04/15/2009 05:30 PM Senate JUDICIARY

         HB  49-EMINENT DOMAIN: RECREATIONAL STRUCTURES                                                                     
                                                                                                                                
6:25:00 PM                                                                                                                    
CHAIR FRENCH  announced the consideration of  CSHB 49(JUD)am, and                                                               
stated that  it is his  great pleasure to  welcome Representative                                                               
Craig Johnson  to the committee. Representative  Johnson has been                                                               
very patient  and understanding of  the difficulty  the committee                                                               
has  had in  getting a  quorum since  the committee  lost Senator                                                               
Elton, he  said. Several  times his bill  has been  scheduled and                                                               
not heard. Senator French apologized on behalf of the committee.                                                                
                                                                                                                                
REPRESENTATIVE CRAIG  JOHNSON, sponsor, said  legislation similar                                                               
to HB 49 was brought forth last  year and died in the Senate as a                                                               
result of  an amendment that  is not  contained in this  bill. He                                                               
recounted that  the provision of  Alaska statute  prohibiting the                                                               
taking of someone's personal  residence for recreational purposes                                                               
via the  exercise of eminent domain  came about as a  result of a                                                               
case  in  Connecticut when  a  city  determined  it was  okay  to                                                               
condemn certain  real estate  for the  purpose of  increasing its                                                               
tax  roles.  [U.S.  Supreme  Court  case, Kelo  v.  City  of  New                                                               
London].                                                                                                                        
                                                                                                                                
REPRESENTATIVE JOHNSON  stated his  belief that  taking someone's                                                               
home or  recreational property for recreational  purposes doesn't                                                               
rise to the  level of being in the best  public interest. That is                                                               
the  essence  of  the  bill.  However, nothing  in  HB  49  would                                                               
preclude  the  exercise  of   eminent  domain  for  "traditional"                                                               
purposes.  The bill  protects an  individual's  property that  is                                                               
within  250  feet of  their  personal  residence or  recreational                                                               
structure.  That translates  into  about 5  acres,  he said.  The                                                               
impetus  for the  bill comes  from people  in Juneau,  Fairbanks,                                                               
Kenai,  and  Big Lake  who  are  currently building  recreational                                                               
homes that will become their primary residence when they retire.                                                                
                                                                                                                                
6:28:37 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  how many  other states  have similar                                                               
legislation.                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHNSON  offered his personal opinion  that Alaska                                                               
is unique.                                                                                                                      
                                                                                                                                
CHAIR FRENCH asked if this committee amended the previous bill.                                                                 
                                                                                                                                
REPRESENTATIVE  JOHNSON  replied  the  bill was  amended  in  the                                                               
Senate Finance Committee.                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI said his only  concern with the bill is that                                                               
the public  is continually losing  access to fishing  streams and                                                               
hunting areas. He  highlighted the Kenai River as  an example and                                                               
asked what can  be done to ensure that Alaskans  continue to have                                                               
access.                                                                                                                         
                                                                                                                                
REPRESENTATIVE JOHNSON explained that  the bill does not restrict                                                               
access and the  exclusion is limited to 250 feet  from a property                                                               
owner's physical  structure. If, for example,  an individual were                                                               
to buy 1,000 feet along a river  and build a house in the middle,                                                               
just  the  narrow  strip  in  the  center  could  not  be  taken.                                                               
Traditional  access  is   not  restricted  just  as   it  is  not                                                               
restricted for  a primary residence.  "You can't  restrict access                                                               
to waters  because that's  a constitutionally  guaranteed right,"                                                               
he emphasized.                                                                                                                  
                                                                                                                                
6:30:59 PM                                                                                                                    
SENATOR WIELECHOWSKI mentioned a series  of lots and asked if the                                                               
intention is that  a trail could come no closer  than 250 feet on                                                               
either side of the structure.                                                                                                   
                                                                                                                                
REPRESENTATIVE JOHNSON  explained that the right-of-way  could be                                                               
for bought or sold but the  landowner could not go through a very                                                               
specific eminent domain  process and sue to  get the right-of-way                                                               
back.  Also, if  a  landowner  has a  series  of  lots this  only                                                               
applies to the lot upon which the structure is built.                                                                           
                                                                                                                                
6:31:59 PM                                                                                                                    
ERROL CHAMPION,  Associate Broker,  Coldwell Banker  Race Realty,                                                               
and member  of the Alaska  Board of Realtors, stated  support for                                                               
HB 49.                                                                                                                          
                                                                                                                                
CHAIR FRENCH commented  that he appreciates that  the real estate                                                               
industry has been quite staunch in its support of these bills.                                                                  
                                                                                                                                
MR.  CHAMPION  described the  bill  as  good protection  for  any                                                               
investor.                                                                                                                       
                                                                                                                                
CHAIR FRENCH  closed public testimony  and asked the will  of the                                                               
committee.                                                                                                                      
                                                                                                                                
6:33:00 PM                                                                                                                    
SENATOR MCGUIRE moved to report CS  for HB 49 from committee with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection,  CSHB 49(JUD)am was reported  from the Senate                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
At ease 6:33 pm.