HB 154: "An Act requiring the Department of Law to provide guidelines regarding state and municipal takings of private property; relating to state and municipal regulations, ordinances, and actions relating to private property; relating to compensation for and taxation of private property taken by state or municipal action; relating to actions for state or municipal takings of private property or for certain violations; prohibiting certain regulations; and providing for an effective date."
00HOUSE BILL NO. 154 01 "An Act requiring the Department of Law to provide guidelines regarding state 02 and municipal takings of private property; relating to state and municipal 03 regulations, ordinances, and actions relating to private property; relating to 04 compensation for and taxation of private property taken by state or municipal 05 action; relating to actions for state or municipal takings of private property or 06 for certain violations; prohibiting certain regulations; and providing for an effective 07 date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 09.10.030 is amended to read: 10 Sec. 09.10.030. Actions to recover real property in 10 years. Except as 11 otherwise provided under AS 34.50.190, a [A] person may not bring an action for 12 the recovery of real property [,] or for the recovery of the possession of it unless the 13 action is commenced within 10 years. An action may not be maintained for the 14 recovery unless it appears that the plaintiff, an ancestor, a predecessor, or the grantor
01 of the plaintiff was seized or possessed of the premises in question within 10 years 02 before the commencement of the action. 03 * Sec. 2. AS 09.10.070(a) is amended to read: 04 (a) Except as otherwise provided by AS 34.50.190, a [A] person may not 05 bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, 06 or for any injury to the person or rights of another not arising on contract and not 07 specifically provided otherwise; (2) upon a statute for a forfeiture or penalty to the 08 state; or (3) upon a liability created by statute, other than a penalty or forfeiture; unless 09 the action is commenced within two years. 10 * Sec. 3. AS 34.50 is amended by adding new sections to read: 11 Article 2. Government Takings. 12 Sec. 34.50.100. Government takings guidelines. The Department of Law 13 shall develop and submit guidelines to the lieutenant governor each year for 14 publication in the Alaska Administrative Code to assist state agencies, municipalities, 15 and the public to identify and evaluate governmental action that may result in a taking 16 of private real or personal property. The guidelines must be based on current law as 17 articulated by the United States Supreme Court and the state supreme court and the 18 principles stated in AS 34.50.110. The guidelines may not be construed to enlarge or 19 reduce the scope of private property protection provided by the state or federal 20 constitution. 21 Sec. 34.50.110. Principles for governmental action. A governmental entity 22 shall follow the following principles when considering and taking governmental action 23 affecting private property: 24 (1) to avoid imposing unanticipated or undue additional burdens on the 25 public or on the public treasury, a governmental entity shall, when planning and 26 carrying out governmental action, be sensitive to, anticipate, and account for the 27 obligations imposed by the Fifth and Fourteenth Amendments to the United States 28 Constitution and art. I, sec. 18, and art. VIII, sec. 16, Constitution of the State of 29 Alaska, as those amendments and sections relate to takings of private property; 30 (2) the assertion that a public health and safety purpose is involved is 31 insufficient to avoid a taking, and governmental actions that are purportedly designed
01 to protect public health and safety may not be taken unless they 02 (A) are taken only in response to real and substantial threats to 03 public health and safety; 04 (B) are designed to significantly advance the purpose of health 05 and safety; and 06 (C) do not exceed the governmental action that is necessary to 07 achieve the health and safety purpose; 08 (3) the governmental entity responsible for taking the governmental 09 action has the burden of proving the criteria under (2) of this section; 10 (4) a governmental entity shall avoid undue delay in its governmental 11 processes; although normal governmental processes do not ordinarily constitute takings, 12 undue delays in some decision making may create a taking, and, in addition, a delay 13 in processing may increase significantly the size of compensation due to the owner of 14 the private property if a taking is later found to have occurred; 15 (5) the constitutional protections against taking private property are 16 self-executing and require compensation regardless of whether the underlying authority 17 for the action contemplated a taking or authorized the payment of compensation. 18 Sec. 34.50.120. Restrictions on governmental action. (a) A governmental 19 entity may not adopt, amend, or repeal a regulation or ordinance relating to private 20 property or impose a restraint on private property use unless the regulation, ordinance, 21 or restraint has the least possible effect on private property and still accomplishes the 22 necessary public purpose and unless a statement complying with (b) of this section is 23 prepared by the governmental entity and made available to the public at least 30 days 24 before the adoption of the regulation or imposition of the restraint by the entity. 25 (b) The statement required by (a) of this section must contain a full analysis 26 of the total economic effect of the regulation, ordinance, or restraint, an analysis of the 27 economic effect of all reasonable alternatives to the regulation, ordinance, or restraint, 28 and an identification of the manner in which the proposed regulation, ordinance, or 29 restraint will substantially advance the purpose of protecting public health and safety 30 from identifiable public health or safety risks created by the use of the private real 31 property.
01 Sec. 34.50.130. Full compensation required. (a) A governmental entity may 02 not take governmental action that results in a taking of private property unless the 03 governmental entity pays full compensation for the taking to the owner of the private 04 property. 05 (b) The full compensation required by (a) of this section shall be paid to the 06 owner within three months after the adoption of the regulation or ordinance that results 07 in the taking or within three months after the restraint on private property use that 08 results in the taking. The compensation shall be measured as of the date of the 09 adoption of the regulation or ordinance or the imposition of the restraint. Interest at 10 the London Interbank Offering Rate plus 3.5 percent shall be paid on the amount due 11 the property owner from the time that the regulation or ordinance is enforced as to the 12 private property, or from the time the restraint is imposed on the private property, until 13 the time payment is received by the owner. 14 Sec. 34.50.140. Prohibition against value deflation. A governmental entity 15 may not deflate the value of private property by suggesting or threatening to take 16 action that would avoid the entity's paying full compensation to the owner. 17 Sec. 34.50.150. Waiver prohibited. A governmental entity may not require 18 the owner of private property to waive the full compensation required by AS 34.50.130 19 as a condition of approving a use of the person's property, including receiving a permit 20 or subdividing real property. 21 Sec. 34.50.160. Access. In addition to the full compensation required by 22 AS 34.50.130, a governmental entity that adopts a regulation or ordinance or imposes 23 a restraint on private property use shall also, at the governmental entity's expense, 24 provide an alternate access to the property or purchase the inaccessible property if the 25 regulation, ordinance, or restraint deprives the owner of the property of access to the 26 property. 27 Sec. 34.50.170. Prohibition against imposing costs. A governmental entity 28 may not require an owner of private property to provide or pay for studies, maps, 29 plans, reports, or other information used in the governmental entity's decisions to adopt 30 a regulation or ordinance relating to private property or to impose a restraint on private 31 property use.
01 Sec. 34.50.180. State responsibility for compensation. The state shall 02 compensate municipalities for the full compensation that the municipalities are required 03 to pay under AS 34.50.130 for taking private property by governmental action if the 04 municipality's governmental action is required by state law. 05 Sec. 34.50.190. Time for bringing action. A person may not commence a 06 civil action for a taking of the person's private property by governmental action unless 07 the action is commenced within five years after the taking has occurred. 08 Sec. 34.50.200. Adjustment of value for property tax. (a) If a 09 determination has been made that there has been a taking of private property by 10 governmental action, a municipality that levies a tax on the property shall adjust 11 valuation of the property for the purposes of the tax and notify the owner of the new 12 tax valuation. The new tax valuation must be reflected and identified in the next tax 13 assessment notice. 14 (b) If the property owner contests the reduction in valuation, and if the 15 property owner secures an independent appraisal of the property from a person who 16 has a valid real estate appraiser certificate issued under AS 08.87.110, the appraisal 17 provided by the independent appraiser shall be the valuation used by the municipality 18 when taxing the property. 19 Sec. 34.50.210. Enforcement. A person who owns property that is affected 20 by a provision of AS 34.50.100 - 34.50.250 may enforce the provision in the superior 21 court against a governmental entity that fails to comply with the provision. If the 22 person prevails in an action brought under this section, the owner may recover, to the 23 extent awarded by the court, the owner's attorney fees and costs. 24 Sec. 34.50.220. Regulations prohibited. A state agency may not adopt 25 regulations to implement AS 34.50.100 - 34.50.250. 26 Sec. 34.50.250. Definitions. In AS 34.50.100 - 34.50.250, unless the context 27 clearly requires otherwise, 28 (1) "full compensation" means the monetary value of the reduction in 29 the fair market value of private property if the reduction is caused by a taking by 30 governmental action; 31 (2) "governmental action" means action by a governmental entity,
01 including the adoption of a regulation or ordinance, or a restraint on private property 02 use, but does not include 03 (A) the formal exercise of the power of eminent domain; 04 (B) seizure of private property by law enforcement agencies as 05 evidence of a crime for violations of law or forfeiture ordered by a court; 06 (C) orders issued by a state agency, an agency of a 07 municipality, or a court that result from a violation of law and that are 08 authorized by law; or 09 (D) the discontinuation of state government programs or the 10 government programs of a municipality; 11 (3) "governmental entity" means a state agency or a municipality; 12 (4) "personal property" means tangible property other than real 13 property, but including merchandise, stock-in-trade, machinery, equipment, furniture, 14 fixtures, vehicles, boats, and aircraft; 15 (5) "private property" means real or personal property that is not owned 16 by the state, a municipality, or the federal government; 17 (6) "real property" includes land, an interest in land, improvements on 18 land, proprietary water rights, and crops, forest products, or resources capable of being 19 harvested or extracted; 20 (7) "restraint on private property use" means an action, requirement, or 21 restriction imposed by a governmental entity that limits the use of private property; 22 (8) "state agency" means a department, institution, board, commission, 23 division, authority, public corporation, or other administrative unit of the executive 24 branch of state government, including the University of Alaska, the Alaska Railroad 25 Corporation, the Alaska Housing Finance Corporation, the Alaska Aerospace 26 Development Corporation, and the Alaska State Pension Investment Board; 27 (9) "taking" includes 28 (A) a regulation or other governmental action that regulates or 29 imposes a restraint on private property use for public benefit, including 30 restraints on wetlands or fish or wildlife habitat, or the creation of buffer zones, 31 unless the regulation is necessary to avoid or correct a public nuisance;
01 (B) governmental action that results in a physical invasion or 02 occupancy of private property or that denies an owner any or all economic or 03 other use of the person's private property; or 04 (C) governmental action that results in less than a complete 05 deprivation of all use or value of private property, or of all interest in the 06 property, even if the action is only temporary in nature. 07 * Sec. 4. AS 29.25.020(b) is amended to read: 08 (b) The following procedure governs the enactment of all ordinances, except 09 emergency ordinances: 10 (1) an ordinance may be introduced by a member or committee of the 11 governing body, or by the mayor or manager; 12 (2) an ordinance shall be set by the governing body for a public hearing 13 by the affirmative vote of a majority of the votes authorized on the question; 14 (3) if applicable, a notice containing the statement under 15 AS 34.50.120 shall be given; 16 (4) at least five days before the public hearing a summary of the 17 ordinance shall be published together with a notice of the time and place for the 18 hearing; 19 (5) [(4)] copies of the ordinance shall be available to all persons present 20 at the hearing, or the ordinance shall be read in full; 21 (6) [(5)] during the hearing the governing body shall hear all interested 22 persons wishing to be heard; 23 (7) [(6)] after the public hearing, the governing body shall consider the 24 ordinance [,] and may adopt it with or without amendment; 25 (8) [(7)] the governing body shall print and make available copies of 26 an ordinance that is adopted. 27 * Sec. 5. AS 29.25.040 is amended to read: 28 Sec. 29.25.040. Codes of regulation. The governing body may in a single 29 ordinance adopt or amend by reference provisions of a published code of municipal 30 regulations. The procedure under AS 29.25.020 applies to an ordinance adopted under 31 this section, except that neither the ordinance or its amendments must be distributed
01 to the public or read in full at the public hearing. For a period of 15 days before 02 adoption of an ordinance under this section, at least five copies of the code of 03 regulations shall be made available for public inspection at a time and place set out 04 in the hearing notice. Only the ordinance must be printed after it is adopted under this 05 section. The governing body shall provide for an adopted code of regulations to be 06 made available to the public at no more than cost. Notwithstanding the other 07 provisions of this section and if applicable, the adoption of a published code of 08 regulations under this section shall comply with AS 34.50.120. 09 * Sec. 6. AS 29.45.110 is amended by adding a new subsection to read: 10 (d) When assessing the full and true value of property, the assessor shall 11 comply with AS 34.50.200. 12 * Sec. 7. AS 44.62.130(a) is amended to read: 13 (a) The lieutenant governor shall provide for the continuing compilation, 14 codification, and publication, with periodic supplements, of the guidelines developed 15 by the Department of Law under AS 34.50.100 and of all regulations filed by the 16 lieutenant governor's office, or of appropriate references to any regulations the printing 17 of which the lieutenant governor finds to be impractical, such as detailed schedules or 18 forms otherwise available to the public, or that [WHICH] are of limited or particular 19 application. The publication of the guidelines and the compiled regulations is the 20 Alaska Administrative Code. The periodic supplements to it are the Alaska 21 Administrative Register. The code and register must contain appropriate annotations 22 to judicial decisions and opinions of the attorney general. 23 * Sec. 8. AS 44.62.200(a) is amended to read: 24 (a) The notice of proposed adoption, amendment, or repeal of a regulation 25 must include 26 (1) a statement of the time, place, and nature of proceedings for 27 adoption, amendment, or repeal of the regulation; 28 (2) reference to the authority under which the regulation is proposed 29 and a reference to the particular code section or other provisions of law that are being 30 implemented, interpreted, or made specific; 31 (3) an informative summary of the proposed subject of agency action;
01 (4) other matters prescribed by a statute applicable to the specific 02 agency or to the specific regulation or class of regulations; 03 (5) a summary of the fiscal information required to be prepared under 04 AS 44.62.195; 05 (6) if applicable, the information required by AS 34.50.120. 06 * Sec. 9. INITIAL GUIDELINES. The Department of Law shall prepare the initial 07 guidelines required by AS 34.50.100, enacted by sec. 3 of this Act, by January 1, 1998. 08 * Sec. 10. This Act takes effect July 1, 1997.