Legislature(1993 - 1994)
03/15/1994 09:07 AM Senate CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE COMMUNITY & REGIONAL AFFAIRS
March 15, 1994
9:07 a.m.
MEMBERS PRESENT
Senator Randy Phillips, Chairman
Senator Robin Taylor, Vice Chairman
Senator Loren Leman
MEMBERS ABSENT
Senator Al Adams
Senator Fred Zharoff
COMMITTEE CALENDAR
SENATE BILL NO. 291
"An Act relating to including all regions in the state in an
organized borough or unified municipality; and providing for an
effective date."
SENATE BILL NO. 355
"An Act relating to errors in surveys of land."
CS FOR HOUSE BILL NO. 398(RES)
"An Act relating to conveyance of certain land to municipalities."
PREVIOUS SENATE COMMITTEE ACTION
SB 291 - See Community & Regional Affairs minutes dated
2/22/94, 3/1/94, 3/10/94.
SB 355 - No previous action to record.
HB 398 - No previous action to record.
WITNESS REGISTER
Senator Dave Donley
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 291
Mike Walleri, General Counsel
Tanana Chiefs Conference
Fairbanks, AK
POSITION STATEMENT: Voiced concerns on SB 291
Bonnie Jenkins
P.O. Box 149
Tok, AK 99780
POSITION STATEMENT: Has concerns with SB 291
Glenn Marunde
Box 192
Tok, AK 99780
POSITION STATEMENT: Has concerns with SB 291
Paul Smith
Box 559
Tok, AK 99780
POSITION STATEMENT: Opposes SB 291
Mayor Albert Dick
City of Hoonah
P.O. Box 360
Hoonah, AK 99829
POSITION STATEMENT: Opposes SB 291
Dan Bockhorst, Staff to Local Boundary Commission
Department of Community & Regional Affairs
333 W. 4th Ave., Suite 220
Anchorage, AK 99501-2341
POSITION STATEMENT: Offered information on SB 291
Senator Steve Rieger
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 355
George Newsham, Assistant Municipal Attorney
Municipality of Anchorage
P.O. Box 196650
Anchorage, AK 99519-6650
POSITION STATEMENT: Testified in support of SB 355
Dave Kamrath, Staff to Representative Harley Olberg
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Offered information on CSHB 398(RES)
Harry Williams, City Manager
City of Whittier
P.O. Box 608
Whittier, AK 99693
POSITION STATEMENT: Supports CSHB 398(RES)
Ron Swanson, Director
Division of Lands
Department of Natural Resources
P.O. Box 107005
Anchorage, AK 99510-7005
POSITION STATEMENT: Supports CSHB 398(RES)
John Johnson
Cordova, AK
POSITION STATEMENT: Supports SCS CSHB 398(CRA)
ACTION NARRATIVE
TAPE 94-21, SIDE A
Number 001
The Senate Community & Regional Affairs Committee was called to
order by Chairman Randy Phillips at 9:07 a.m. He brought SB 291
(BOROUGH INCORPORATION & ANNEXATION) before the committee and
stated testimony would be taken over the Legislative Teleconference
Network.
Number 010
MIKE WALLERI, General Counsel, Tanana Chiefs Conference, testifying
from Fairbanks and speaking to the proposed amendments to SB 291,
said of the five amendments, four of them didn't seem to be any
problem. However, amendment #5 proposes that if the majority of
people in an area disapprove borough incorporation, 15 percent of
the voters can present a petition to the Local Boundary Commission,
which would then propose the incorporation to the Legislature. He
said this would raise the constitutional question about maximum
local participation. If the majority of people in an area have
rejected the idea of borough incorporation, the notion that 15
percent can then override that with a petition to the Boundary
Commission seems to be counter to the notions of democracy and
would raise severe constitutional questions as to whether or not
the local participation was being maximized as required by the
Alaska Constitution. He suggested that rather than adopting
amendment #5, deleting subsection (4) paragraph (d) in its
entirety.
Number 100
BONNIE JENKINS, testifying from Tok, also voiced concern with
subsection (d) in Section 4, because it would allow the majority of
voters to be overruled by the Legislature by 15 percent of the
voters presenting a petition to the Local Boundary Commission. She
also questioned the cost and where the money would come from to
incorporate as a borough.
Number 135
GLENN MARUNDE, testifying from Tok, stated he has mixed emotions
with SB 291; there are parts of the bill that are long overdue and
there are parts that are of great concern to him. He suggested the
intent of SB 291 should be changed from eliminating the unorganized
borough to providing a means to eliminate or reduce disincentives
and enhance incentives for the formation of boroughs. He also
suggested deleting subsection (d) in Section 4. He questioned if
sovereign Native villages in a newly organized borough would be
exempt from participating in borough government.
SENATOR DONLEY answered that he was not aware of any purely
sovereign villages in Alaska. SENATOR TAYLOR added that the
important thing is that any improved lands that are Native lands
and that would fall within this jurisdiction would be taxable.
Number 206
PAUL SMITH, testifying from Tok, voiced his concern over allowing
the Legislature to overturn a vote. He stated it was his right,
and if the Legislature continues in this direction, there will be
a lawsuit.
Number 230
MAYOR ALBERT DICK, testifying from Hoonah, informed the committee
that a letter from the City of Hoonah has been sent to the
committee stating that they do have some opposition to SB 291.
Number 245
There being no further witnesses to testify on SB 291, SENATOR
RANDY PHILLIPS stated the committee would take up consideration of
the proposed amendments to the bill. He brought Amendment No. 1
before the committee and said it was in response to a concern
raised by people in Tok. SENATOR DONLEY stated he had no objection
to the amendment.
Number 248
SENATOR LEMAN moved that Amendment No. 1 be adopted. Hearing no
objection, the motion carried.
AMENDMENT NO. 1
Page 1, lines 4 - 8: Delete all material and insert the following:
* Section 1. LEGISLATIVE PURPOSE. It is the purpose of the
Act to eliminate the unorganized borough by including all regions
in the state in an organized borough or unified municipality in
accordance with Article X, Section 3 of the Constitution of the
State of Alaska.
Number 255
SENATOR RANDY PHILLIPS brought Amendment No. 2 before the
committee. The amendment will give more representation for the
unorganized area by providing that one person from each of the four
judicial districts in the unorganized areas would be a member of
the committee on municipalities. SENATOR DONLEY stated he had no
objection to the amendment.
Number 258
SENATOR LEMAN moved that Amendment No. 2 be adopted. Hearing no
objection, the motion carried.
AMENDMENT NO. 2
Page 2, line 8: After, "Act (43 U.S.C. 1601 - 1628)":
insert: "from each of the four Judicial
Districts;"
Number 260
SENATOR RANDY PHILLIPS brought Amendment No. 3, which was suggested
by a Tok resident, before the committee. DAN BOCKHORST, Staff to
the Local Boundary Commission, explained that the language in the
amendment would extend the availability of the report to all
unincorporated communities in the unorganized boroughs, as are
defined in the state statutes for revenue sharing purposes.
SENATOR DONLEY stated he had no objection to the amendment.
Number 278
SENATOR LEMAN moved that Amendment No. 3 be adopted. Hearing no
objection, the motion carried.
AMENDMENT NO. 3
Page 2, line 20: After "municipalities" insert "and to all
unincorporated communities as defined by AS
29.60.140(b)."
Number 285
SENATOR RANDY PHILLIPS brought Amendment No. 4 before the
committee. The amendment was in response to a concern brought up
at a previous hearing by residents of Tok. SENATOR DONLEY stated
he had no objection to the amendment.
Number 290
SENATOR TAYLOR moved that Amendment No. 4 be adopted. Hearing no
objection, the motion carried.
AMENDMENT NO. 4
Page 2, line 30: After "least" delete "one public hearing" and
insert in its place "two public hearings at
different locations"
Number 301
SENATOR RANDY PHILLIPS brought Amendment No. 5 before the
committee. SENATOR DONLEY stated the amendment was potentially
unconstitutional, and that it usurps the purpose of the bill. It
is a decision that the Legislature is in charge of now as the
acting assembly for the unorganized boroughs.
AMENDMENT NO. 5
Page 3, line 16: After "may" insert: "upon receipt of a petition
signed by 15 percent of the number of voters who
voted in the last general election in the region"
Page 3, line 17: After "the" delete "Eighteenth" and insert
"Nineteenth" in its place
There was no motion to adopt Amendment No. 5.
Number 314
SENATOR LEMAN moved the following Amendment No. 6 be adopted.
Hearing no objection, the motion carried.
AMENDMENT NO. 6
Page 3, line 17: After "the" deleted "Eighteenth" and insert in
its place "Nineteenth"
SENATOR TAYLOR offered the following Amendment No. 7, and
explained that the amendment would change this from a negative
action taken by the Legislature to an affirmative action taken by
the Legislature within the same time frame.
AMENDMENT NO. 7
Page 3, line 18: Delete "may" and insert "shall"
Change "disapproved" to "approved"
Page 3, line 20: Delete "not" and change "disapprove" to
"approved"
Number 350
DAN BOCKHORST said the department is not stating that the amendment
as proposed by Senator Taylor would be unconstitutional, however,
he pointed out that there are provisions that exist in Article 10,
Section 12 of the constitution which conform precisely to the
manner in which the bill is currently worded. SENATOR PHILLIPS
added that Tam Cook, Legislative Legal Counsel, stated verbally
that this change could possibly be unconstitutional.
SENATOR TAYLOR moved the adoption of Amendment No. 7. SENATOR
LEMAN objected. The roll was taken with the following result:
Senator Taylor voted "Yea" and Senators Leman and Phillips voted
"Nay." The Chairman stated the amendment failed.
There being no further amendments on SB 291, SENATOR RANDY PHILLIPS
asked for a motion on the bill.
Number 386
SENATOR LEMAN moved that SB 291, as amended, be passed out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
Number 400
SENATOR RANDY PHILLIPS brought SB 355 (ADJUSTMENTS FOR DEFECTIVE
SURVEY) before the committee as the next order of business.
SENATOR STEVE RIEGER, prime sponsor of SB 355, explained that a
problem relating to defective surveys of land, one which was in his
district, was brought to his attention by some Anchorage assembly
members. SB 355 was crafted to address the problem statewide where
there is a manifestly defective survey.
SB 355 provides that a person or a municipality, upon the
resolution of a municipality, can bring an action in court with a
proposed replat. The court can direct a survey and actually order
the replat in accordance with the proposal.
Senator Rieger pointed out that the language in the bill is
borrowed from existing statutory language regarding earth slides
changing land boundaries, language which was enacted after the 1964
earthquake.
Number 422
SENATOR LEMAN asked if Senator Rieger has received any comments on
the bill from the Alaska Society of Professional Land Surveyors.
ANN RINGSTAD, staff to Senator Rieger, responded that Patrick
Callen has talked to her about the problem, and he has said that
the people in his organization support the concept of the bill and
that they will probably come up with a letter stating their
support. She added that Mr. Callen agrees that the problem must be
solved.
SENATOR LEMAN commented that his understanding is that when a
monument is placed, even if it is misplaced, that's where it is,
and this legislation seems to run counter to that. SENATOR RIEGER
said the intent is that this bill would trigger only when the
survey was manifestly off.
Number 478
SENATOR TAYLOR said there are surveys all over this country that
are manifestly out of whack, and his concern about this is that it
may open up a variable Pandora's Box. He directed attention to
paragraph (4) on page 4, and asked for an explanation of the
language "... parcels or lots that are not found to be materially
incorrect." SENATOR RIEGER responded that he had requested that
language so that if a parcel of land is being resurveyed a distance
away from an individual's property, it shouldn't have to affect
that individual's property. Also, part of the thought in the bill
is that this is not an automatic process. There is room for
discretion because it kicks to a judicial process where there
should be someone exercising some discretion.
Number 530
GEORGE NEWSHAM, Assistant Municipal Attorney, Municipality of
Anchorage, spoke to two subdivisions in the Municipality of
Anchorage that have been incorrectly surveyed. The current statute
allows for a surveyor to correct his own survey within two years of
filing the plat, but the original surveyor is now unavailable and
the time period has long since passed within which to file a
corrected plat on these two subdivisions. He said what they are
looking for is an ability to try to make sure that a subdivision
that is badly surveyed, that is basically incomprehensible to a
surveyor or to somebody who is doing some planning for the
municipality or the state to have an opportunity to correct it so
that everybody knows exactly what they have.
Mr. Newsham referred to the language in paragraph 4 on page 4, and
said it does negate some of that authority of the judge, and that
his concern is that the Legislature can impose some guidelines as
far as what is to control the judge's discretion.
Mr. Newsham said the municipality is looking for some legislative
help to solve a problem that occurs throughout the state and to
make sure that the Superior Court is given the authority to hear
one case where all parties are in the court instead of being there
separately.
TAPE 94-21, SIDE B
Number 001
SENATOR RIEGER said that one of the reasons for having the language
"... or with the consent of the owner" in paragraph (4) is so that
there would be an escape valve if its clear that its even in that
owner's best interest to have different plat lines than what the
actual survey shows. He asked Mr. Newsham if that clause
addresses his concern on that new paragraph (4). MR. NEWSHAM said
it may, but the question he would raise is whether or not the
person's property that has been built over has to give their
consent. He said it would solve some of his concern if the
legislation would indicate who the actual person is that you need
to gain consent from.
Number 035
SENATOR TAYLOR asked if we're going to bring all of these people in
to court to resolve a case, who is going to end up paying the
attorney fees and costs. MR. NEWSHAM answered that SB 355 is part
of a package that the municipality has put together. One of the
parts of the package is the legislation that actually gives the
court the authority to change. The second part of the package is
that they have amended their municipal code to allow for a survey
improvement district such that the cost of a survey, and resurvey
if necessary, and replatting will be born by the property owners if
the survey improvement district is formed. If it is not formed,
they would not go forward.
Number 055
SENATOR RIEGER pointed out that the survey improvement district is
because of the policy of the municipality and the bill doesn't
require that. Section 11 of the bill just gives the court the
ability to assess the costs, and, in the case of Anchorage where
there is a survey improvement district, the court would obviously
say this is where the cost should be born.
Number 085
There being no further testimony on SB 355, SENATOR RANDY PHILLIPS
asked for the pleasure of the committee.
SENATOR TAYLOR moved that SB 355 be passed out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
Number 090
SENATOR RANDY PHILLIPS brought CSHB 398(RES) (LAND CONVEYED TO &
FROM MUNICIPALITIES) before the committee as the final order of
business.
DAVE KAMRATH, staff to Representative Harley Olberg, said the
legislation relates to conveyance of certain lands to
municipalities.
Mr. Kamrath outlined four conditions that would have to be met in
order for municipalities, home rule, first and second class cities
and boroughs to be able to apply for tide and submerged land and to
have them conveyed. He added that this land would only be conveyed
for development purposes and land couldn't be tied up for future
projects down the road.
Number 118
HARRY WILLIAMS, City Manager of Whittier, testifying from Whittier
in support of HB 398, said he believes it meets all of the criteria
for good legislation. It not only solves some problems, but also
provides potential economic development opportunities for all 16
boroughs of the state and for at least one first class city and 49
second class cities.
Number 145
RON SWANSON, Director, Division of Lands, Department of Natural
Resources, stated the department's support for HB 398. He said he
has worked on the legislation with Bob Walsh of the Department of
Community & Regional Affairs and that department supports it as
well.
Number 173
DAVE KAMRATH informed the committee that Section 1 of the bill
deals with a current situation in Skagway. Originally there was a
dike built and land was filled inside the dike and developed, with
even a school being built on the property. The city did not have
clear title to this land to begin with and the title for subsequent
private property owners is also clouded. Paragraph 11 in Section
1 allows the director of the Division of Lands the discretion to
quitclaim land to a municipality to correct past errors and
omissions.
Number 195
JOHN JOHNSON of Cordova said he is a private land owner out of
Cordova, and when building his home, he encroached a small corner
of his house on state tidelands. He was advised that perhaps his
problem could be addressed through an amendment in HB 398. Right
now there is no solution that addresses any kind of private
encroachment on state lands.
Number 221
SENATOR TAYLOR commented that the state has the ability to acquire
those tidelands, and he asked if there was some reason the state
does not wish to convey tidelands to the city. RON SWANSON said
this particular piece of legislation will allow them to convey the
tidelands to the City of Cordova, or any other city, and then the
city can deal with the private owner. They could lease it to the
private land owner, but not sell it to him. He said that we are
dealing with public trust lands and they specifically made clear
that that conveyance could not go on.
Number 245
SENATOR TAYLOR said he wanted to amend the bill to provide the
cities the ability to sell these parcels of tidelands that have
been encroached on by the private land owner so that the owner can
get a quitclaim deed rather than just leasing it. He then offered
the following amendment to CSHB 398(RES):
Page 4, line 27: After the word "may" delete "execute leases" and
insert "convey by lease or sale"
Number 412
SENATOR LEMAN asked if making this change would be consistent with
Title 38. RON SWANSON answered that it would be consistent with
Title 38. Right now he cannot convey any tidelands except for
municipalities formed previous to 1964.
Number 440
After brief discussion on the amendment, SENATOR TAYLOR moved the
amendment to page 4, line 27. Hearing no objection, the Chairman
stated the amendment was adopted and would be incorporated into a
Senate CS.
Number 450
SENATOR LEMAN moved that SCS CSHB 398(CRA) be passed out of
committee with individual recommendations. Hearing no objection,
it was so ordered.
There being no further business to come before the committee, the
meeting was adjourned at 10:29 a.m.
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