02/09/2009 02:09 PM House JUD
| Audio | Topic |
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| Start | |
| HB49 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 9, 2009
2:09 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
MEMBERS ABSENT
Representative Lindsey Holmes
COMMITTEE CALENDAR
HOUSE BILL NO. 49
"An Act relating to the prohibition of the exercise of the power
of eminent domain against a recreational structure for the
purposes of developing a recreational facility or project."
- MOVED CSHB 49(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 49
SHORT TITLE: EMINENT DOMAIN: RECREATIONAL STRUCTURES
SPONSOR(S): REPRESENTATIVE(S) JOHNSON
01/20/09 (H) PREFILE RELEASED 1/9/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) JUD
02/09/09 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE CRAIG JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 49.
CAROLE WINTON
Alaska Association of Realtors (AAR)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 49.
ERROL CHAMPION, Associate Broker
Coldwell Banker Race Realty
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 49.
DON BULLOCK, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: As the drafter, responded to questions
regarding HB 49.
ACTION NARRATIVE
2:09:36 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 2:09 p.m. Representatives Ramras,
Dahlstrom, Coghill, and Gruenberg were present at the call to
order. Representatives Gatto and Lynn arrived as the meeting
was in progress.
HB 49 - EMINENT DOMAIN: RECREATIONAL STRUCTURES
2:09:45 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 49, "An Act relating to the prohibition of the
exercise of the power of eminent domain against a recreational
structure for the purposes of developing a recreational facility
or project."
2:10:06 PM
REPRESENTATIVE CRAIG JOHNSON, Alaska State Legislature, sponsor,
relayed that legislation similar to HB 49 passed the House last
year, and that HB 49 does not contain the language that the
Senate disapproved of in that past legislation. He recounted
that the provision of Alaska statute prohibiting the taking of
someone's personal residence for recreational purposes via the
exercise of eminent domain was engendered by [the ruling in the
U.S. Supreme Court case, Kelo v. City of New London]. Because
many Alaskans build a second home for recreational purposes but
intend to live in that second home full time upon retirement,
HB 49 would ensure that that same protection against the
exercise of eminent domain applies to an individual landowner's
recreational structure. Nothing in HB 49, he assured the
committee, would preclude the exercise of eminent domain for
"traditional" purposes. He offered his belief that taking
someone's home or recreational property for recreational
purposes doesn't rise to the level of being in the best public
interest.
REPRESENTATIVE JOHNSON, in response to a question, explained
that the language the Senate objected to would have allowed the
Department of Natural Resources (DNR) to inventory fishing
streams and provide replacements, adding that although he'd
supported the inclusion of that language at the time, its
inclusion resulted in the legislation languishing in the Senate,
and so he would, therefore, oppose any future amendment to
reinsert it. He indicated that HB 49 defines "recreational
structure" to mean a permanent structure that is used by the
owner of or beneficiary of a trust holding legal title to the
structure as a dwelling for seasonal recreational purposes.
REPRESENTATIVE GATTO asked whether the bill would preclude the
exercise of eminent domain by utility companies.
REPRESENTATIVE JOHNSON said it would not; HB 49 would only
preclude the taking of a person's recreational structure via the
exercise of eminent domain for the purpose of developing a
recreational facility or project.
2:17:58 PM
REPRESENTATIVE COGHILL, in response to a question, too, observed
that the bill addresses recreational structures intended as
dwellings for seasonal recreational purposes.
REPRESENTATIVE GRUENBERG questioned whether the term,
"recreational facility or project" - as currently used in
existing AS 09.55.240(e) - is already defined, and, if not,
whether it ought to be.
REPRESENTATIVE JOHNSON mentioned that HB 49's proposed
limitation on the exercise of eminent domain for the purpose of
developing a recreational facility or project also applies to
property attached to and within 250 linear feet of an individual
landowner's personal residence or recreational structure. In
response to questions, he relayed his understanding that a
performing arts center would be considered a recreational
facility or project, reiterated the type of taking that would be
precluded by HB 49, offered that he is not aware of any such
taking have occurred in Alaska, and surmised that the real
estate industry in Alaska is in support of HB 49.
REPRESENTATIVE GRUENBERG turned attention to the language on
page 1, line 13, that read, "the owner of or beneficiary of",
and opined that that language reads strangely. Representative
Gruenberg asked Representative Johnson whether he would be
amenable to having the first instance of the word, "of" deleted.
REPRESENTATIVE JOHNSON indicated that as long as it wouldn't
alter the intent of the bill, he wouldn't have a problem with
such a change.
2:26:19 PM
REPRESENTATIVE GRUENBERG, in response to his own earlier
question, observed that AS 09.55.240(h)(5) provides the
following definition:
(5) "recreational facility or project"
(A) means a facility or project, the primary
purpose of which is recreational;
(B) includes a park, trail or pedestrian pathway,
greenbelt, amusement park, fresh water boat harbor,
sports facility, playground, infrastructure, or other
facility related to or in support of an indoor or
outdoor recreational facility or project;
(C) does not include
(i) a highway, sidewalk, or path within the
right-of-way of a highway;
(ii) a path, trail, or lane used as a safe route
to a school program;
(iii) a wayside or rest stop;
(iv) a development, the primary purpose of which
is not recreational, such as a path, trail, or lane
developed to reduce congestion, or to encourage use of
an alternate, gas-saving mode of transportation;
(v) a path or trail to or between villages or
from a village to a facility or resource;
(vi) a stormwater retention or treatment facility
or wetland, habitat, or other acquisition required to
obtain a permit for a highway, airport, or other
public project;
(vii) a taking under AS 19.05.110, 19.05.120, AS
19.22.020, AS 27.21.300, AS 35.20.040, 35.20.050, or
AS 41.35.060;
(viii) a taking not prohibited by law before
January 1, 2007, under AS 41.21; 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 or along
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.
REPRESENTATIVE GRUENBERG characterized this definition as
circular and imprecise.
2:29:37 PM
CAROLE WINTON, Alaska Association of Realtors (AAR), relayed
that the AAR was in support of House Bill 318 that passed the
legislature in 2006, and is now in support of HB 49. It is very
important that Alaskans who own cabins or homes which they
ultimately wish to retire to don't have those homes or cabins
taken for the purpose of a recreational facility or project.
2:30:17 PM
ERROL CHAMPION, Associate Broker, Coldwell Banker Race Realty,
characterized HB 49 as a great bill, and expressed support for
it.
REPRESENTATIVE GRUENBERG disclosed a possible conflict of
interest in that Ms. Winton is his realtor.
MR. CHAMPION, in response to a question, said that how a person
intends to use his/her private property is up to him/her, and so
a person could leave [some] of his/her property undeveloped [and
still be afforded the protection offered by HB 49].
2:33:03 PM
[Following was a brief discussion on a topic unrelated to the
bill before the committee.]
REPRESENTATIVE GRUENBERG asked whether a project "like the
performing arts center" or the Morris Thompson Cultural and
Visitors Center would clearly be considered a recreational
facility or project as defined under AS 09.55.240(h)(5).
2:38:04 PM
DON BULLOCK, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
said he is not familiar with those projects but noted that
sometimes one sees the phrase "cultural or recreational
project", which could include a museum, for example. There was
quite a bit of work that went into crafting the statutory
definition of "recreational facility or project" he explained,
and the definition contains both a list of what is a
recreational facility or project and a list of what isn't;
inclusion of both lists was necessary because of the difficulty
in identifying exactly what a recreational facility or project
is. He also pointed out that the word, "recreational" as used
in the bill's phrase, "seasonal recreational purposes" might
have a broader meaning then it does when used in the phrase,
"recreational facility or project".
MR. BULLOCK, in response to questions, said that in determining
whether the protection afforded by the bill applies, two points
need to be considered: whether the taking of the structure is
for the purpose of developing a recreational facility or project
- if it is not, then the protection afforded by the bill doesn't
apply; and whether the structure being taken is either a
personal residence or a recreational structure - if it is either
type of structure and the taking is for the purpose of
developing a recreational facility or project, then the
protection afforded by the bill does apply. In response to a
further question, he offered his understanding that AS
09.55.240(h)(5) defines the term, "recreational facility or
project" as a unit.
REPRESENTATIVE GRUENBERG added his understanding that
"recreational facility or project" is considered a term of art,
and that the courts would rely on the aforementioned statutory
definition. He remarked that it is still unclear whether the
performing arts center or the Morris Thompson Cultural and
Visitors Center would be considered a recreational facility or
project as defined under AS 09.55.240(h)(5).
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 49.
2:46:09 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
delete the word "of" from page 1, line 13, after the word
"owner". There being no objection, Amendment 1 was adopted.
2:46:34 PM
REPRESENTATIVE DAHLSTROM moved to report HB 49, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal note. There being no objection,
CSHB 49(JUD) was reported from the House Judiciary Standing
Committee.
2:46:53 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:47 p.m.
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