, where the scope of the duty was not to
engage in negligent misrepresentation. So, if he was a broker or
a sales person, or a seller of land and said; "Oh, I've got a real
nice quiet piece of property", knowing full well that a
grandfathered shooting range existed in the area, that he would
have then breached the disclosure requirements and had engaged in
negligent misrepresentation. However, there was no duty on him to
say; "Oh, by the way, you've got a really noisy neighbor and you
can not do anything about it, see AS 34.75." So that was the scope
of the duties. Mr. Reges advised members the person could remain
silent, and if their were no planes landing, or no shots going off,
the individual would not know, and there would be no obligation on
the broker to reveal that, neither in the real estate commission
disclosure form or in Bevens v. Ballard.
Number 600
MR. REGES noted that the comment had been made that in Alaska,
because of the lifestyle, exceptional immunity should be afforded.
He submitted that that was what the bill did on page 2, lines 8 and
9. He stated that if that was the decision of the body, then fine,
so be it, but he did not want that being done without everyone
understanding, fully, what was taking place.
REPRESENTATIVE ROKEBERG advised members that Bevens v. Ballard was
modified by the disclosure legislation which was subsequent to the
case; however, even without the disclosure legislation, Bevens
would not apply. He asked if Mr. Reges was suggesting that the
disclosure requirements now would not apply if there was a period
of inactivity.
MR. REGES advised members that he did not work with the disclosure
statute on a daily basis; however, had had occasion to work with it
recently. He explained that the disclosure legislation,
essentially, codified Bevens v. Ballard, and did not go as far as
most of the brokers and sales people go. Mr. Reges advised members
that the legislation only dealt with residential property, and most
discriminating brokers made disclosures even as to commercial
property. Mr. Reges stated that it was his understanding of that
legislation, and the case, that neither one required an affirmative
disclosure of what the neighbor was doing. If there was an
unreasonable interference, a nuisance in the vicinity of someone's
property, he did not believe that legislation required its
disclosure.
REPRESENTATIVE ROKEBERG stated that it could also be a situation
where the agent was not aware of the defect that would protect the
agent under the new disclosure law, visa the Bevens case. He
believed that unless there was a small shooting range that might be
given away, generally, it would be obvious to a casual observer
that there would be some activity there.
MR. REGES believed the issue came up in the context of a facility
that was dormant for some period of time and his comment would be
there would be no obligation by anyone to alert the potential buyer
that he was walking into a situation and would not, thereafter, be
able to do anything about it because, unlike the judiciary, the
legislature completely barred action.
Number 733
CHAIRMAN GREEN asked if what Mr. Reges was saying was that there
would be no recourse, if the bill were enacted, for a person to
file a nuisance claim where during a 2 year plus shutdown period,
property was sold, and then the facility once again began to
operate.
MR. REGES felt that he would adopt the interpretation of
"substantial change in use" that was espoused by Representative
Berkowitz; that if he was the plaintiff, he would go in and say;
"Well, Your Honor, what's here is simply the mere increase in the
number of shots and isn't a substantial change in use"; however, he
stated that the scenario provided by Chairman Green reflected no
shots or activity to the new property buyer. Mr. Reges stated that
the facility might have been established, but it was not operating,
so he felt the short answer would be that there still would be a
cause of action under the "unless clause", page 2, lines 10 and 11,
if he could prove that there had been a substantial change in use.
Mr. Reges advised members he would have to focus his litigation on
the "substantial change in use" language, as opposed to
acknowledging that he'd come to the nuisance, and carrying a heavy
burden and possibly demonstrating that it was grossly unreasonable;
some other burden, or fashioning a remedy. He stated that more
courts fashion a remedy to accommodate the concern.
REPRESENTATIVE ROKEBERG asked if he would pursue that within the
three year period of dormancy.
MR. REGES stated, no, under Section 35.75.020, a person had three
years from the change in use, so he would fall under line 16,
within five years after the facility was established. His argument
would be that they were not shooting when he got there, nobody told
him it was a shooting range, it looked like woods to him because
there was a buffer zone. Shooting then began, at some point he
would complain and attempt to bring a nuisance action, the people
say, no you can't, you're barred under this; he then would look at
the statute and say, his only avenue would be to prove there was a
substantial change in use, and he would have five years from the
date they started shooting again to bring the action. Mr. Reges
stated that his argument would be that the substantial change in
use was the recommencement of shooting.
REPRESENTATIVE BERKOWITZ asked if the intent was to limit nuisance
actions.
MR. HUBER advised members the intent of the bill was to provide
some assurance of facilities addressed in the bill, sport shooting
ranges and private airports facilities, to be able to continue
maintaining those facilities for that use, and provide limitations
on the amount or nuisance or noise ordinance activities that they
would fall under after the fact.
REPRESENTATIVE BERKOWITZ pointed out that the front paragraph gave
him some concern because he believed it went far beyond just
describing nuisance actions. He felt it was sweeping in anything
that could possibly have an impact, even existing regulations or
statutes that impact an action against a shooting range or an
airport facility would somehow be swept away by that language.
Representative Berkowitz believed that went further than the
sponsor intended to go.
MR. HUBER asked that Representative Berkowitz explain that further,
and advised members he was looking at Section 1. which stated,
"Limitation on actions arising from noise level."
REPRESENTATIVE BERKOWITZ pointed out that it continued on to say;
"Notwithstanding AS 09.45.230", which was the nuisance level, and
"AS 11.61.110", was disorderly conduct, then continued to state,
"and any other state or municipal law,". Representative Berkowitz
claimed that was as wide as it could possibly get.
MR. HUBER stated to continue on through the language, it stated, "a
person may not bring a civil or criminal action against a person
who operates or uses a sport shooting facility or a private airport
facility if the action arises out of noise level".
REPRESENTATIVE JAMES stated that she assumed that in the two other
references there was the case of noise as part, but not all.
REPRESENTATIVE BERKOWITZ advised members that his concern was today
there could be a cause of action he could have against one of those
facilities, that was a legitimate cause of action, but tomorrow
after the legislation was passed, that cause of action would be
barred because the language was so sweeping. He pointed out that
it went beyond to simply someone moving to the nuisance.
MR. REGES provided an "off the cuff" hypothetical. He stated that
the prohibition in (a) did not apply to personal injury suffered by
a person while on the premises. "Let's assume somebody next door
suffers some sort of personal injury from the noise. He's barred
from bringing that action under any state law, regardless of tort
reform, whatever the tort program may be, you couldn't bring it."
REPRESENTATIVE BERKOWITZ stated that currently that cause of action
could be pursued. He stated that if he lived next door to a
shooting range and it was too loud and his hearing went, currently,
he could bring a suit claiming personal injury arising from the
noise level, which would be the theory of the case. Whereas once
SB 8 were enacted, he would be precluded from bring that cause of
action. He could no longer say he had been living next door to the
shooting range and his hearing had deteriorated over a period of
time as a consequence. It was not a nuisance action, it was a tort
action, personal injury action, and SB 8 would bar any action on
his part.
MR. HUBER advised members with the hypothetical situation put forth
by Representative Berkowitz, he would concur with, that SB 8 would
bar that action. He felt it was also important to get back to some
basic premise, noting that they were speaking to a lot of
hypotheticals and possible eventualities, but there was a basic
premise that, at some point you made the choice to buy and live on
the property next to a shooting facility.
MR. REGES stated that under that hypothetical, the individual would
be barred whether you came there first or later. He explained that
the bar under subsection (a) was not limited to people who came to
the nuisance; that could be found in subsection (c). Mr. Reges
stated that the person could have been living in an area before a
shooting range was established, and if someone's hearing was
impaired, they would not have a cause of action because of SB 8.
REPRESENTATIVE ROKEBERG pointed out that there was a provision in
Section 2. for a transition date which provided the right to bring
a cause of action, and then it spoke to the timing and asked Mr.
Huber to further explain that.
MR. HUBER advised members that any cases that were in the pipeline
would be determined as if the law was not on the books, and was
basically prospective in nature.
Number 1193
REPRESENTATIVE ROKEBERG stated that the only period a cause of
action could be brought would be after a three year period of
dormancy if you could prove a "substantial change in use."
MR. HUBER stated unless it met one of the three subsections under
Section 1., which was the intent.
CHAIRMAN GREEN advised members that was how he read it as well; if
action was not brought within three years, action could not be
brought.
MR. REGES directed members attention to Section .020, page 2, line
13, which stated, "a person may not bring a nuisance action
otherwise allowed under this chapter", and asked if the statute of
limitation there was only for the nuisance action.
MR. HUBER stated that would be correct.
MR. REGES stated that it would not be for a contract action under
(b) 1, of (b) 2. He stated that if a person had a contract action,
the statute of limitations for breach of the contract arising out
of noise was still six years, as provided in the statute.
MR. HUBER stated that would be correct.
CHAIRMAN GREEN asked that Mr. Reges further explain that.
MR. REGES advised members he was trying to determine whether or not
the statute of limitations established in AS 34.75.020 would
prohibit a person from bringing an action under the three
exceptions; (b) 1, (b) 2, or (b) 3, would limit it to bringing that
action within five years after the facility was established, or
three years after a substantial change. The answer he got from Mr.
Huber was, no, it would not limit those causes of action into the
first five years after it began operations, or the first three
years after a "substantial change", because the statute of
limitations section began, "a person may not bring a nuisance
action otherwise allowed under this chapter", unless the action is
brought within five years. Mr. Reges explained that if he was
bringing a contract action, Section 34.75.020 did not apply. If he
was bringing a personal injury action, Section 34.75.020 would not
apply, and the statute of limitations that were otherwise
established in the law control the time period he would have to
bring those types of actions, which were preserved under (b) 1, and
(b) 2.
Number 1342
CHAIRMAN GREEN advised members that his problem still existed, that
if the facility was not in operation and he wanted to bring an
action as a new owner of property because the facility was starting
to make noise, it would be down to the three year period because it
was not a new facility. He stated that because it was a nuisance
action, he could not bring action after the three year period.
Chairman Green pointed out that if he bought the property yesterday
and the three year period ran out today, he would not have a chance
to file an action. Chairman Green noted that that was a
hypothetical to the absurd, but it could take someone six months to
even realize they had an action.
MR. REGES advised members that it would be necessary to determine
what was the substantial change in use; was it the cessation of
shooting, the cessation of flights, or was it the recommencement of
fights or shooting. He felt there was at least a reasonable
argument to say that the "substantial change in use", was with a
recommencement of shooting or flights. Mr. Reges stated that if a
person bought a house and lived there for two years and 350 days,
and shooting starts up again, under the law the range had been
previously established because they did not cease operation for
more than three years. Mr. Reges stated that then he would argue,
and felt he could prevail, in saying the "substantial change in
use" was the starting up of shooting then.
MR. HUBER stated that the three year clock would start when the
person experienced the change.
CHAIRMAN GREEN stated that if he were the other attorney, he would
say, yes; however, for the prior 25 years it was a shooting range
and was only down for three years, so the "substantial change"
would be the down time, not the shooting.
MR. REGES felt that concern could be fixed in the definition of
"substantial change in use". He stated that as noted by the
sponsor's representative, Mr. Huber, there had been a lot of
discussion among members about the dormant facility that
recommenced, and it could be addressed in that manner.
REPRESENTATIVE JAMES stated that it was line 11 that protected
that.
MR. REGES advised members that the person's cause of action was
protected, but there was the concomitant statute of limitations, so
just because a person had a cause of action did not mean it had not
expired, and he felt that what members were groping with was how to
prevent the cause of action from expiring before it accrued.
REPRESENTATIVE ROKEBERG pointed out that the addition of the
"substantial change of use", was a Senate floor amendment, so that
issue had not had any debate in committee, and asked if that would
be a fair assessment.
MR. HUBER advised members he did not think that was a fair
assessment, because the "substantial change in use" was debated in
the Senate Resources Committee when the bill sponsor brought back
a Resource committee substitute that incorporated "substantial
change in use." He stated that at that time the committee felt
uncomfortable adopting that committee substitute because there was
no definition of "substantial change in use". Mr. Huber stated
that what you get to if you make exceptions for every possible
avenue being explored, is you do not want the bill. Mr. Huber
reiterated that it was certainly the intent of the bill to provide
additional immunity for those facilities. He advised members the
Resources Committee failed to adopt the committee substitute, even
though the prime sponsor chaired the committee that brought the
committee substitute forward because they felt it was limiting what
they felt the bill was trying to accomplish to too great an extent.
Number 1606
REPRESENTATIVE JAMES stated that it seemed to her that the intent
was okay, and page 2, line 11 indicated when a person could not
bring a nuisance suit and it was because the facility was already
there, unless the facility changed after a person acquired the
property. She stated that when it goes down and referred to
"established", it was then talking about the time limitation on
nuisance action, and "established", would be resuming activity; but
what if there was an acceleration of shooting activity, et cetera,
and she could see why there was a little glitch, and she did not
know if there was a way to fix it. Representative James thought
the same language on line 11, page 2, could be included in the time
limitation on nuisance actions, and preclude the door from being
shut a day after the resumption of the activity. She thought it
was important to have that three year time frame of the statute of
limitations for bringing a suit.
MR. HUBER felt one of the difficulties the committee was
experiencing was somewhat of the difficulty the sponsor had in
developing the definition for "substantial change in use", and the
feeling of the sponsor was that there was no way to tighten that up
through the legislative process to deal with all unique
circumstances, and at some point, the decision would have to be
left up to the court.
Number 1774
REPRESENTATIVE ROKEBERG advised members with respect to the three
year period of dormancy, that the bill provided for a longer period
of dormancy than three years, but allowed the mover of a cause of
action to bring the "substantial change in use" action within the
three year period after the facility resumed operations. He asked
if that would be correct assumption.
CHAIRMAN GREEN stated that the words "or begins operation", would
be when a facility started operating.
REPRESENTATIVE ROKEBERG stated that the language stated "three
years or more", so the cause of action could be brought within
three years after the facility recommenced.
MR. HUBER advised members that Section 34.75.020 dealt only with
the time limitation on bringing the nuisance action.
REPRESENTATIVE ROKEBERG agreed, and stated that there could
actually be a dormancy period for longer than three years. He
referred to page 2, line 18 and 19, which read; "if there has not
been shooting activity at the facility for three or more years".
MR. HUBER stated that there was specified period of dormancy.
REPRESENTATIVE ROKEBERG stated that for record, he wanted to make
clear that dormancy could be longer than three years. He stated
that in the Chair's example as to when the property was purchased,
there could be a dormant period of time, but after the facility
recommenced activity, there would be the three year period to bring
a cause of action. He stated that would protect the new property
purchaser; he would have a three year window in which to bring a
cause of action.
MR. HUBER felt that played into the argument of, is resuming
activity a "substantial change in the use of the facility", and as
making a case and preparing a cause of action, he believed the
longer the facility sat dormant the more it would lean towards the
person bringing the nuisance suit to say; "yes, this thing hasn't
been used in 25 years, and now they're shooting". Mr. Huber stated
that it would be easier then, to make a "substantial change" case.
Number 1965
REPRESENTATIVE PORTER asked if Mr. Huber could explain the effect
of Section 2., on shooting ranges and airstrips that had been shut
down now, and then the law goes into effect. He stated that if
someone bought a piece of property after the law was in effect, but
the range or airstrip shut down before the law was in effect, how
would that affect the buyer's rights.
MR. HUBER advised members that if the person wanted to bring suit,
it would fall under one of the allowables in Section 1.,
subsections (b) 1, 2 and 3; back to the "substantial change in use
of the facility".
REPRESENTATIVE PORTER stated then that there would be retroactivity
in terms of the facilities.
REPRESENTATIVE ROKEBERG stated that would be historic use.
MR. HUBER advised members that would be correct and that was
exactly the intent of the bill, to grandfather in those activities.
REPRESENTATIVE ROKEBERG stated that he agreed with the statement of
Mr. Huber regarding the whole definition of "substantial change"
would be up to the judiciary, and thought he was satisfied with
that.
MR. REGES stated that with the last exchange with Representative
Porter, he would submit that whether or not the bill was
retroactive turned on when a cause of action accrued, as the
language was used on page 3, line 20. He stated that obviously,
there were various arguments as to when a cause of action accrued
if the facility was dormant today.
Number 2131
DICK BISHOP advised members he was the Executive Director of the
Alaska Outdoor Council, which was a statewide umbrella organization
of outdoor user groups interested in sound conservation and fair
allocation of use. He confirmed that the Council was in support of
the bill and felt it was an important piece of legislation.
MR. BISHOP expressed his appreciation of the committee's efforts in
reviewing the bill very carefully. He pointed out that he was also
trying to think of a situation that could be a real life situation,
and was startled to realize that he was a real life situation in
terms of the shooting range that he had on his own property. Mr.
Bishop advised members that years ago when he bought part of a
homestead there was a hole in the woods which became a shooting
range and had been ever since. He stated that was 30 years ago,
and meanwhile, the area had grown in terms of becoming a
residential area, and it was entirely conceivable that at some
point in time a legal objection might be raised to his family's
shooting on that land. Mr. Bishop stated that the protection
provided in the bill would be very helpful because it was an
important alternative for people to be able to continue to pursue
a lifestyle that included shooting and related matters.
MR. BISHOP advised members that he was particularly interested in
the Department of Law noting the prevailing opinion review, or
posture of the courts with regard to nuisance actions, and that
they generally did not like to preclude them somehow. Mr. Bishop
stated that given the characteristics of how that was described, he
felt made it all the more important that SB 8 pass, and that the
judicial system be obligated to follow a law that was enacted in
the best interest of the general public, rather than leaving the
opportunity for the bench to interpret vagary of the law as they
saw fit, which might not work to the benefit of the general public.
Mr. Bishop urged that the committee pass SB 8 and help protect the
interests of the public.
Number 2389
CHAIRMAN GREEN noted that he had asked a lot of questions, and far
be it for him to try to impede something like the intent of the
legislation because in another life, in "Baha, Oregon"
(California), there was an oil field in the Baldwin Hills where
they had a big hollywood sign and finally a gravel road became a
paved road, then houses moved in on the other side of the road
which then imposed all kinds of restrictions to the operation of
the oil field. He stated that, to him, was an irritation.
Chairman Green advised members that he certainly supported the
kinds of activities reflected in the bill; however, he did not want
to have someone come in and buy property and then get hammered
because of legislation passed in that three year period.
TAPE 97-57, SIDE 1
Number 000
REPRESENTATIVE BUNDE moved to report SB 8 am out of committee with
attached fiscal note and individual recommendations.
REPRESENTATIVE JAMES objected for the purpose of making a
statement. She advised members she thought it was extremely
important to establish the fact that moving the bill forward did,
in fact, make a special exemption for airports and shooting ranges,
which was its intent, and her intent for sure, so there was no
doubt what the committee did. With that, Representative James
removed her objection.
REPRESENTATIVE ROKEBERG stated that given his background in real
estate development, he believed that Alaskans should do things the
way Alaskans want them done, and notwithstanding the fact that the
"coming to the nuisance" doctrine may be barred by SB 8, he fully
supported it because the people's way of life in Alaska, which was
unique in many instances, should be protected.
REPRESENTATIVE BUNDE called for the question. There being no
objection, SB 8 am was reported out of committee.
ADJOURNMENT
There being nothing further to come before the committee, Chairman
Green adjourned the meeting at 2:45 p.m.
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