Legislature(2001 - 2002)
02/12/2002 08:12 AM Senate CRA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA LEGISLATURE
JOINT MEETING
SENATE AND HOUSE COMMUNITY & REGIONAL AFFAIRS COMMITTEES
February 12, 2002
8:12 a.m.
SENATE MEMBERS PRESENT
Senator John Torgerson, Chair
Senator Alan Austerman
Senator Randy Phillips
Senator Pete Kelly
SENATE MEMBERS ABSENT
Senator Georgianna Lincoln
HOUSE MEMBERS PRESENT
Representative Kevin Meyer, Co-Chair
Representative Carl Morgan, Co-Chair
Representative Andrew Halcro
Representative Drew Scalzi
Representative Lisa Murkowski
Representative Gretchen Guess
Representative Beth Kerttula
HOUSE MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Homer Annexation
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
Ms. Mary Jackson
Staff to Senator Torgerson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Explained the provisions of the proposed
resolution
Mr. Kevin Waring
Local Boundary Commission
Department of Community and Economic Development
th
550 W 7 Ave., Ste. 1770
Anchorage, AK 99501-3510
POSITION STATEMENT: Answered questions about the annexation
process
Mr. Dan Bockhorst
Local Boundary Commission
Department of Community and Economic Development
th
550 W 7 Ave., Ste. 1770
Anchorage, AK 99501-3510
POSITION STATEMENT: Answered questions about the annexation
process
ACTION NARRATIVE
TAPE 02-3, SIDE A [Senate CRA tape]
CO-CHAIRMAN JOHN TORGERSON called the joint meeting of the Senate
and House Community & Regional Affairs Committees to order at 8:12
a.m. Present were Senators Kelly, Austerman, Phillips and Torgerson
and Representatives Halcro, Scalzi, Murkowski, Kerttula and Co-
Chairmen Meyer and Morgan. Co-Chairman Torgerson announced that
the purpose of the meeting is to decide what recommendation to make
to the rest of the Legislature about the Homer annexation. He
informed members that inaction on the part of the Legislature means
approval of the annexation. The Legislature cannot amend the
proposed annexation; it is an either/or situation. If the
Legislature disapproves the annexation, it must do so by March 7.
CO-CHAIRMAN TORGERSON informed committee members that committee
staff has drafted a proposed resolution denying the recommendation.
At the request of many committee members, staff also prepared a
packet of information on the pros and cons of annexation. He noted
Commissioner Waring of the Local Boundary Commission (LBC) and Dan
Bockhorst of the Department of Community and Economic Development
(DCED) were available via teleconference to answer questions. He
informed members if the joint committee chooses to go forward with
the proposed resolution, it would be introduced on Wednesday
[February 13] in both houses. It is his intention, if introduced,
to waive it from the Senate Community and Regional Affairs
Committee to the Senate Rules Committee.
CO-CHAIRMAN MEYER moved to adopt the proposed resolution [22-
LS1497\A, Cook, 2/11/02] for the purpose of discussion. [The
proposed resolution would eventually become SJR 34. The House
companion resolution is HJR 39.]
CO-CHAIRMAN TORGERSON announced that with no objection, the
committee would work off of the proposed resolution. He asked
staff to explain the resolution.
MS. MARY JACKSON, staff to Senator Torgerson and the Senate
Community and Regional Affairs Committee, explained that the
proposed resolution is a compilation of responses to concerns
expressed at the last two hearings. One provision in the proposed
resolution addresses a concern that all LBC standards were not met,
but the LBC has since submitted information to substantiate that
the standards were met. She pointed out that during previous
hearings, concern was also expressed about the inadequacy of the
City of Homer's transition plan. She advised removing the "Whereas"
clause in the proposed resolution that addresses the transition
plan because the LBC believes it was adequate.
MS. JACKSON gave the following description of the clauses in the
resolution.
The first three "Whereas" clauses address the background and
"legalese." They explain why the proposed resolution is before the
Legislature and the 45-day timeframe for action.
The fourth "Whereas" clause on page 1, line 12, states legislative
recognition that the LBC is a disinterested third party.
The fifth "Whereas" clause on page 1, line 15, states that the
Legislature recognizes the need for the legislative review process,
but believes this tool should be used as the final process.
MS. JACKSON stated the Legislature does not have any statutory or
regulatory authority to tell the LBC what to do: the proposed
resolution is suggestive.
The sixth "Whereas" clause on page 2, line 3, contains a direct
reference to HB 13.
The next "Whereas" clause on page 2, line 6, refers to the question
of whether or not the LBC has the authority to truncate terms.
When that question was asked during the committee process, the LBC
Chair indicated he did not know.
The eighth "Whereas" clause on page 2, line 9, is self-explanatory.
The "Whereas" clause on page 2, line 13, addresses the inadequacy
of the transition plan, however this is the clause she suggests
removing because the LBC has indicated that the city's transition
plan was adequate.
The "Whereas" clause on page 2, line 18, addresses an issue raised
by the public about its inability to vote, that was discussed
briefly. An informal poll was taken in the Homer area and given to
the city council, which made a decision to not go out for a vote of
the citizens.
The final "Resolve" clause states that the Homer annexation is not
approved by the Legislature.
MS. JACKSON repeated that this process is straightforward in that
inaction on the part of the Legislature implies approval so it is
unnecessary to have a resolution of support.
8:22 a.m.
SENATOR PHILLIPS said he has three questions that refer to the
clauses on page 2, lines 3-5, 9-11, and 18-21. Regarding the
clause on lines 3-5, he asked if a legal opinion has been issued
about whether HB 13 affects the creation of a service area within a
borough or a city.
CO-CHAIRMAN TORGERSON said the committee has a legal opinion that
says it does not apply to this annexation and that the LBC has a
higher responsibility so the Legislature cannot change the LBC's
authority by statute. He noted this issue has raised an
expectation and that folks who oppose this have their own attorneys
who say that it can and should apply. However, the general public's
expectation is still that some other form of government would not
demolish service area concepts. The LBC chose to ignore that
completely. It had a lot of options before it about how it could
have applied. The LBC clearly has the right to put stipulations on
annexations but chose not to. He said that is one of the major
reasons he opposes this annexation - that and the truncation of
terms. He likened it to Anchorage trying to annex the Mat-Su area,
if the same population numbers and other factors were applied. He
pointed out, regarding Senator Phillips' question, it is not a
service area within a unified municipality.
SENATOR PHILLIPS responded:
Of course you have a different borough on the Kenai so
you've got locally organized cities within a borough, and
I'm not familiar with that process day-to-day. What I'm
indicating here is my perspective that - are you saying
that the service area concept within the borough is
inclusive in this piece of legislation here?
CO-CHAIRMAN TORGERSON said the Kenai Borough and Municipality of
Anchorage were founded under the same laws.
SENATOR PHILLIPS said Eagle River has a service area concept, which
is why he became involved in HB 13. He asked, "... and the HB 13,
does it apply to the borough side of it - the service area concept,
versus the city? That's what I'm trying to get - to clarify that."
SENATOR AUSTERMAN said that "Whereas" clause speaks to the intent
of HB 13 that it would apply on a broad basis concept of not just
service areas. He thought the Legislature intended the vote concept
to apply to more than just service districts.
REPRESENTATIVE HALCRO commented that he has never seen a resolution
designed in this way. The clause on page 1, lines 12-14, recognizes
the constitutional authority of the LBC but the resolution then
proceeds to say that what the LBC did was wrong. Then, language on
page 2, lines 13-17, says the transition plan was adequate. And,
regarding Senator Phillips' question about HB 13, the committee has
two legal opinions that clearly say that HB 13 cannot make an
incursion into the LBC's constitutional authority. He said he is
not sure that he understands what the problem is.
8:28 a.m.
SENATOR PHILLIPS noted that Ms. Jackson stated the resolution says
the Legislature is concerned about the process of annexation and
asked what was wrong with the process.
MS. JACKSON replied:
And if I might, I think I can address your previous
concern about HB 13. What you had before you was the
section that references unified municipalities. On page
2 of that bill was a brand new section that applied to
boroughs and that's where the authority, if you will,
applied. And then Senator Austerman addressed the
question of the intent and that was it. This is not
addressing the legality of the issue. Without question,
you have two legal comments or opinions before you that
say the legality is not there. And then, specifically to
the constitutionality of the Local Boundary Commission,
there is still a trump - and that is by this body. This
body has the ability to disapprove and that is too in the
Constitution. And you don't need to even address
'whereases.' As a practical matter, the ones that I've
researched that have been most recent do not have reasons
for disapproval. The decision was to lay this on the
table and have you debate it in full and, you may find if
you disapprove, you don't want to put any of the
'whereases' but you had debated all of the issues.
SENATOR PHILLIPS said that is what concerns him because he is
worried about setting a precedent. He repeated the proposed
resolution expresses concern about the process but does not specify
what part of the process was flawed.
MS. JACKSON stated there was nothing wrong with the process and
that "process" may be the wrong term. As an example, she explained
that a public policy issue was identified that may be
inappropriate; that being whether it was appropriate to have an
inclusion of 2,300 people that was ratcheted down to 890.
SENATOR PHILLIPS referred to the "Whereas" clause on page 2, lines
18-21, and asked Ms. Jackson to elaborate.
MS. JACKSON explained that the public comment had been received but
the residents of the City of Homer did not have the ability to make
a determination on whether or not they wanted the municipality to
annex. The process does not require a vote of the municipality, nor
does it require a vote of the area to be annexed, so that would be
a process issue. The LBC develops the regulations for the process.
Regarding the areawide issue (page 2, lines 9-12), Ms. Jackson said
Senator Torgerson and Representative Scalzi indicated their concern
about it over a year ago. They both introduced joint resolutions
to amend the Constitution to require that the LBC not go forward
with an annexation that exceeds 10 percent. That percentage was
chosen merely to start a dialog about the appropriateness of, what
has been seen by some as, a land grab.
REPRESENTATIVE GUESS stated, regarding page 2, lines 3-17, as a
member of the committee that heard HB 13 last year, she agrees with
the two legal opinions. She said that issue was never discussed on
the House side and she does not believe that was the intent.
Regarding the truncation of terms, she said it should be clarified
by the LBC but added that people testified that the election is in
October and that people from the area that is annexed can run for
those offices. She said she is unsure why that is an issue.
Regarding the "Whereas" clause on page 2, lines 9-12, she reads
that to mean the process worked. The City of Homer tried to annex
25 square miles but was stopped by the LBC. She believes the
"Whereas" clause on lines 18-21 is the core of the resolution and
that the legitimacy of the previous three clauses is mixed.
MS. JACKSON noted the issue of the application HB 13 is one for the
body to determine. The issue of the truncation of terms is twofold.
The LBC said it didn't know for certain that it has the ability to
truncate terms so that is a question for the Legislature. If the
Legislature passes this resolution, it will act as a letter of
intent and asks the LBC to research whether it has that ability.
The second part has to do with residency requirements. The City of
Homer is putting forward an ordinance at its next meeting to
clarify that matter. She sees that action as meaning that if an
ordinance is necessary now, it was not clarified originally.
Regarding whether the process worked because the number of people
was reduced from 2,300 to 890, she said one could look at is as not
working because it should not have been that big to begin with and
the regulations should have been specific. That goes to the
legislation introduced by Senator Torgerson and Representative
Scalzi to amend the Constitution. That issue was raised while the
LBC was developing its regulations but it was not considered.
REPRESENTATIVE SCALZI informed members that the resolution was
proposed for discussion purposes. He noted that he researched what
has been done before and was disappointed to find no direction from
other annexation denials. He believes the Legislature should give
direction to the LBC for future annexations regarding the problems
that occurred during this one. He said he disagrees with the HB 13
argument on this particular issue and stated:
If you are going to have a service area, which we have a
road service area that's - although non area wide
encompasses the whole borough, effectively if we are
going to allow a vote to change the boundaries on that,
the whole borough would have to vote on whether or not
the City of Homer could annex and that wouldn't be
appropriate because you'd need a non area wide vote,
you'd need the whole borough to vote to change those
boundaries. Well that would preclude any annexation from
going forward - or certainly may. So I think that the
Boundary Commission's argument and the Attorney General's
argument are valid in this case that the LBC's annexation
procedures would trump what we do through statutory
regulation.
He then asked Mr. Bockhorst about the non-involvement of Kachemak
City. He noted Kachemak City is a second-class city next to the
Homer area and is surrounded by this annexation. The report said
that the Homer annexation would not have gone through if Kachemak
City had been a part of it. The LBC and DCED staff expressed some
concern about that because the LBC is mandated to incorporate
second-class cities as they are with the same language with regard
to service areas. He stated, "... and say, well if you can do it
better with a unified city then you don't need the service area,
also second class cities.
MR. BOCKHORST said the City of Kachemak and City of Homer were both
incorporated by the Superior Court of Alaska. The department, in
its analysis of the Homer annexation, acknowledged that the
Superior Court did not pay enough attention to the constitutional
provisions encouraging minimum numbers of local government units.
However, with regard to the proceeding before the LBC, the issue of
the City of Kachemak and its status was never put on the table. A
petition filed by the City of Homer for annexation of 25.6 square
miles was on the table. To deal with that question would have
required the LBC to take extraordinary due process steps because
the issue was not on the table. He felt that from a public policy
standpoint, it would also represent a heavy hand on the part of the
State of Alaska, if the LBC or DCED initiated it at the local
level. DCED, in its analysis, acknowledged that there ought to be
consideration of the future relationship between the City of Homer
and the City of Kachemak that would involve discussions of local
officials, citizens in the local area and the broader area of the
Kenai Peninsula.
8:40 a.m.
REPRESENTATIVE SCALZI said a forced annexation or legislative
review implies a heavy hand anyway. He felt the LBC should have at
least made a recommendation for the sake of consistency but did not
tackle it because of the difficulty of the issue.
REPRESENTATIVE HALCRO commented to his understanding, law guides
the LBC process and 14 standards must be met before it can propose
an annexation.
MS. JACKSON clarified that the LBC has adopted regulations that
identify standards but that the Constitution grants authority for
legislative review, not statutes.
REPRESENTATIVE HALCRO asked if the LBC must meet those standards.
MS. JACKSON said it must, but they are the ones that establish the
standards and they are also the ones that determine if those
standards have been met. The only oversight is this body.
REPRESENTATIVE HALCRO said he believes Representative Guess was
right on track. He stated the "Whereas" clause on page 2, lines 3-
5, pertains to HB 13. The committee has two legal opinions that
say that HB 13 cannot conflict with the LBC's constitutional
authority. The "Whereas" clause on lines 6-8 pertaining to
truncated terms shouldn't be an issue. During testimony at a
previous hearing, five city council men said they would resign
their terms and volunteer to run for re-election. The next
"Whereas" clause shows the LBC process worked. The City of Homer
was over-reaching for 25 square miles; the LBC reduced it to a
little less than 5 square miles. The "Whereas" clause on lines 13-
17 says that if a transition plan was adopted for 25 square miles,
4.8 square miles should be sufficient. He added that the City of
Homer had several budget meetings last fall to plan how to provide
service during the transition. He stated the last "Whereas" clause
defies what the LBC process is. He noted many legislators went
through the Anchorage Hillside police issue five or six years ago.
The LBC was created because local communities, when they encounter
growth, are incapable of making that kind of decision. He noted if
the Legislature votes to overturn the annexation, the City of Homer
will have to go through the process for another two years and it
will not get better. He maintained that all of the points in the
resolution are clearly trumped by the facts.
8:45 a.m.
REPRESENTATIVE MURKOWSKI questioned what directive the Legislature
is trying to send in the resolution. She expressed concern that if
it is to act as a letter of intent, it seems empty to say the
Legislature is concerned about the process, even though the LBC
acted within the confines of its authority, and offer no guidance.
She maintained that the resolution says the Homer annexation is
problematic enough to stop but the resolution has no muscle.
SENATOR PHILLIPS stated that disapprovals of annexations in the
past have been short and to the point and gave no reasons for
disapproval. He suggested removing the reasons from the proposed
resolution and letting legislators explain why they are voting for
or against it during the floor debate. He repeated that the LBC
works under a constitutionally mandated process.
CO-CHAIRMAN TORGERSON said he agrees with Senator Phillips'
suggestion but explained that other members wanted to include the
reasons to couch the debate.
8:50 a.m.
SENATOR PHILLIPS moved to amend the proposed resolution by deleting
lines 3-21 on page 2 [Amendment 1].
REPRESENTATIVE HALCRO questioned how to justify the conclusion on
page 2, lines 22-24, if the entire content of the resolution is
deleted.
CO-CHAIRMAN TORGERSON stated the Legislature is not required to
explain the reasons and, according to Tam Cook, legal counsel,
legislatures have gone both ways in similar situations.
SENATOR PHILLIPS repeated that each member could state on the
floor, for the record, the reasons why they are voting for or
against it. He stated a letter of intent could also be sent. He
does not want to tell the LBC how to do its job when it is guided
by a constitutional mandate.
SENATOR PHILLIPS repeated his motion to delete lines 3-21 on page
2.
CO-CHAIRMAN TORGERSON announced that with no objection, Amendment 1
was adopted. He then informed members a motion would be in order to
have a House and Senate joint resolution introduced in each body.
SENATOR PHILLIPS moved that the Community and Regional Affairs
Committees introduce the proposed resolution in the House and
Senate. [The resolutions, SJR 34 and HJR 39, were subsequently
introduced.]
REPRESENTATIVE SCALZI stated appreciation for Senator Phillips'
comment that members should look to local legislators of the areas
in matters like this as they have local knowledge and know the
history. He commented that he hopes to debate this issue in the
House CRA Committee.
CO-CHAIRMAN MEYER stated support for the motion as time is of the
essence in this matter because action must be taken by March 7.
CO-CHAIRMAN TORGERSON announced that support of the motion to
introduce the proposed resolution in both houses does not reflect
members' support or opposition of the Homer annexation.
REPRESENTATIVE MURKOWSKI stated that Senator Torgerson said he
would ask that the resolution be waived from the Senate CRA
Committee and noted she would like the House CRA Committee to hear
the measure so that members have the opportunity to get their
positions on the record.
CO-CHAIRMAN TORGERSON commented that he would talk to the Co-Chair
and decide what to do. He then announced, with no objection, the
motion to introduce the proposed resolution in each body carried.
[The proposed resolution would eventually become SJR 34. The House
companion resolution is HJR 39.]
TAPE 02-3, SIDE B
With no further business to come before the committee, he adjourned
the joint meeting of the Senate and House Community and Regional
Affairs Committees at 9:00 a.m.
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