Legislature(2003 - 2004)
04/01/2004 01:35 PM Senate TRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES
CO-CHAIR WAGONER announced SB 382 to be up for consideration.
2:15 - 2:17 - at ease
CO-CHAIR COWDERY moved to adopt the CS to SB 382, version /D.
There were no objections and it was so ordered.
MR. JEFF OTTESEN, Department of Transportation and Public
Facilities (DOTPF), said that two lawsuits have erupted using
the same legal argument, both regarding bonded projects that
voters approved two years ago. If the lawsuits are upheld by the
courts, it has the potential to shut down and delay projects all
across the state.
The issue before you is a statute that has been on the
books for a long time - since '75. It's never been
litigated before until now. AS 09.55.275 requires the
platting authority, which is basically borough or city
governments, to require the state, on a condemnation
related lawsuit, to go through that plat as if it were
a private landowner. Inherently, a replat involving
condemnation is going to be different than a replat
that's done voluntarily... By it's very nature
condemnation is not a voluntary act. You can't get the
landowners to put a signature on the application for
replat. They are simply not ready to do that; they're
in no mood to do that. The argument being held up in
the courts is that we have to go through exactly the
same procedure as a voluntary subdivision.
To give you some idea of the magnitude of the problem
- the project at Kenai River, Soldotna, that is slated
to go to construction this summer - is now in
litigation. We think it will be held up. The C Street
extension in Anchorage would also be held up; it's in
litigation. The North Pole interchange in Fairbanks,
our right-of-way staff believe is at risk. Even a
project in Bethel - about a year ago the city attorney
saw this conflict and had the Bethel City Counsel pass
an ordinance that exempted that particular project...
so this can be a rural problem as well.
SENATOR LINCOLN asked how the CS is different from the original
bill and how does it prevent further litigation.
CO-CHAIR COWDERY explained the original bill was just a
beginning and that further DOT research provided the update.
MR. OTTESEN said the intent of the earlier draft has not
changed, but the language is better.
MR. PETER PUTZIER, Department of Law (DOL), said that most of
the changes were in style and he reviewed those.
In a real nutshell, AS 09.55.275 has a sentence that
says that the platting authority typically in a
municipality shall apply the standards in the same
manner between DOTPF and private landowners. The
conflict or the problem is what "in the same manner"
means. The argument is being made in court that
essentially in '75 there's a legislative intent to put
what I would describe as a legislative straight jacket
on municipalities to require a particular
procedure.... For instance someone who wants to
subdivide property and a right-of-way acquisition -
the two proceedings as Mr. Ottesen pointed out - a
right-of-way acquisition is quite a different animal
than what goes on with respect to your typical
subdivision....
SENATOR THERRIAULT asked if the 1975 language actually said
there would be one uniform standard.
If we fix this problem for DOTPF, do the
municipalities still have a problem that they've got a
variety of standards... or are we fixing it for DOTPF
and the municipalities at the same time?
MR. PUTZIER explained that the fix intends to say that
municipalities can apply a variety of standards in their
discretion to how they want to treat the requests for replat
approval. The legislature is not demanding a particular process,
but is giving local governments discretion to deal with it in a
variety of ways.
SENATOR THERRIAULT asked if the state and a private landowner
have to go through the same process to subdivide and sell under
this bill.
MR. PUTZIER said that would be a different analysis. Section 3
only applies this bill to right-of-way acquisitions only.
TAPE 04-14, SIDE B
CO-CHAIR WAGONER asked if these projects had been on the books
for 10 years or more and if someone is trying to obstruct them.
MR. PUTZIER replied with an explanation of the process. When
DOTPF is unable to come to an agreement with a particular
landowner, the project will file a condemnation action. The
landowner then has the right to file an authority and necessity
challenge, which says the DOT didn't follow the steps it was
supposed to and, therefore, can't take the property.
SENATOR LINCOLN asked if this legislation is retroactive, would
that help communities go forward with their projects.
MR. PETZIER replied that both cases are in Superior Court now.
One has an oral argument scheduled for next week and a decision
could come out at any time; the other one has yet to be
scheduled for briefing and argument. This legislative
clarification would be presented to the court as additional
evidence as to what legislative intent was. "Our hopes is that
both of the lawsuits would be defused...."
SENATOR OLSON asked if this bill passes, how will the public be
protected from the government acting as a bully to go ahead and
take property that may have been in a family for centuries or
property that most people would want to stay were it is.
MR. PUTZIER answered that the eminent domain process has stood
on its own for years. It has a myriad of restrictions and hoops
that DOTPF always has to jump through - a design process with
public notice and an environmental process with public notice.
The municipal role is to have input. "This isn't in any way
diminishing existing eminent domain rights that are already on
the books and followed by DOTPF."
SENATOR OLSON wanted to make sure that a public individual who
has to hire an attorney to represent him is protected against
eminent domain proceedings that may being used unduly against
him.
MR. OTTESEN reiterated that eminent domain is a very heavy-
handed power of government. Consequently, both state and federal
law heavily regulate the application of that power. He spoke
with the right-of-way chief in the northern region who was in
the department when this was passed in 1975 who said that DOT
was being heavy handed with its replats at that time. It was
taking property; it wasn't filing the paperwork with local
governments or replacing monuments and property stakes that were
officially installed by registered land surveyors. The analysis
was a reaction to the wrongs of the department 30 years ago. "We
don't want to do away with those protections...."
SENATOR OLSON said his last concern is if there is any
resistance from the municipalities on the proposed legislation.
MR. OTTESEN replied that this legislation literally started 10
days ago and this is its first public hearing.
CO-CHAIR COWDERY moved to pass CSSB 382(TRA) from committee with
individual recommendations and accompanying fiscal note and
asked for unanimous consent. There were no objections and it was
so ordered.
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