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.