Legislature(2003 - 2004)

04/14/2004 01:34 PM CRA

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