Legislature(2005 - 2006)BUTROVICH 205
03/02/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB249 | |
| SB284 | |
| HB92 | |
| SB298 | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 298 | TELECONFERENCED | |
| + | HB 92 | TELECONFERENCED | |
| + | HB 318 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 284 | ||
| = | SB 249 | ||
HB 318-LIMITATION ON EMINENT DOMAIN
9:54:28 AM
CHAIR RALPH SEEKINS announced CSHB 318(FIN) am to be up for
consideration.
CRAIG JOHNSON, Staff to Representative Lesil McGuire, introduced
the bill and said it resolved around a policy call of whether
the state should allow private property to be transferred to a
private individual for economic gain. Also, should eminent
domain be allowed to take someone's private home so that others
might recreate, he asked. He referred to Kelo versus City of New
London where the city captured forty homes and transferred them
to an economical development project and the property ended up
being a parking lot. This created outrage across the country and
to date more than forty pieces of legislation has entered the
federal system regarding eminent domain. The bill that has the
most support says that any state or municipality that uses
eminent domain to take private property for private gain will
lose their economic development money for a period of two years.
More than thirty states are in the process of addressing the
issue through legislation and the sponsor of the bill would like
to ensure the same thing could not happen in Alaska.
9:57:02 AM
MR. JOHNSON said he has discovered through research that some of
the properties taken through eminent domain were second-
generation homes that were in a viable neighborhood. The bill
creates a definition for the word "home." The sponsor of HB 318
intends to protect Alaskan's homes as much as possible. He
prepared the committee that the testimony they would hear would
not be totally supportive and he conceded that it was not a
"perfect bill."
9:59:34 AM
MR. JOHNSON stated that many attorneys have looked at the bill
as well as state departments, the Realtors Association, utility
companies, the railroads, and some oil companies. The current
version represents a balance from the suggestions and concerns
of many different entities.
10:02:26 AM
SENATOR CHARLIE HUGGINS asked Mr. Johnson the type of feedback
they are receiving regarding the trail system in Anchorage.
MR. JOHNSON said they have heard a lot of support regarding the
trail system, mainly from the city assembly who passed an
ordinance against the taking of personal property. The basic
premise of the bill is that a person's home is their castle and
that the least the government can do is protect it.
10:05:56 AM
SENATOR HUGGINS asked for clarification whether the bill would
impact traditional trails.
MR. JOHNSON said access to hunting and fishing trails is
specifically protected in the bill.
SENATOR HOLLIS FRENCH said most projects have many aspects and
as an example, someday there will be a large development on the
south side of Mount McKinley to allow people more access to
Denali National Park. That will have a huge economic impact on
the area. He asked Mr. Johnson how he proposes to separate the
recreational aspect of a new hotel and road from the economic
development aspects. He said property could be taken to build a
railroad because that would fall into economic development but
some projects are large-scale and are mixed.
MR. JOHNSON said that example wouldn't come under consideration
because that is federal land and the bill only addresses private
property.
SENATOR FRENCH countered there was a lot of private land on the
south side of Denali off of the Petersville Road that would fall
under the restriction if the bill were too tightly crafted.
MR. JOHNSON said the bill allows for access to trails and roads
and does not affect a developed road system. If a borough or
munipality wants to take private land and sell it to another
private individual it would be prohibited. If they want to keep
it for their own use, such as infrastructure, then it would not
be protected under the bill. If they want to sell private land
to a developer of a lodge, they would have trouble doing so
under the bill.
10:09:52 AM
SENATOR FRENCH said ultimately the judge would make the call of
whether the eminent domain taking of someone's private land was
for economic development or not. He felt that it would be a
difficult process and subject to interpretation.
MR. JOHNSON agreed that the judge would make the determination
because by definition, eminent domain is a court action. He
noted that only one percent of the land in Alaska is held in
private hands.
SENATOR GUESS asked Mr. Johnson to explain the instances where
local government could impose local control. She questioned the
reason he said that the bill would not affect the Municipality
of Anchorage.
10:12:22 AM
MR. JOHNSON responded ordinances that are more restrictive tend
to trump state laws.
SENATOR GUESS asked the reason for adding "fiber optic lines" on
page 3 line 8.
MR. JOHNSON said it was done at the request of a House Judiciary
Standing Committee member as an attempt to plan for the future.
If a cable company has a right-of-way and they need to use the
land for fiber optics infrastructure, they wanted to make sure
that scenario was covered.
SENATOR GUESS asked Mr. Johnson to explain the third exemption
on page 4.
MR. JOHNSON said that is directly out of the Alaska State
Constitution that guarantees the right to access of resources.
He asked to have a representative from the Department of Law
explain the reason.
PETER PUTZIER, Senior Assistant Attorney General, Department of
Law (DOL), said the language comes from Article 8, Section 18 of
the Alaska State Constitution. The reason for the exception is
to avoid any argument that the bill in some way conflicts with
the Constitution.
10:14:43 AM
SENATOR GUESS asked whether she reads it correctly that a
private home could be taken to access resources.
MR. PUTZIER explained the way the Constitution reads is
proceedings in eminent domain may be undertaken for private ways
of necessity to permit essential access for extraction or
utilization of resources. The bill uses the exact same language.
SENATOR THERRIAULT asked Mr. Putzier to speak about the fifth
exemption.
MR. JOHNSON said it was brought as a concern that in a case such
as an oil lease, the state could take back the lease if
absolutely necessary. That was put in as a request from the
Department of Natural Resources.
SENATOR GENE THERRIAULT asked whether the state, through eminent
domain would actually take back the lease or whether the state
would take the resource under the lease and pay fair market
value for it.
CHAIR SEEKINS said it would appear that the state would take
back the surface use of the land.
MR. PUTZIER said he understood the idea was to preserve the
right to take back the property. There would be interplay with
existing lease rights and, he said, it would be an interesting
exercise of eminent domain. It is theoretically possible that
the property could be taken back if the consensus was that the
property wasn't used productively.
10:18:47 AM
CHAIR SEEKINS asked whether the property would include a
subsurface estate.
MR. PUTZIER said that was his understanding.
SENATOR THERRIAULT asked whether the definition of "property"
was the acreage or the resource. He also asked whether anyone
could potentially take the resource without taking the acreage.
MR. PUTZIER said he did not think the state could take the
resource without paying for the value of the resource.
SENATOR GUESS referred to page 4 line 8 and asked the reason for
the phrase "common carrier."
10:20:31 AM
MR. PUTZIER said the language was in response to similar federal
legislation so that Alaska would be in conformity. The intent is
to cover something like public bus systems, for example.
SENATOR GUESS clarified that under the definition of economic
development, it means "for profit."
10:21:48 AM
SENATOR FRENCH observed there was nothing in the bill
prohibiting the state from offering large amounts of money to
entice landowners to sell.
MR. PUTZIER said that is absolutely correct.
MR. JOHNSON added there was also an escape clause in the case of
a "hold out" that would allow the Legislature to step in and
determine whether a situation was an appropriate use of eminent
domain.
SENATOR FRENCH referred to page 5 and the definition of
"recreational facility or project." He posed a hypothetical
situation of a small community where thousands of people use the
small boat harbor and the city determined the harbor must
expand. He asked how that situation would be handled if the
harbor expansion would be within 250 feet of a residence.
10:24:17 AM
MR. JOHNSON said the city would probably offer the resident
owner additional money for the property although if it were
identified to be a large economic project, a judge could justify
the taking of the property.
SENATOR FRENCH asked Mr. Johnson the reason for not identifying
"boat launch" in the bill. He speculated there would be more
incidences of that occurring than any issue with small boat
harbors.
MR. JOHNSON said there was no reason. The language came from the
Department of Natural Resources (DNR) and the Department of Fish
and Game (DFG).
10:28:46 AM
CHAIR SEEKINS asked Mr. Putzier the reason the bill uses the
words "personal property" instead of "private property."
MR. PUTZIER said "personal property" is generally considered an
automobile or something like a swing set. "Private property"
restricts the language to "real property" that could be taken
with eminent domain.
CHAIR SEEKINS asked the reason for using the word "personal
residence" versus "private residence."
MR. PUTZIER responded either phrase could be used. The
definition of residence is difficult and there is no model even
in other states.
CHAIR SEEKINS asked how the residence is considered in the case
of someone owning a home in a family trust.
MR. PUTZIER said it would depend on how it flows through the
definitions in Section 3 subparagraphs (A-C).
10:31:30 AM
CHAIR SEEKINS held the bill in committee.
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