Legislature(2003 - 2004)
04/14/2004 01:34 PM Senate CRA
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ALASKA STATE LEGISLATURE
SENATE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
April 14, 2004
1:34 p.m.
TAPE (S) 04-10
MEMBERS PRESENT
Senator Bert Stedman, Chair
Senator Thomas Wagoner, Vice Chair
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Gary Stevens
COMMITTEE CALENDAR
SENATE BILL NO. 132
"An Act removing the Old Minto townsite from the Minto Flats
State Game Refuge; and authorizing the Department of Natural
Resources to convey certain land at the historic Old Minto site
to the Minto Village Council."
MOVED CSSB 132(CRA) OUT OF COMMITTEE
SENATE BILL NO. 382
"An Act relating to replat approval; relating to the platting of
right-of-way acquired through eminent domain proceedings; and
providing for an effective date."
MOVED CSSB 382(CRA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 132
SHORT TITLE: MINTO FLATS GAME REFUGE & TOWNSITE
SPONSOR(s): SENATOR(s) LINCOLN
03/10/03 (S) READ THE FIRST TIME - REFERRALS
03/10/03 (S) CRA, RES
04/07/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
04/07/04 (S) -- Meeting Canceled --
04/14/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
BILL: SB 382
SHORT TITLE: EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES
SPONSOR(s): TRANSPORTATION
03/31/04 (S) READ THE FIRST TIME - REFERRALS
03/31/04 (S) TRA, CRA
04/01/04 (H) TRA AT 1:30 PM CAPITOL 17
04/01/04 (H) -- Meeting Postponed to Fri, 4/2/04 --
04/02/04 (S) TRA RPT CS 3DP 2NR SAME TITLE
04/02/04 (S) DP: WAGONER, COWDERY, THERRIAULT;
04/02/04 (S) NR: LINCOLN, OLSON
04/14/04 (S) CRA AT 1:30 PM FAHRENKAMP 203
WITNESS REGISTER
Janet Burleson-Baxter
Legislative Liaison
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Commented on SB 132
Matt Robus
Director, Division of Wildlife Conservation
Department of Fish & Game
PO Box 25526
Juneau, AK 99802-5226
POSITION STATEMENT: Stated that department has no objection to
SB 132
Richard Schmitz
Aide to Senator John Cowdery
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 382
Peter Putzier
Assistant Attorney General, Transportation
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on SB 382
ACTION NARRATIVE
TAPE 04-10, SIDE A
CHAIR BERT STEDMAN called the Senate Community and Regional
Affairs Standing Committee meeting to order at 1:34 p.m. Present
were Senators Wagoner, Elton, Lincoln, and Chair Stedman.
Senator Gary Stevens was excused for medical reasons.
SB 132-MINTO FLATS GAME REFUGE & TOWNSITE
CHAIR BERT STEDMAN announced SB 132 to be up for consideration.
He asked for a motion to adopt the committee substitute (CS) for
discussion purposes.
SENATOR THOMAS WAGONER made a motion to adopt \I version CS for
SB 132 dated 4/6/04. There being no objection, it was so
ordered.
CHAIR STEDMAN asked Senator Lincoln to introduce the bill.
SENATOR GEORGIANNA LINCOLN explained that \I version of the bill
contains several changes, the largest of which is adding
language from AS 38.05.125 to the bill beginning on page 2, line
16 rather than simply referring to the section. The other change
was to add the legislative findings on page 1, line 7-11.
The bill would transfer about 32 acres of land, which is the Old
Minto Village Site to the Native village of Minto. The old
village site was established in the early 1900s, but in 1971 the
state forced the relocation because of flooding and erosion.
Although the village was moved about 40 miles north, villagers
continue to use the old site for camping and other cultural
activities. The church, cemetery, community hall and store are
still located at the old site and the Interior Athabascan
Cultural Heritage Education Institute holds a lease on the site
until 2052 for a youth encampment.
SENATOR LINCOLN advised that Chief Andy Jimmy from Minto was on-
line to testify. "It was Minto that wanted to have the 32 acres
transferred over to their village so they would have some
control over it and to be able to use it as an educational
site," she said. She and her staff have worked with DNR
extensively and they are supportive of the transfer.
Finally, she noted that the work draft fiscal note is zero.
However, there will be a change in the analysis section. It says
that DNR will sell the land, which is not the case. There was
never any intent for the land to be sold to the village. The
land reverted to DNR and then became part of the Minto Flats
State Game Refuge in 1988. Under SB 132, the land will revert to
the Village of Minto.
SENATOR THOMAS WAGONER asked whether the land that the village
was relocated to was a Native allotment or state land.
SENATOR LINCOLN replied they relocated to a Native allotment.
SENTOR KIM ELTON remarked that he was surprised at all the
reservations that the state wanted and questioned whether the
state had the same rights of access delineated on page 2 prior
to the 1971 relocation.
SENATOR LINCOLN said the state did have all those easements
outlined on page 2 prior to the 1971 relocation because the land
was an established town site and not a reservation.
CHAIR STEDMAN asked how far apart the two sites are.
SENATOR LINCOLN said the Village of Minto is located about 40
miles north of Old Minto. Old Minto is only accessible by river
while the new site is accessible by road and looks out over
Minto Flats. It's on a hillside and is in no danger of flooding.
CHAIR STEDMAN opened public testimony.
He called a brief at-ease at 1:45 pm due to teleconference
equipment difficulty. The difficulty was not resolved and no
teleconference testimony could be taken.
JANET BURLESON-BAXTER, legislative liaison for DNR, said she was
available to answer questions, but the technical experts
intended to participate via teleconference.
She affirmed that the language on page 2, (b) is standard
conveyance language and the word "sell" in the draft fiscal note
should be changed to "convey."
CHAIR STEDMAN called a brief at-ease at 1:51 pm to check on the
teleconference equipment.
MATT ROBUS director of the Division of Wildlife Conservation,
Department of Fish and Game (ADF&G), said he was available for
questions and advised that ADF&G has no objection to the
proposal. There is dual agency management of the land because
ADF&G is the refuge manager under the refuge management plan
while DNR is the state's land manager. But in terms of refuge
management, the transfer makes perfect sense.
There were no further questions or testimony. [The
teleconference equipment continued to give problems.]
SENATOR WAGONER made a motion to move CSSB 132(CRA) from
committee with individual recommendation and attached fiscal
note. There being no objection, it was so ordered.
SENATOR ELTON told the Chair he assumed that there would be a
corrected fiscal note.
CHAIR STEDMAN agreed saying it would reflect conveyance of the
land rather than sale of the land.
CHAIR STEDMAN called an at-ease at 1:53 pm then reconvened and
reported to everyone who was listening online and was unable to
communicate that CSSB 132(CRA) moved from committee.
SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES
CHAIR BERT STEDMAN announced SB 382 to be up for consideration
and noted that there was a committee substitute.
SENATOR THOMAS WAGONER made a motion to adopt CSSB 382, \H
version as the working document. There being no objection, it
was so ordered.
RICHARD SCHMITZ, aide to Senator John Cowdery, stated that the
representatives from the Department of Law and the Department of
Transportation and Public Facilities (DOT/PF) were better able
to explain the bill.
PETER PUTZIER, assistant attorney general representing the
Department of Transportation & Public Facilities, explained that
the bill is the result of Anchorage court cases regarding
eminent domain. One case concerned the Kenai River Bridge and
the other the C Street Project in Anchorage.
The court challenges suggested that DOT didn't have condemnation
authority based on an interpretation of the eminent domain
statute, AS 09.55.275. The argument is that:
In 1975 when the statute was passed, it was the
legislative intent back then to require DOT or
municipalities when they acquire right-of-way to go
through the exact same subdivision approval process
that a developer would have to go through even though
the two processes are, as you can imagine, quite
distinct. On the one hand you've got a developer who
is going to be putting interior streets, lighting,
sewer and so on. On the other hand you've got this
right-of-way process that involves odd shaped parcels
where you don't have any of those same considerations.
Kenai, Municipality of Anchorage, Matanuska-Susitna
Borough, I believe the City and Borough of Juneau
although I'm not sure, most of these communities have
a specific ordinance particular to the right-of-way
acquisition process and it says to DOT or the
municipality 'If you want preliminary replat approval
follow this process particular to the right-of-way
acquisition.' And the argument that's being made in
court is that that process set up in these different
towns is unconstitutional and contrary to legislative
intent back in 1975 in AS 09.55.275. This bill is
meant to correct that.
Sitka, the City and Borough of Juneau, Ketchikan, Kodiak, the
Matanuska Susitna Borough, and the Municipality of Anchorage
have been contacted regarding their views on the issue. The City
and Borough of Juneau raised a concern that the initial draft
was ambiguous regarding the scope of regulatory power given to
DOT for drafting regulations to address this issue. As a result,
they clarified that DOT's intent is specifically to eminent
domain and the right-of-way acquisition process. There is no
intent for DOT to venture into general zoning and subdivision
lines. The \H version is meant to restrict what DOT may do by
regulation and all but Anchorage have responded and agreed with
the changes. The Municipality of Anchorage is still circulating
the draft, "but they are keenly aware of this issue because
they've been litigating it now for many months."
CHAIR STEDMAN referred to the two lawsuits and commented that if
the plaintiffs prevail, then:
The state would be forced to go through a replat like
at a regular municipality or city, which would be
going through the planning and zoning commission -
having hearings and then going on up to the city
council or the assembly for final approval - subject
to all appeals in that process. Is that correct?
MR. PUTZIER said that's true, but DOT is already required to go
through whatever process the municipality has. The real issue is
the allegation that the process that these different
municipalities have is unconstitutional in that they deviate
from the normal subdivision process, which entails a lengthy
hearing process that is subject to appeal rights as they apply
to local zoning standards. Typically, the process for right-of-
way acquisition is a bit more streamlined.
SENATOR ELTON said it's clear that this gets to some of the
statutory issues, but he didn't think it was a fix for the
remnant constitutional issue. The bill has a retroactive
effective date, but if the constitutional issues aren't
addressed then the points raised by the lawsuits are still out
there.
MR. PUTZIER thought that the intent section, combined with
deleting the last sentence of AS 09.55.275, would address the
points raised in court.
I think striking that last sentence is a clear
indication from the Legislature that it was never
intended to have an identity of process put in place
such as being suggested. Back in '75 when the statute
was put in passed, the concern was that DOT was doing
these projects without consulting with municipalities.
I think the Legislature meant, the intent was to make
DOT consult and submit their plans to municipalities
for comment and DOT has been doing that and it's been
working out relatively harmoniously with
municipalities across the state. The arguments in
court, I think, just take the intent too far when you
say the Legislature was trying to demand a particular
process. It's that problem that we're trying to
correct right now.
SENATOR ELTON asked if that means that the constitutional
problem goes away with the change in statute.
MR. PUTZIER hesitated and said he wasn't sure there was a
constitutional issue.
And I'm sorry if I misspoke earlier. There's an
argument being made that the ordinances violate the
statute because the statute, the allegation is being
made, is a demand for a particular process. If we
change the statute, I think that would solve the
problem or the argument of the ordinances being in
conflict with the statute. DOT can only conduct its
eminent domain proceedings if it strictly abides by
the requirements of the statutes.
SENATOR ELTON acknowledged that he might have misheard, but
earlier in the presentation he though that he heard mention of
unconstitutional and contrary to statute. He then said he would
like to hear from the Department of Law about making this
retroactive, which would wipe out the lawsuits.
MR. PUTZIER replied:
There could be challenges made to that. There is
significant case law on it and as long as the
Legislature - the general law is - as long as the
Legislature clearly expresses its intent to make it
retroactive, and if there is no improper purpose
behind it, that retroactive legislation has been
upheld under a number of circumstances. There are,
theoretically, challenges that could be leveled, but
what this bill does is good. [It should not only]
address the existing litigation, but also has benefits
obviously five, ten years down the road by clarifying
it now.
SENATOR LINCOLN asked where the last, [\H version], committee
substitute originated.
CHAIR STEDMAN said it came from the sponsor's office
[Transportation Committee].
SENATOR LINCOLN said she asked because the changes address some
of the concerns she expressed in the Transportation Committee.
"Changing the municipal authority from a may to a shall on page
3, line 7, I think is a great addition and the other two parts
as well where it includes the rights of municipalities to
regulate the remnant parcels and the other whole new section
that was added in Section 3"
SENATOR WAGONER asked that John MacKinnon with DOT come forward
and tell him what the fiscal impact would be if these projects
were delayed by at least a year.
JOHN MACKINNON, deputy commissioner of transportation with the
Department of Transportation and Public Facilities, said there
would be considerable additional expenses if the projects were
delayed. "Every time a project comes up, if somebody wants to
delay the project there is the cost of litigation and whenever
we hire the AG's office - they don't come cheap."
SENATOR WAGONER asked what the cost is in the Kenai River Bridge
in Soldotna and guesstimated that it would between $28 and $30
million.
MR. MACKINNON said that is a $28 million project and it's ready
to advertise in the middle of May. "A delay of a year could
easily be a couple of hundred thousand dollars, easily."
SENATOR WAGONER said he wanted that on the record.
SENATOR LINCOLN asked if Fairbanks had been given the
opportunity to review and state their views on the bill.
MR. MACKINNON told her that Fairbanks hadn't responded.
SENATOR ELTON commented that Anchorage and Fairbanks have over
half the state's population and because of that, he would hope
that they would submit their comments to the committee before
the bill goes to the floor.
MR. PUTZIER added that the City and Borough of Juneau also
wanted him to state the following for the record:
That DOT prior to enacting any regulations would
coordinate with and afford the opportunity to all
affected platting authorities to provide comments on
the regulations. DOT certainly has no objection to
that and, in fact, welcomes the opportunity to work
together with the platting authorities in drafting
those regulations.
There was no further testimony.
SENATOR WAGONER made a motion to move CSSB 382(CRA) from
committee with individual recommendations and attached fiscal
note. There being no objection, it was so ordered.
CHAIR STEDMAN adjourned the meeting at 2:15 pm
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