CSHB 318(JUD): "An Act limiting the exercise of eminent domain; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 318(JUD) 01 "An Act limiting the exercise of eminent domain; and providing for an effective date." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 04 to read: 05 LEGISLATIVE INTENT AND FINDINGS. (a) The legislature finds that 06 (1) the United States Supreme Court decision in Kelo v. City of New London, 07 545 U.S. ___, 125 S.Ct. 2655, 162 L. Ed. 2d 439 (2005) demonstrates that an overly 08 expansive application of eminent domain powers can be a threat to the property rights of all 09 private property owners; 10 (2) it is necessary to provide clarification regarding the exercise of eminent 11 domain in the following two situations: 12 (A) the taking of private property if the purpose is to transfer the 13 property to another private person for economic development; 14 (B) the taking of a landowner's primary residence to develop an indoor 15 or outdoor recreational facility or project.
01 (b) In recognizing that many public projects will have economic effects, the 02 legislature intends by this Act not to 03 (1) restrict those public uses already recognized in state law merely because 04 the project may have an associated economic effect; or 05 (2) provide an absolute bar on transfers of land to private entities, but to place 06 restrictions on when such transfers occur. 07 (c) In this section, "economic development" means development of property for a 08 commercial enterprise carried on for profit or to increase tax revenue, tax base, or 09 employment. 10 * Sec. 2. AS 09.55.240(a) is amended to read: 11 (a) Except as provided in (d), (e), and (f) of this section, the [THE] right of 12 eminent domain may be exercised for the following public uses: 13 (1) all public uses authorized by the government of the United States; 14 (2) public buildings and grounds for the use of the state and all other 15 public uses authorized by the legislature of the state; 16 (3) public buildings and grounds for the use of an organized or 17 unorganized borough, city, town, village, school district, or other municipal division, 18 whether incorporated or unincorporated; canals, aqueducts, flumes, ditches, or pipes 19 conducting water, heat, or gas for the use of the inhabitants of an organized or 20 unorganized borough, city, town, or other municipal division, whether incorporated or 21 unincorporated; raising the banks of streams, removing obstructions from them, and 22 widening, deepening, or straightening their channels; and roads, streets, and alleys, 23 and all other public uses for the benefit of an organized or unorganized borough, city, 24 town, or other municipal division whether incorporated or unincorporated, or its 25 inhabitants, which may be authorized by the legislature; 26 (4) wharves, docks, piers, chutes, booms, ferries, bridges of all kinds, 27 private roads, plant and turnpike roads, railroads, canals, ditches, flumes, aqueducts, 28 and pipes for public transportation, supplying mines and farming neighborhoods with 29 water, and draining and reclaiming land, and for floating logs and lumber on streams 30 not navigable, and sites for reservoirs necessary for collecting and storing water; 31 (5) roads, tunnels, ditches, flumes, pipes, and dumping places for
01 working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of 02 tailings or refuse matter from mines; also an occupancy in common by the owners or 03 possessors of different mines of any place for the flow, deposit, or conduct of tailings 04 or refuse matter from their several mines, and sites for reservoirs necessary for 05 collecting and storing water; 06 (6) private roads leading from highways to residences, mines, or farms; 07 (7) telephone lines; 08 (8) fiberoptic lines; 09 (9) [(8)] telegraph lines; 10 (10) [(9)] sewerage of an organized or unorganized borough, city, 11 town, village, or other municipal division, whether incorporated or unincorporated, or 12 a subdivision of it, or of a settlement consisting of not less than 10 families, or of 13 public buildings belonging to the state or to a college or university; 14 (11) [(10)] tramway lines; 15 (12) [(11)] electric power lines; 16 (13) [(12)] for the location of pipelines for gathering, transmitting, 17 transporting, storing, or delivering natural or artificial gas or oil or any liquid or 18 gaseous hydrocarbons, including, but not limited to, pumping stations, terminals, 19 storage tanks, or reservoirs, and related installations. 20 * Sec. 3. AS 09.55.240 is amended by adding new subsections to read: 21 (d) The power of eminent domain may not be exercised to acquire private 22 property from a private person for the purpose of transferring title to the property to 23 another private person for economic development purposes. This subsection does not 24 apply to transfers of private property to another private person if one or more of the 25 following apply: 26 (1) the landowner consents, either before or after a condemnation 27 proceeding has been filed, to the use of the property for a private commercial 28 enterprise or other economic development; 29 (2) the private person has been expressly authorized by statute either to 30 exercise the power of eminent domain, or to receive an interest in land acquired by the 31 exercise of eminent domain;
01 (3) the transferred property is used for a private way of necessity to 02 permit essential access for extraction or use of resources; 03 (4) the acquisition is used, in part, for leasing property to a private 04 person that occupies a portion of public property or a public facility, including a 05 private business that occupies a portion of an airport, port, or public building; 06 (5) the property is transferred to a person by oil and gas lease under 07 AS 38.05.180; 08 (6) the property is transferred to a common carrier; 09 (7) the legislature has approved by law the transfer of the property. 10 (e) The power of eminent domain may not be exercised for the purpose of 11 developing a recreational facility or project if the property to be acquired includes an 12 individual landowner's primary personal residence or that portion of an individual's 13 property attached to and within 250 linear feet of an individual landowner's personal 14 residence. 15 (f) In this section, 16 (1) "common carrier" has the meaning given in AS 04.16.125; 17 (2) "economic development" means development of property for a 18 commercial enterprise carried on for profit or to increase tax revenue, tax base, or 19 employment; 20 (3) "personal residence" means a structure that is the dwelling place of 21 an individual that 22 (A) must be used by the owner as a dwelling unit, as opposed 23 to a rental, storage, or other commercial space; 24 (B) must be inhabited by the owner for at least 90 days during 25 the 12-month period immediately before the date an action for the exercise of 26 the power of eminent domain is filed; 27 (C) must constitute an ordinary home for general living 28 purposes, as opposed to a dwelling used only for seasonal recreational or 29 temporary purposes; and 30 (D) may not have been constructed, placed, or occupied for the 31 purpose of avoiding eminent domain proceedings;
01 (4) "private person" means a person that is not a public corporation as 02 defined in AS 45.77.020 or a government as defined in AS 11.81.900; 03 (5) "recreational facility or project" 04 (A) means a facility or project, the primary purpose of which is 05 recreational; 06 (B) includes a park, natural resources area, trail or pedestrian 07 pathway, greenbelt, access to a wilderness area, amusement park, small boat 08 facility, personal use fishery, sports facility, playground, infrastructure, or 09 other facility related to or in support of an indoor or outdoor recreational 10 facility or project; 11 (C) does not include 12 (i) a highway, sidewalk, or path within the right-of-way 13 of a highway; 14 (ii) a path, trail, or lane used as a safe route to a school 15 program; 16 (iii) a wayside or rest stop; 17 (iv) a development, the primary purpose of which is not 18 recreational, such as a path, trail, or lane developed to reduce 19 congestion, or to encourage use of an alternate, gas-saving mode of 20 transportation; 21 (v) a path or trail to or between villages or from a 22 village to a facility or resource; 23 (vi) a stormwater retention or treatment facility or 24 wetland, habitat, or other acquisition required to obtain a permit for a 25 highway, airport, or other public project; 26 (vii) a taking under AS 19.05.110, 19.05.120; 27 AS 19.22.020; AS 27.21.300; AS 35.20.040, 35.20.050; or 28 AS 41.35.060; and 29 (viii) a taking not prohibited by law before January 1, 30 2007, under AS 41.21. 31 * Sec. 4. AS 29.35.030(a) is amended to read:
01 (a) Except as provided in (c) of this section, a [A] municipality may, only 02 within its boundaries, exercise the powers of eminent domain and declaration of taking 03 in the performance of a power or function of the municipality under the procedures set 04 out in AS 09.55.250 - 09.55.460. In the case of a second class city, the exercise of the 05 power of eminent domain or declaration of taking must be by ordinance that is 06 submitted to the voters at the next general election or at a special election called for 07 that purpose. A majority of the votes on the question is required for approval of the 08 ordinance. 09 * Sec. 5. AS 29.35.030 is amended by adding new subsections to read: 10 (c) The power of eminent domain may not be exercised to acquire private 11 property from a private person for the purpose of transferring title to the property to 12 another private person for economic development, except as provided by 13 AS 09.55.240(d)(1) - (6), and may not be exercised for purposes expressed in 14 AS 09.55.240(e). 15 (d) In this section, 16 (1) "economic development" has the meaning given in AS 09.55.240; 17 (2) "private person" has the meaning given in AS 09.55.240. 18 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 APPLICABILITY. This Act applies only to condemnation actions filed on or after the 21 effective date of this Act. 22 * Sec. 7. This Act takes effect January 1, 2007.