Legislature(2007 - 2008)BELTZ 211

03/18/2008 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 304 CFEC AS INFORMATION RESOURCE TELECONFERENCED
Moved SB 304 Out of Committee
+= SB 228 MUNICIPAL LAND USE REGULATION TELECONFERENCED
Moved SSSB 228 Out of Committee
Bills Previously Heard/Scheduled
              SB 228-MUNICIPAL LAND USE REGULATION                                                                          
                                                                                                                                
3:45:57 PM                                                                                                                    
CHAIR OLSON announced the consideration of SB 228.                                                                              
                                                                                                                                
SENATOR FRED DYSON,  Alaska State Legislature, noted  that he had                                                               
a sponsor substitute for SB 228.                                                                                                
                                                                                                                                
CHAIR  OLSON said  that  SSSB  228, version  \C,  was before  the                                                               
committee.                                                                                                                      
                                                                                                                                
3:47:04 PM                                                                                                                    
SENATOR  DYSON  said  this  bill  has no  dollar  signs,  but  is                                                               
significant in protecting the rights  of Alaskans. He has been in                                                               
touch with  people across  the nation.  Some might  not recognize                                                               
real  property issues  in major  urban centers  created by  urban                                                               
planners  and  zoning regulations.  SSSB  228  guarantees that  a                                                               
property owner will  keep the use of property even  if the zoning                                                               
and land-use regulations change. The  guarantee is for ten years,                                                               
but if a person  is a senior, disabled, or a  veteran, it will be                                                               
a lifetime. "In  the area where I live lots  of very well-meaning                                                               
people  have  put  their  regulations  on  top  of  long-standing                                                               
pioneers in  the area and have  had a very negative  effect, both                                                               
on their lifestyle, income, and ultimately their mental health."                                                                
                                                                                                                                
3:49:01 PM                                                                                                                    
SENATOR DYSON  said he is  fine with  a new subdivision  that has                                                               
land-use  regulations and  everyone moving  in knows  about them,                                                               
but he strongly objects to  development that moves near a pioneer                                                               
and imposes  its will on  that person.  There are some  places in                                                               
his  jurisdiction that  won't allow  unapproved  house colors,  a                                                               
truck with  a logo, a vehicle  in the yard, or  a political sign,                                                               
which is a huge abrogation of  rights. It seems to be contrary to                                                               
Alaskans' natures.  He assumes he  will hear from  urban planners                                                               
who say  this will restrict  their rights, "and it  does restrict                                                               
their right to impose a change of  values for the use of the land                                                               
on somebody, unless  they can demonstrate that it  has a negative                                                               
impact  on  the neighborhood."  His  original  version said  that                                                               
whatever someone is  doing and a person can't "hear  it, smell it                                                               
or  see it,  it's none  of the  government's darn  business." The                                                               
drafters toned him  down to the definition of  a public nuisance.                                                               
The  right of  life, liberty,  and the  pursuit of  happiness was                                                               
debated  when  our country  was  founded.  He  said he  is  often                                                               
astonished at  the wisdom of  the founders of America.  He quoted                                                               
several  people  on  the  topic   of  private  property,  and  he                                                               
submitted the  quotes for the  record. Blackstone said  regard of                                                               
the law for private property is  above the good of the community.                                                               
John Locke  said the preservation  of property is the  reason for                                                               
society,  and  the government  can  never  take property  without                                                               
consent. Samuel Adams said that  inalienable rights include life,                                                               
liberty, and property. He quoted others.                                                                                        
                                                                                                                                
3:53:21 PM                                                                                                                    
SENATOR  DYSON  said  many  battles,   including  ones  in  South                                                               
America, are over  the fact that common people  don't have access                                                               
to the land  - an impetus to the Marxist  movement of taking land                                                               
from the rich and giving it to ordinary folks.                                                                                  
                                                                                                                                
SENATOR KOOKESH said he can read the quotes himself.                                                                            
                                                                                                                                
SENATOR DYSON quoted Thomas Jefferson:  it is the unalienable and                                                               
god-given right  and duty to take  none of the property  from us,                                                               
including  the right  to own,  use, and  enjoy one's  own private                                                               
property.                                                                                                                       
                                                                                                                                
SENATOR DYSON  said his  bill tries to  keep the  government from                                                               
imposing a change of land  use. One section deals with home-based                                                               
businesses. Grandfathering of a  business is already allowed, but                                                               
that is not sufficient because that  only means that a person can                                                               
only continue the level of activity that was already there.                                                                     
                                                                                                                                
The committee took a brief at-ease at 3:55:56 PM.                                                                             
                                                                                                                                
3:56:34 PM                                                                                                                    
VICE-CHAIR KOOKESH took the gavel.                                                                                              
                                                                                                                                
SENATOR DYSON said  SSSB 228 makes sure a use  that was permitted                                                               
before the zoning change can  continue. If erecting a Quonset hut                                                               
was permitted  prior to  a zoning change,  for example,  a person                                                               
will still  be able  to put  one up  afterwards. That  right will                                                               
terminate with the transfer of the property or ten years.                                                                       
                                                                                                                                
3:57:45 PM                                                                                                                    
JEREMY THOMPSON,  Staff to  Senator Dyson,  said a  person cannot                                                               
separate the possession of private  property from the use of that                                                               
property.  "When  you  take  away  the  freedom  to  use  private                                                               
property, in  a certain way, you  take away a piece  of it." SSSB
228 makes  things less confusing  for the property  owner. "Pages                                                               
and pages  of regulations to  memorize and  know on what  you can                                                               
and cannot  use on  your land is  confusing." The  bill restrains                                                               
the government  from committing unjust  acts. Local control  is a                                                               
moral good, but  it should not be arbitrary or  maintained at the                                                               
expense of private property. SSSB  228 recognizes that there is a                                                               
common law  tradition of what is  a public nuisance, "and  if you                                                               
want to  restrict a  private citizen's  right to  use his  or her                                                               
land, you need to appeal to  that tradition." If the laws of that                                                               
tradition are cut  down for economics or politics,  there will be                                                               
no where  to hide  when those  forces are  turned against  us. He                                                               
suggested two books on the subject of property rights.                                                                          
                                                                                                                                
3:59:50 PM                                                                                                                    
SENATOR STEVENS said he understands  the principle, but there are                                                               
also  communities that  want  to establish  their  own rules.  In                                                               
Kodiak a person  can't have barnyard animals in the  city, "and I                                                               
think  that's probably  good." It  is good  not to  have chickens                                                               
next  door waking  people up.  He asked  if the  bill will  allow                                                               
someone to have chickens even within the city limits.                                                                           
                                                                                                                                
SENATOR DYSON said  yes. If the city changes the  rules, a person                                                               
can  continue  to do  what  was  permitted before.  He  mentioned                                                               
people  in  his  district  who race  dogs.  If  the  municipality                                                               
determines  that the  act would  have  a negative  impact on  the                                                               
neighborhood -- if  it can make that case -  then it can prohibit                                                               
it. But  when the city changes  a rule, whoever was  there before                                                               
has a right to continue the  use until the property changes hands                                                               
or in ten years.                                                                                                                
                                                                                                                                
4:01:46 PM                                                                                                                    
SENATOR STEVENS said  he sees problems. It stands  on their heads                                                               
all the laws the communities  have passed. Firecracker rules, for                                                               
example.                                                                                                                        
                                                                                                                                
SENATOR DYSON  said if the city  changes its mind, then  a person                                                               
doesn't have to cease doing it the next morning.                                                                                
                                                                                                                                
MR. THOMPSON said not to  underestimate the common law tradition.                                                               
There's a well-defined  tradition in common law  that talks about                                                               
what  is a  public nuisance.  Senator Stevens'  concern is  dealt                                                               
with  in that.  The tradition  goes  back hundreds  of years  and                                                               
these issues  are not new.  What is  disconcerting is that  it is                                                               
being pushed  aside, and local governments  are governing people.                                                               
"Why do  we have confidence in  that, rather than the  common law                                                               
tradition?"                                                                                                                     
                                                                                                                                
4:03:36 PM                                                                                                                    
SENATOR STEVENS  said it  reminds him  of a  homeowner who  had a                                                               
junk yard  with old cars  and magazines. It was  attracting rats,                                                               
and  the community  wanted  it  cleaned. It  took  the borough  a                                                               
number of years  and an enormous amount of money  to force him to                                                               
clean up. This  bill will make it more difficult  for the borough                                                               
to do its job for the neighbors.                                                                                                
                                                                                                                                
4:04:27 PM                                                                                                                    
SENATOR DYSON  said it  is only  when the  city changes  things -                                                               
"the guy's  had a wrecking  yard there,  been a pioneer,  and his                                                               
yard is  full of  old snow  machines and  old outboards,  and the                                                               
city moves  in and decides  that that's  no longer. He  will have                                                               
this transition time to deal with  it." In his area, a garage was                                                               
put  out of  business after  35 years  because a  subdivision was                                                               
built  around him.  He collected  Ford  pick-ups and  had half  a                                                               
dozen  sitting around  the property,  and the  neighbors ran  him                                                               
off. "But he was there before; they knew it when they came in."                                                                 
                                                                                                                                
SENATOR WAGONER said he likes parts  of the bill. In his hometown                                                               
the city rezoned property, and a  man was not allowed to sell his                                                               
print  shop. A  simple zoning  change cost  him several  thousand                                                               
dollars in  business and property value  when he sold it.  "And I                                                               
think that's what you're trying to  get to." He supports the bill                                                               
because he was appalled that the city could do that.                                                                            
                                                                                                                                
4:06:43 PM                                                                                                                    
SENATOR DYSON said unfortunately this  bill will not protect that                                                               
because he could not transfer that  right. The man could stay and                                                               
even expand his business but it couldn't change hands.                                                                          
                                                                                                                                
SENATOR THOMAS noted  Lines 1 and 2  on Page 2 where  it says the                                                               
property must  be allowed  to continue  to be  used for  the home                                                               
business until ownership of the  property is transferred. What if                                                               
the business was sold but the property wasn't?                                                                                  
                                                                                                                                
SENATOR DYSON  said the right does  not go with the  business but                                                               
with the property. With a transfer, the previous usage ends.                                                                    
                                                                                                                                
SENATOR WAGONER said the sponsor  statement says if the ordinance                                                               
is changed  to prohibit the use  of the land that  was previously                                                               
permitted - and that was the case  of the print shop - the use of                                                               
the  land that  was permitted  under  the old  ordinance must  be                                                               
allowed  to   continue  unless  it's  determined   that  the  use                                                               
constitutes a common law nuisance.                                                                                              
                                                                                                                                
SENATOR DYSON said it is still predicated on the same ownership.                                                                
                                                                                                                                
SENATOR  THOMAS  said  that  could be  clarified  to  say:  until                                                               
ownership of the property or business is transferred.                                                                           
                                                                                                                                
SENATOR DYSON said yes, and that is in the third paragraph.                                                                     
                                                                                                                                
4:09:15 PM                                                                                                                    
SENATOR  DYSON   said  Mr.  Thompson  spoke   with  someone  from                                                               
Fairbanks who  sent 13  pages of  municipal code  "that regulates                                                               
this whole business."                                                                                                           
                                                                                                                                
SENATOR  WAGONER moved  to report  SSSB 304  from committee  with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
SENATOR  STEVENS objected  and asked  for input  from the  Alaska                                                               
Municipal  League  and communities.  He  sees  problems with  the                                                               
bill, and it would be hasty to move it without any comments.                                                                    
                                                                                                                                
SENATOR  DYSON  said his  bill  has  very  little chance  to  get                                                               
through during the  session. He expects "some  of that push-back"                                                               
in the next committee.                                                                                                          
                                                                                                                                
4:11:32 PM                                                                                                                    
SENATOR  STEVENS said  he sits  on state  affairs and  won't mind                                                               
dealing with his concerns there.                                                                                                
                                                                                                                                
CHAIR OLSON said he is  comfortable moving it. Hearing no further                                                               
objections, SSSB 228 moved out of committee.                                                                                    
                                                                                                                                

Document Name Date/Time Subjects