Legislature(2005 - 2006)BUTROVICH 205
03/28/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB318 | |
| HB408 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 318 | TELECONFERENCED | |
| += | HB 408 | TELECONFERENCED | |
HB 318-LIMITATION ON EMINENT DOMAIN
8:37:05 AM
CHAIR RALPH SEEKINS announced CSHB 318(FIN) AM to be up for
consideration. He said his intent for the day was to have a good
round table discussion on the bill.
REPRESENTATIVE LESIL MCGUIRE introduced herself for the record.
8:38:18 AM
SENATOR HOLLIS FRENCH advised Representative McGuire of a
memorandum received from Don Bullock of the Legislative Legal
and Research Services Division dated March 22, 2006 that advised
that any "escape hatch" from the eminent domain bill would be
problematic. He expressed concern that a local government would
not be able to control eminent domain in its own community.
Senator Gene Therriault joined the meeting.
REPRESENTATIVE MCGUIRE responded she would look favorably at a
"voting threshold" if that is what the committee preferred. She
reminded the committee that Kelo versus City of New London came
about due to a local action taken by a local government. She
speculated that the people of the City of New London might wish
that their state had legislation to protect them at the state
level when the city let them down.
8:44:12 AM
SENATOR GRETCHEN GUESS advised that the discussion in the Senate
Judiciary Standing Committee has been whether or not to allow a
local governing body by a two-thirds majority to make the
decision. She noted the subject was a difficult balance between
local control and free will and expressed concern that smaller
communities do not get the representation that they need in the
state capitol.
REPRESENTATIVE MCGUIRE said she liked the idea of a two-thirds
threshold.
SENATOR FRENCH noted the non-delegable aspect is important and
the greater majority provision protects minority rights. He
expressed support for the idea.
CHAIR SEEKINS agreed. He said he objects when the city assembly
responsibility is handed off to private developers.
8:48:48 AM
REPRESENTATIVE MCGUIRE noted state policy makers should ensure
that the rights of the people are equal for all. She said she
would accept the will of the committee. Paragraph 7 on page 4
allows for a stopgap because it is difficult to think of every
situation that the bill might cover.
8:51:57 AM
MR. JOHNSON added four large communities have already made the
decision to enact ordinances similar to this legislation. The
discussion on the bill is really whether to afford the rest of
the state the same protection of eminent domain.
CHAIR SEEKINS said he did not want to step on local control.
Everyone wants to protect private property but at the same time
Alaskans know the importance of access to recreational areas.
8:54:26 AM
REPRESENTATIVE MCGUIRE pointed out that the issue goes both
ways. The Tony Knowles Coastal Trail runs right through her
district, she stated, and some people love it while some hate
it. The local control bypass allows a measure of balance to the
bill.
CHAIR SEEKINS noted the difference between a developer and
conservationist is that the developer wants to build a cabin
this summer where as the conservationist built his last summer.
He said access to recreation was a huge topic in Alaska.
8:57:38 AM
REPRESENTATIVE MCGUIRE agreed there are unique circumstances in
this state. She said the argue against local control would be
that the bill takes care of people's concerns regarding access
to recreational areas, such as navigable waters and hunting and
fishing rights. The bill would not limit the state's ability to
use the power of eminent domain in any other circumstance except
to take property from one private entity and transfer it to
another private entity. In a state where private ownership
represents one percent of the land, there should be creative
options for taking land to accomplish the goal.
CHAIR SEEKINS stated the recreational side was not restricted to
private-to-private transfer.
REPRESENTATIVE MCGUIRE stood corrected.
9:00:41 AM
SENATOR GUESS noted page 5, line 11 lists what is excluded from
the definition of recreational. She referred to subsection (e)
on page 4 and said there is nothing to override that provision.
REPRESENTATIVE MCGUIRE responded that subsection (7) was added
due to the fact that the bill already had many exclusions. She
said she would support it if the committee chose to add the same
legislative approval provision to the recreational side of the
bill.
MR. JOHNSON advised it would be a simple fix for the committee.
On page 6 line 18 simply just change the (1)-(6) to (1)-(7).
That would roll the legislative oversight into the private
property prong.
9:03:55 AM
REPRESENTATIVE MCGUIRE advised the committee that the concepts
developed separately for the economic and recreational aspects.
People question the reason the state could take their homes for
recreational reasons if they can't for economic purposes.
SENATOR GUESS referred to page 3, lines 29-31 and asked whether
that would allow for a statute to be created that would allow a
real estate company to exercise eminent domain.
MR. JOHNSON said the definition of private person could be
utilities, pipeline companies, or any one other than the
government.
REPRESENTATIVE MCGUIRE advised "private person" is defined in AS
09.55.240.
9:08:41 AM
PETER PUTZIER, Senior Assistant Attorney General, Department of
Law (DOL), responded to the question regarding "private person."
He handed out a default definition of " private person" and said
it includes corporations and a wide variety of other entities.
Utilities have been granted the right of eminent domain. Lines
29-31 are in the bill to make it clear that their authority
remains status quo.
9:09:51 AM
SENATOR GUESS said for the record she read AS 09.55.240 and
there is no definition.
MR. PUTZIER said if there were a question regarding what
"private person" means, it would be as defined in Title 1.
SENATOR FRENCH asked the number of express authorizations that
exist in statute regarding eminent domain.
MR. PUTZIER offered a list of all the authorizations to
committee members.
9:12:28 AM
DAVE FEEKEN, Alaska Association of Realtors testified that the
Kelo decision defined economic development as a public use,
taking private property from one owner and giving it to another
for the purpose of economic development. In a survey conducted
by the Association of Realtors, 97 percent were opposed to that
type of eminent domain powers. The US Supreme Court found in the
Kelo case that pursuant to a well conceived plan, the public
benefits through increased tax revenues was good enough to be
called a public use.
With only one percent of Alaska's land in private hands, the use
of eminent domain needs to be severely restricted. Currently
there are 10,000 active private-to-private eminent domain case
takings in process in the United States. "Your home is only your
castle so long as somebody doesn't come along and convince the
city council they have a better use," he stated. The key to
eminent domain use is a good definition of "public use" and
"economic development," he advised. The Alaska Association of
Realtors will continue to work on eminent domain legislation
throughout the summer.
9:16:02 AM
GARVAN BUCARIA, Wasilla, testified that the language of the bill
was perplexing and difficult to keep up with. His previous
testimony questioned the need for using eminent domain for
recreational purposes. He said he is subject to eminent domain
under the 2004-2005 Department of Transportation and Public
Facilities study, which has notified him that his property might
be taken for a main street widening project in Wasilla. Two
years later, he said, he still does not know what the DOT is
planning to do and it has been very stressful.
He agreed with the local control provision but said it was a
relative question. He has attended many meetings on the issue
and said he is aggrieved by the lack of public participation
even though it affects everyone in the community. He believes
there is not sufficient public notification within the
communities.
9:20:37 AM
SENATOR HUGGINS asked the location of Mr. Bucaria's property.
MR. BUCARIA responded with the location of his property. The
proposed road would go through his house and completely destroy
the center of Wasilla, he stated.
SENATOR HUGGINS asked the length of time he has lived in his
house.
MR. BUCARIA said he has lived in his house since 1986 but has
been an Alaska resident since 1975.
9:23:23 AM
SENATOR GUESS moved Amendment 1. Page 4, line 9: Delete "by law"
and following "transfer": Insert "in an Act, the subject of
which is limited to the transfer."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR GUESS explained Amendment 1 would ensure that if the
Legislature does approve a transfer of property that it does so
under a separate bill, which would ensure public process.
REPRESENTATIVE MCGUIRE expressed support.
Hearing no further objections, Amendment 1 was adopted
unanimously.
SENATOR GUESS moved Amendment 2. Page 5, line 8: Delete "small
boat harbor."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR GUESS advised Amendment 2 would remove "small boat
harbor" from recreational facility or project. She expressed
concern over unintended consequences due to a lack of
definition.
SENATOR THERRIAULT said the small boat harbor land would already
be owned by the state and wondered whether Senator Guess's
concern was over the access to it.
9:25:50 AM
SENATOR GUESS responded she was uncomfortable since the phrase
was undefined and nebulous.
SENATOR THERRIAULT asked the bill sponsor where the language
came from.
MR. JOHNSON advised they tried to encompass as much as possible
with regard to recreational facilities. He said they could not
come up with a scenario where a home would be taken for a small
boat harbor.
CHAIR SEEKINS noted the restrictions would be to within 250 feet
of the home.
MR. JOHNSON surmised the small boat harbor would be mainly in
the water anyway so the likelihood of the taking of any property
would be difficult to conceive.
CHAIR SEEKINS speculated that the access to the harbor could
affect private property.
MR. JOHNSON agreed.
9:27:55 AM
CHAIR SEEKINS removed his objection.
SENATOR HUGGINS cautioned the committee against deleting "small
boat harbor" too quickly. He suggested the committee work on a
definition first.
9:30:55 AM
SENATOR GUESS asked Senator Huggins whether page 5, line 9
wouldn't cover his concerns.
SENATOR HUGGINS indicated no.
9:33:12 AM
CHAIR SEEKINS expressed concern over the lack of definition. He
posed a hypothetical scenario of a right-of-way to a navigable
stream. In order to accommodate the ability to launch a boat,
the city might need to take a small portion of the waterfront
and that could be within 250 feet of someone's home. The
question remains whether that would be defined as a small boat
harbor.
9:36:04 AM
SENATOR GUESS withdrew Amendment 2 in order to obtain a
definition of small boat harbor.
REPRESENTATIVE MCGUIRE committed to work on that issue.
SENATOR GUESS moved Amendment 3. Page 6, line 4: Delete "rather
than primarily for recreation."
CHAIR SEEKINS objected for the purpose of discussion.
SENATOR GUESS explained that the words "rather than primarily
for recreation" bother her since the committee has not defined
the word "recreation."
9:38:20 AM
REPRESENTATIVE MCGUIRE did not object to the proposed amendment.
CHAIR SEEKINS removed his objection and the committee adopted
Amendment 3 unanimously.
9:40:38 AM
SENATOR FRENCH advised the committee that he would have a
proposed amendment concerning the locally elected body having to
approve transfer of property by a two-thirds vote and that it is
non-delegable.
CHAIR SEEKINS said he did not object provided there were
provisions for notice and public hearings.
SENATOR HUGGINS expressed support for local control.
CHAIR SEEKINS held the bill in committee.
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