Legislature(2001 - 2002)
04/08/2002 02:05 PM Senate JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 278-TAKING PROPERTY BY EMINENT DOMAIN
MS. KIM OGNISTY, Staff to Senator John Torgerson, sponsor of SB
278, said SB 278 was concerned with eminent domain and
declaration to taking proceedings. She said the bill would
introduce a reasonable and diligent effort clause that attempted
to place the condemnor of the land and the private landholder in
an equal negotiating position. She said the bill did not try to
remove the authority of the State to take land by eminent domain
or complicate existing proceedings. She said current law did not
require the State to engage in a good-faith effort to negotiate
with private property owners and the State was free to make an
unreasonable offer or no offer at all. She said striving to
initiate communication from a more equitable bargaining position
would promote more productive negotiations, facilitate dialogue
over reasonable concerns and encourage suggestions from all
parties involved. She said similar statutes had been adopted in
at least 23 other states. She said the intent of SB 278 was to
reduce litigation by encouraging more cases to be settled up
front, promoting expediency in government actions.
She said Senator Torgerson yielded to the wisdom of the Chairman
regarding any amendments.
SENATOR THERRIAULT asked for the source of the proposed amendment
in the bill packet.
MS. OGNISTY said Sealaska suggested the amendment.
CHAIRMAN TAYLOR asked Mr. Rick Kauzlarich to provide testimony.
MR. RICK KAUZLARICH, State Right-of-Way Chief, Department of
Transportation & Public Facilities (DOTPF), said he had worked
for DOTPF for over 22 years as a right-of-way agent. He said
DOTPF acted in good faith to purchase property before proceeding
into condemnation. He said SB 278 would introduce additional
steps into an already complicated process.
He said DOTPF followed a strict set of guidelines when acquiring
property. He said the guidelines were based on Article 1,
Section 18 of the Constitution of the State of Alaska, which
said, "Private property shall not be taken or damaged for public
use without just compensation." He said that mirrored the
Constitution of the United States of America. He said DOTPF also
followed Title 3 of the Uniform Relocation Assistance and Real
Property Acquisition Act (URARPA) of 1970, which required that
real property must be appraised before initiation of
negotiations.
He said DOTPF required documentation in each acquisition file
that the owner of the property or the owner's representative was
given opportunity to accompany the appraiser during the
inspection of the property. If the appraiser was unable to
contact the owner or the owner refused to sign a form
acknowledging that opportunity that was documented in the file as
well.
MR. KAUZLARICH said the 1987 amendment to URARPA and DOTPF
defined an appraisal as, "A written statement independently and
impartially prepared by a qualified appraiser setting forth an
opinion of defined value of an adequately described property as
of a specific date supported by presentation and analysis of
relevant market information." He said DOTPF's staff was required
to conduct an appraisal review and establish an amount for just
compensation for each parcel to be acquired before an offer was
made to purchase property. This was called a reviewer's
determination. He said the determination could be no less than
the market value as outlined in the approved appraisal.
CHAIRMAN TAYLOR said he understood that a property could be
condemned and the owner could pay for an appraisal to be brought
to DOTPF. He asked if Mr. Kauzlarich was talking about DOTPF
contracting with someone to appraise the land and that person
giving the appraisal to DOTPF for review.
MR. KAUZLARICH said DOTPF contracted with a fee appraiser or a
staff member to do an appraisal that went through a review
process. A negotiator then contacted the property owner. He
said the property owner could also submit an appraisal for
consideration. That appraisal was reviewed and could become part
of the negotiations. He said the federal government would
reimburse all costs associated with the acquisition if an
agreement were reached between DOTPF and the property owner.
CHAIRMAN TAYLOR asked if the owner's appraisal would be paid for.
MR. KAUZLARICH said the appraisal would be paid for if it was a
legitimate cost in the negotiations.
SENATOR COWDERY asked what types of resistance DOTPF received
from property owners. He also asked how many times the property
owner's appraisal was included in negotiations.
MR. KAUZLARICH said condemnation appraising was a very specific
and involved process. He said a bank appraiser who did home
appraisals might not have the expertise necessary to do a
condemnation appraisal. He said condemnation appraisal involved
looking at the value of the part to be acquired as part of the
whole. He said some appraisers didn't understand that concept.
He said many times the property owners' appraisals didn't fall
within DOTPF's published guidelines. He said the review
appraisers worked with the appraisal and the negotiator and
points in that appraisal that were pertinent were considered. He
didn't think there had ever been a case where the negotiator
rejected an appraisal outright. He noted that the negotiator was
concerned with doing what was fair for the property owner in
accordance with the Constitution of the State of Alaska.
SENATOR COWDERY said there was a downturn in property values
during the 1980s. He asked how DOTPF dealt with appraisals that
were less than the mortgage.
MR. KAUZLARICH said a lot of single-family homes were acquired
for the Eagle River Highland Bridge project. He said a lot of
the appraisals were less than the mortgages. He said DOTPF
worked with the Federal Highway Administration and the banks and
was able to buy the properties and put the people into homes as
good as or better than their previous homes without losing any
money. He said DOTPF recognized those situations and worked with
property owners to resolve them.
He said property owners could submit appraisals to DOTPF for
consideration. He said in cases where the property owner's
submittal didn't adequately reflect the value of the part
acquired the review appraiser could outline the shortcomings of
the appraisal for the negotiator and the property owner. He said
the appraisal had to meet the same requirements as DOTPF's
appraisal in order to be reimbursed by the federal government.
Otherwise the costs would come out of State monies.
He said right-of-way acquisition was critical in the timeline of
a project. He said part of the timeline for a project accounted
for contracting the necessary appraisal reports. He said SB 278
had the potential to delay projects while DOTPF waited for the
property owners' appraisals. He said the property owner could
already have their expert review DOTPF's appraisal and come back
to DOTPF with any questions or problems with the appraisal as
well as submitting their own appraisal.
He said SB 278 would introduce additional steps to the process
rather than enhancing and streamlining the process. He believed
it had the potential to increase costs to DOTPF in additional
appraisal expenditures and costs associated with the review and
administration of processing the property owners' appraisals. He
said DOTPF staff was aware that all reasonable costs incurred by
the property owner should be considered in a settlement.
SENATOR COWDERY asked if the appraisers were licensed. He asked
if those licenses had to be renewed.
MR. KAUZLARICH said there were two levels of appraisal licensing.
The first was residential licensing. The second was commercial
licensing. He said condemnation appraisal would be included in
commercial licensing. He said the licenses went through periodic
review and continuing education was required to maintain
licenses. He said DOTPF only contracted with licensed
appraisers.
SENATOR COWDERY said Mr. Kauzlarich mentioned he had done
appraisal work for the State. He asked if he was licensed.
MR. KAUZLARICH said he was not. He said at the time he was doing
appraisal work, there was no license.
SENATOR COWDERY asked if review appraisers were picked randomly
or if the same few were used.
MR. KAUZLARICH said there were two review appraisers on staff.
He said there were situations where it was necessary to hire an
independent appraiser to do a review or an analysis of an
appraisal that had been submitted to DOTPF.
SENATOR COWDERY said he had worked with the Municipality of
Anchorage and there were arbitrators hired by the Municipality.
He said there was some concern that the same arbitrators were
hired over and over again and were conscious of who paid them and
might not be completely fair.
MR. KAUZLARICH said the appraisers used by DOTPF were
independent. He said the review appraisers and the independent
appraisers didn't always agree.
SENATOR THERRIAULT said there were two different types of
acquisitions. He said DOTPF could be putting in a new road and
need to acquire a strip of houses. He thought most of the time
DOTPF was widening the right-of-way and taking a strip of land
from each property. He wondered how much of the negotiations
involved taking a strip of land and what taking that strip of
land would do to the rest of the property.
He said constituents had contacted him during some big projects
in the North Pole area. He found DOTPF to be very reasonable.
He said in one instance an elderly couple was concerned because
the driveway in front of their house would no longer be usable.
He said there was a driveway behind the house that the couple
couldn't use because they couldn't negotiate the steps. He said
DOTPF purchased the entire property and resold it.
MR. KAUZLARICH said that was one of the reasons he was concerned
with SB 278. He said the majority of the approximately 500
takings each year were strip-takings. He said the appraiser had
to determine whether the taking would damage the rest of the
property or make it unusable for the owner. He said DOTPF would
offer to purchase the property in that situation. He didn't
think that most bank appraisers understood how to determine that
sort of loss in value and that was why a condemnation appraiser
was so important.
He said the property owner might not want the project to go
forth. He saw SB 278 as a way for these people to stop or delay
projects. He said property values could increase if a project
was delayed long enough. He said that made the cost of the
entire project increase.
CHAIRMAN TAYLOR asked Mr. Bill Satterburg to provide testimony
over the telephone. Mr. Satterburg was unavailable to testify
but had sent notes regarding SB 278.
He asked Mr. Bill Cummings to provide testimony.
MR. BILL CUMMINGS, Assistant Attorney General, Transportation
Section, DOL, said the State went through the steps Mr.
Kauzlarich outlined whether the project came from State or
federal monies. He said the federal government paid for the
majority of condemnation cases. He said the procedures laid out
in SB 278 would be inconsistent with AS 34.60.120, which set out
a very thorough acquisition policy for federally funded land
acquisitions.
He said SB 278 would add a lot of things that would have to be
proved in court proceedings. He said the State would have to
prove they had been diligent and reasonable in their
negotiations. The State already had to prove they had the
authority to take the land and the necessity to use the land in a
public project and the taking had been done in a manner
consistent with the greatest public good and the least private
injury. SB 278 would add another step in that litigation process
by requiring the State to prove that the manner in which they
treated the property owner was fair. If they hadn't done a
reasonable and diligent effort in their negotiations the taking
would be denied and they would have to start all over again.
MR. CUMMINGS said SB 278 didn't have an appreciation for the
process the State followed as mandated under AS 34.60.120. He
said having a licensed appraiser come in and do an appraisal
wouldn't necessarily fix the situation because that appraisal
could be unacceptable.
He said there was a case in Ketchikan in which a licensed
appraiser did an appraisal of a piece of property for DOTPF. The
negotiations using that appraisal weren't successful. DOTPF had
another appraiser with designation from the American Institute of
Real Estate Appraisers appraise the property and that appraisal
value was higher. He said the property owner had a licensed
appraiser appraise the property but that appraiser used a legally
incorrect method to come up with an estimate of just compensation
and that appraisal was thrown out. The property owner then got a
second appraisal. He said they went to court and the jury didn't
believe either appraisal but the award was closer to DOTPF's
number than the property owner's number. He said appraisers were
always going to differ on numbers. In that case four different
licensed appraisers came up with four different numbers.
He said it could take up to six months for the court to rule on a
motion. He said it might not take six months to rule on whether
DOTPF had been reasonable and diligent but it would cause a delay
nonetheless. He noted that time was money.
He then addressed the following proposed amendment in the bill
packet labeled 22-LS139\A.1:
A M E N D M E N T
OFFERED IN THE SENATE
TO: SB 278
Page 1, line 14, following "negotiation":
Insert "as provided in (b) and (c) of this section"
Page 1, line 14, through page 2, line 5:
Delete "; for purposes of this paragraph, "reasonable and
diligent effort" includes inviting the property owner to secure
an appraisal from a real estate appraiser certified under
AS 08.87, and either offering to purchase the property for its
full appraised value as determined by the property owner's
appraiser plus the cost of the appraisal, or explaining to the
property owner why full appraised value is not being offered"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 09.55.270 is amended by adding new subsections
to read:
(b) Before taking property, a condemnor shall invite
the property owner to, within a reasonable period of time
set by the condemnor,
(1) obtain an appraisal from a real estate
appraiser certified under AS 08.87 and offer to sell the
property to the condemnor for the appraised value plus the
cost of appraisal; or
(2) offer any alternative means of satisfying the
public purpose for which the property is sought.
(c) If a property owner offers to sell the property
under (b)(1) of this section within the reasonable period of
time set by the condemnor, the condemnor must either accept
the offer, or reject the offer and provide a reasonable
explanation of the reasons for the rejection along with a
reasonable counter offer. If a condemnor invites the
property owner to make an offer to sell the property as
described in (b) of this section and the property owner
fails to respond within a reasonable period of time, or if
the property owner rejects a reasonable counter offer made
under this subsection, the property owner may commence
eminent domain proceedings under AS 09.55.290."
Renumber the following bill section accordingly.
Page 2, lines 23 - 24
Delete "made a reasonable and diligent effort to acquire the
property by negotiation"
Insert "complied with AS 09.55.270(b) and (c)"
Page 2, line 30, through page 3, line 2:
Delete all material and insert:
"(2) the plaintiff was required to make a reasonable and
diligent effort to acquire the property by negotiation under
AS 09.55.270(b) and (c) and the plaintiff failed to comply with
AS 09.55.270(b) and (c)."
MR. CUMMINGS said the amendment would remove some of the more
burdensome language but the replacement language wasn't much
better. He said subsection (c) in Sec. 2 would require the State
to accept a counter-offer or come up with another reasonable
counter-offer. He said those changes would make it a gentler
condemnation code but would increase the amount of possible
litigation. He said litigation on whether the State had been
reasonable could go on for days. He said modern pre-trial
discovery allowed for the disclosure of documents going back to
the beginning of time and depositions of everyone. He said that
would use a lot of valuable resources.
He thought SB 278 addressed a problem that didn't exist. He said
the State had a very fair and reasonable process under the
guidance of AS 34.60.120. He thought the public was well served
by existing laws.
CHAIRMAN TAYLOR said Mr. Satterburg suggested a provision
requiring DOTPF to prepay condemnation costs and fees.
MR. CUMMINGS said that was a bizarre suggestion. He said that
suggestion came from a case Mr. Satterburg lost in Supreme Court
in which he wanted to do a drilling program on some gravel land
he thought held gold. DOTPF would have paid for gold-bearing
land if he had found gold. He said Mr. Satterburg filed a
petition for review that was turned down and he had been trying
to get that provision into law every time he saw a chance.
TAPE 02-14, SIDE A
3:40 p.m.
CHAIRMAN TAYLOR asked what a property owner had to do to protect
their interests against a condemnation.
MR. CUMMINGS said the property owner had a number of
responsibilities and assumptions made about their abilities. He
said the property owner could say there were other things that
could have been done rather than take their land. He said the
State had to consider viable options during the process leading
up to the filing of the condemnation.
CHAIRMAN TAYLOR asked if the property owner had to hire an expert
to do that.
MR. CUMMINGS said that was correct. He said the property owner
would be reimbursed for reasonable costs if they were right.
They would have to bear the costs if they were wrong.
CHAIRMAN TAYLOR said the property owner would only be reimbursed
for a percentage of the costs.
MR. CUMMINGS said Civil Rule 72 provided for reimbursement of
actual and reasonable costs for expenses that were reasonably
necessary to prove the property owner's case including
appraisers, engineering experts, lawyers and paralegals.
CHAIRMAN TAYLOR said the state would have to pay for gold-bearing
land if a property owner were willing to go out and spend $75,000
to $100,000 to get their land drilled to determine whether or not
it was gold-bearing land and did find gold. He asked if the
State would also have to pay for the drilling and attorney's
fees.
MR. CUMMINGS said that depended on the nature of the drilling
program. They would be reimbursed for at least the prorated
portion of those drilling costs that were in the area affected by
the taking.
CHAIRMAN TAYLOR said Mr. Satterburg also suggested that the
decision to appeal a master's decision should be left solely to
the property owner. He said if a master's award had been given,
the State should pay it and not appeal the award. He asked if
existing law allowed both parties to appeal a master's award.
MR. CUMMINGS said the State had 10 days to appeal while the
property owner had 15 days to appeal. He said the State not
being able to appeal would stand everything on its head. He said
there could be situations in which the master did a bad job. He
gave an example in which a master had gone off on a tangent and a
awarded approximately $200,000, which was a lot more than the
State thought the taking was worth. The State appealed and the
case went to a jury trial and the jury agreed with the State. He
said each side should have the ability to appeal because the
ultimate arbiter was the jury, which was the voice of the
community and the people.
CHAIRMAN TAYLOR thought the State had to deposit the value of the
land into the registry of the court.
MR. CUMMINGS said that was correct. He said that despoit would
be available to the claimants of interest such as the property
owner, the city for the prorated portion of taxes and the
mortgage holder.
CHAIRMAN TAYLOR asked if that money could be withdrawn if there
was an appeal.
MR. CUMMINGS said it could always be withdrawn.
CHAIRMAN TAYLOR asked if the property owner could withdraw that
money and still bring suit for a higher value.
MR. CUMMINGS said yes.
CHAIRMAN TAYLOR asked if the State was required to make a deposit
for the master's award.
MR. CUMMINGS said the State was not required to do so if they
appealed the master's award. He said the property owner would be
entitled interest from the time the case was filed on the extra
amount of compensation if the master's award was appealed and a
higher amount was awarded. He said that was an inducement to get
as much money on deposit as possible.
CHAIRMAN TAYLOR asked if the property owner was only entitled
interest if the decision wasn't appealed to the Superior Court.
MR. CUMMINGS said the interest was charged on the amount that was
greater than the amount of the deposit from the date the State
filed until compensation was finally rendered.
CHAIRMAN TAYLOR said the State could go through the process and
deposit $100,000. Then the case could go to a master. He said
the master could say the property was worth $125,000. He asked
if the State would have to deposit another $25,000.
MR. CUMMINGS said no.
CHAIRMAN TAYLOR said the State could then appeal within 10 days.
He said the case could then go to Superior Court for a jury
trial.
MR. CUMMINGS said that was correct.
CHAIRMAN TAYLOR said the jury could award $200,000. He asked if
the State had the right to appeal that decision.
MR. CUMMINGS said yes.
CHAIRMAN TAYLOR said his point was that it could take a long time
for the final decision to be made on the value. He said the
State would owe interest from the date the master's award was
appealed.
MR. CUMMINGS said the interest would be owed from the date the
deposit was made, not from the date the master's award was
appealed.
CHAIRMAN TAYLOR said the interest was accrued on the money that
was awarded above and beyond the amount made in the deposit.
MR. CUMMINGS said that was correct. He said condemnation cases
were major interferences with peoples' lives and the State didn't
really want to condemn property if it wasn't necessary. He said
the State tried to resolve issues without extensive proceedings.
He said only exceptional cases went to jury trial. He said
comments and concerns like Mr. Satterburg's were very broad and
went far beyond what SB 278 was trying to do to the eminent
domain code.
CHAIRMAN TAYLOR asked if Mr. Cummings had any further testimony
to provide. He did not.
MR. RON WOLFE, Corporate Forester, Sealaska Corporation, said SB
278 would require the State to make a reasonable and diligent
effort to negotiate the purchase of real property from a private
property owner before condemning the property. He said Sealaska
had gone through the land acquisition process twice when the
State required Sealaska land for an airport expansion and a
highway realignment and upgrade. He said Sealaska and the State
were able to negotiate equitable land exchanges in a manner that
prevented a hostile eminent domain process. He said the process
was awkward both times because the State had no requirement to
negotiate with the property owner and the rules for negotiation
were not clear.
MR. WOLFE said SB 278 would correct the situation. He said the
bill would require fair and equitable treatment while carrying
out the eminent domain process. He said the result would be that
the property owner would feel they had been treated fairly and
openly by the State and would be less likely to bring forth
litigation. He said the court would also be less likely to find
that a property owner was not treated fairly. He said Sealaska
thought these changes would be positive for the State as well as
property owners.
CHAIRMAN TAYLOR asked if there were any questions for Mr. Wolfe.
There were none.
MR. JON TILLINGHAST, independent legal counsel, Sealaska
Corporation, said at least 23 other states had adopted laws
similar to SB 278. He said the bill was based on a provision of
the model eminent domain code by the Commission on Model State
Laws, which was put together by state legislators to reflect
their judgment on the best public policy in issues like eminent
domain.
He said the scholars on eminent domain such as the author of
Nichols on Eminent Domain felt the provisions deterred
litigation. He said SB 278 would give the property owner a
bargaining chip to use at the table because the State would have
a legal requirement to be reasonable with them. He said this
would make the property owner join the process as more of an
equal rather than a victim.
He said AS 34.60.120 was basically a re-codification of federal
policy, which required the State to make every reasonable effort
to acquire property by negotiation before condemning it when
using federal monies. He said SB 278 would make that requirement
enforceable because the property owner could use that as a
defense to the condemnation.
He then addressed the proposed amendment. He said most states
with similar eminent domain laws didn't define what the State had
to do to be reasonable and diligent in trying to negotiate a
purchase. He said early in the drafting of SB 278, an example of
what might entail reasonable and diligent effort was suggested
and placed in the bill as a safe harbor. This was not intended
to be the only way the State could be reasonable and diligent,
but one of the many things the State could do. He said the
problem with using an example was that people would begin to
focus on the example. He said they struggled to come up with a
better example. He said they had come to the conclusion that the
majority of states had done the right thing by not providing an
example. Sealaska suggested the committee do the same thing.
MR. TILLINGHAST proposed a different amendment to end paragraph
(4) on page 1 at line 14 with the word "negotiation" and deleting
the text after that up through and including line 5 on page 2.
He said SB 278 would then read virtually identical to the model
eminent domain code.
3:58 p.m.
MR. TILLINGHAST said the proposed amendment (marked 22-
LS1399\A.1) would remove the existing example from SB 278 and
insert a new example. He was concerned that this example would
have the same problems. He said the example in the proposed
amendment was probably better than the example in the existing
bill. He said the example in the proposed amendment was worded
in such a way that it would no longer be an example but something
the State would be required to do in every case.
CHAIRMAN TAYLOR asked if the language regarding incapacity
cleared up difficulties that had been encountered.
MR. TILLINGHAST said that clause, which would release the State
from the requirement to negotiate with a property owner if they
couldn't be found or were not legally capable of negotiating, was
similar to almost all other states' eminent domain code.
CHAIRMAN TAYLOR asked if there were any further questions for Mr.
Tillinghast. There were none. He asked if there was anyone else
who wished to testify on SB 278. There was nobody.
He moved Amendment 1 to place a period after the word
"negotiation" on page 1 line 14 and delete the following language
through line 5 on page 2.
There being no objection, Amendment 1 was adopted.
CHAIRMAN TAYLOR shared Mr. Cummings' and Mr. Tillinghast's
concerns about placing an example in statute because the example
would become a mandated opportunity for litigation. He asked if
Mr. Cummings wished to provide further testimony.
MR. CUMMINGS said the difficulty with putting SB 278 in statute
was that there would still be litigation whether or not the State
was reasonable and diligent in its negotiations. He said SB 278
would simply provide a mechanism to delay projects, which would
cost the State money. He said it wouldn't result in changing the
way the State did business.
MR. CUMMINGS thought many people wanted the State to be in the
business of trading land. He said SB 278 wouldn't compel the
State to trade land with property owners. He said DOTPF already
had the ability to purchase land for the purposes of exchange.
He said there would need to be provisions regarding what would
trigger a land trade or how land trades should work if the State
were going to do more land trades.
He said the main argument for SB 278 was that it would give
property owners a way to defend themselves. He said the process
DOTPF used was imminently fair. He felt SB 278 would only delay
projects.
CHAIRMAN TAYLOR asked if it was correct that 23 other states had
similar statutes.
MR. CUMMINGS said he wouldn't be surprised. He said most states'
eminent domain codes weren't as liberal as Alaska's because of
the way interest was paid and costs and fees were reimbursed.
CHAIRMAN TAYLOR asked what percentage of property takings each
year ended up in some form of litigation.
MR. CUMMINGS said between 2% and 5%.
CHAIRMAN TAYLOR said 95% to 98% of the time DOTPF and the
property owner were able to come to some sort of reasonable
agreement.
MR. CUMMINGS said that was correct. He said the biggest problem
the State faced was the lack of time available to pull everything
together.
SENATOR THERRIAULT asked if SB 278 would change the process in
which DOTPF appraised the land and went to the property owners
with proposals.
MR. CUMMINGS said the State would still appraise everything and
make offers to the property owners. He said the State hired
someone who was competent to do the work and had familiarity with
the engineering principles involved. He said the appraiser
needed to be able to predict the impact of the project on the
physical features of the property. The State then invited the
property owner to make a counter offer.
SENATOR THERRIAULT said perhaps there were situations that he was
not aware of but he felt that the existing process worked well
for the most part. He wondered what would be modified in the
process if SB 278 passed that would cause automatic delay.
MR. CUMMINGS said SB 278 would allow people to answer a
condemnation complaint by saying they didn't think the State was
reasonable and diligent in its negotiations. He said they could
already question the authority and necessity for the taking and
whether it was accomplished consistent with the greatest public
good and the least private injury. He said these things were
only tangentially related to the process and could delay
projects. He said all of those things would have to be proved
before construction got started. He said the State currently
condemned the property and did a quick-take. He said if the
property owner was entitled to extra money, that would be
resolved after construction had been started. He said SB 278
would require everything to be settled before construction was
started.
SENATOR COWDERY asked what happened when a property owner had
agreed to a strip taking and later discovered that their driveway
was at a 16% grade.
MR. CUMMINGS said that depended on how the change in grade
occurred. The State would give them more money if the change was
not part of the original design when they signed the agreement.
However, the property owner would be stuck with it if the change
had been explained during the negotiations.
SENATOR COWDERY thought most property owners weren't aware of
what a 16% grade meant in their driveway until after they saw it
because they weren't engineers.
MR. CUMMINGS said the State brought the right-of-way plans and
design plans with them when they negotiated a settlement. He
said right-of-way plans showed each taking in the project and the
property owner's taking. The design plans showed the grade of
the centerlines and what the slopes would be like.
SENATOR COWDERY asked if they showed the grade of the driveway
before and after the project.
MR. CUMMINGS said they did.
SENATOR COWDERY said he didn't think so.
MR. KAUZLARICH said Senator Cowdery had mentioned working with
the Municipality of Anchorage on some projects. He said DOTPF
participated in a project in Anchorage by overseeing the
relocation efforts and the review appraisal efforts. He said the
Municipality of Anchorage employees were perhaps not as
sophisticated as DOTPF employees in doing the negotiations and
there were some communication problems.
He said the property owner was presented with a set of cross-
sections that showed the existing grade of the land as well as
the resultant grade. He said the right-of-way agent and the
property owner discussed what would happen to the property.
SENATOR COWDERY asked how many property owners would recognize
and understand what a change of grade would do to their property.
MR. KAUZLARICH said not very many. He said part of the right-of-
way agent's job was to ensure that the property owner understood.
He said if the property owner came back after the fact and said
they had no idea this would happen to their property, DOTPF would
take another look at it.
CHAIRMAN TAYLOR asked if there was anybody else who wished to
testify on SB 278. There was nobody.
SENATOR COWDERY moved CSSB 278(JUD) out of committee with
attached fiscal note and individual recommendations.
There being no objection, CSSB 278(JUD) moved out of committee
with attached fiscal note and individual recommendations.
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