Legislature(1993 - 1994)

03/15/1994 09:07 AM CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              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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