Legislature(2003 - 2004)
05/05/2004 09:04 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 395(TRA)
"An Act relating to application of municipal ordinances
providing for planning, platting, and land use regulation to
interests in land owned by the Alaska Railroad Corporation;
authorizing the Alaska Railroad Corporation to extend its rail
line to Fort Greely, Alaska; authorizing the Alaska Railroad
Corporation to issue bonds to finance the cost of the
extension and necessary facilities and equipment; and
providing for an effective date."
This was the second hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated this bill, "has two issues: Section 1 had to
do with the Railroad and planning and zoning, and Section 2 is the
$500 million extension to Greely."
Co-Chair Green moved for adoption of CS SB 395, 23-LS1965\Q, as a
working document.
ZACK WARWICK, Staff to Senator Gene Therriault, explained that the
committee substitute incorporates the amendments made during this
bill's last hearing in the Senate Finance Committee. In addition, a
repeal date of July 1, 2005 was inserted in page 4, line 19, and
Section 7, of this committee substitute. After discussion with
local municipalities and boroughs, a task force was also added with
the purpose of forming a plan, which would be presented to the
legislature during the next legislative session. The task force is
detailed on page 3, line 10, Section 5.
Co-Chair Wilken asked if the language of the committee substitute
was acceptable to the Alaska Railroad Corporation.
PAT GAMBLE, President and Chief Executive Officer, Alaska Railroad
Corporation, Department of Community and Economic Development,
affirmed.
Co-Chair Wilkin inquired if funding for the task force would come
from each of the participating bodies.
Mr. Gamble responded that the participating bodies would pay for
the expense of travel to and from the task force, but any
administrative funding would be compensated by the Railroad.
Co-Chair Green requested clarification of the language of Section
5(c) on page 4, lines 9 - 11, establishing the Railroad Planning,
Platting, and Land Use Regulation Task Force which reads as
follows.
(c) The members of the task force appointed under (a)(3)
and (4) of this section are not eligible for compensation but
are entitled to per diem and travel expenses authorized for
boards and commissions under AS 39.20.180.
Co-Chair Wilken explained that all task force members would receive
per diem and travel expenses, but suggested that only legislators
would receive compensation. He asked the witness to confirm his
interpretation.
Mr. Warwick corrected that the members under subsection (3) and
(4): one member of the Alaska Railroad Corporation and the members
who are municipal officials, would not be entitled to compensation,
but would be entitled to per diem expenses.
Co-Chair Wilken clarified that those members of the task force
listed on page 3, line 19 through page 4, line 4, would be entitled
to travel and per diem paid for by the State.
Mr. Warwick affirmed.
Co-Chair Wilken stated that a conceptual amendment is needed to
change subsection (c).
Senator Bunde pointed out that an amendment would require an
additional fiscal note.
Co-Chair Wilken asked the Committee members if they "envision" the
State's compensation of the travel and per diem expenses in
question.
Co-Chair Green answered, no.
Co-Chair Green and Co-Chair Wilken discussed the technical details
of the amendment.
Senator Bunde stated his intent that the task force members listed
on page 3, lines 23 through page 4, line 4 would not be entitled to
per diem compensation.
Amendment #2: This amendment provides that the non-legislative
members of the task force are not entitled to compensation or per
diem and travel expenses.
Co-Chair Wilken moved for adoption.
The amendment was ADOPTED without objection.
Amendment #3: This amendment inserts "to the extent permitted under
49 U.S.C. and 701, the Interstate Commerce Commission Act (ICCTA)"
in Section 1(b), amending AS 42.40.390 on page 1, line 11, of the
committee substitute. The amended language reads as follows.
(b) Municipal ordinances providing for planning,
platting, and land use regulation adopted under AS 29.35.180
or other law do not apply to the land of the corporation, to
the extent permitted under 49 U.S.C. and 701, the Interstate
Commerce Commission Termination Act (ICCTA) unless the land is
leased to another person by the corporation and the
corporation has not retained a right to use the land during
the term of the lease.
Co-Chair Wilken moved for adoption and stated the intention of this
amendment.
[This amendment] would clarify that the Railroad exemption of
municipal land use or ordinance applies only to the powers
granted by the federal government."
Co-Chair Wilken objected for discussion.
Mr. Gamble explained that a similar proposal had been discussed in
a House of Representatives Committee hearing. The Alaska Railroad
Corporation's legal staff reviewed the proposal and attempted to
draft language that "mirrored" the federal law. The issue of the
Railroad's land use has required specifically defining the core
operations of a railroad. A railroad's operations could be divided
into two categories: the movement and support of trains, and land-
use issues. This amendment would work towards bringing the
consensus required to find a solution satisfactory to both the
Alaska Railroad Corporation and the municipalities. He supported
the concept of the amendment.
Mr. Gamble added that he had a submission issued by the Alaska
Railroad Legal Department dated May 5, 2004 [copy on file], that
"amplified" the language in Amendment #3 and defined the core
operational issues of the Railroad.
Co-Chair Wilken asked if the document is a clarification of
Amendment #3.
Mr. Gamble affirmed, and added that the document very closely
replicates the federal law.
There was no objection and the amendment was ADOPTED.
SFC 04 # 107, Side B 09:52 AM
AT EASE 9:52 AM / 9:52 AM
Co-Chair Wilken asked for clarification of the document issued by
the Alaska Railroad Legal Department.
Mr. Gamble responded that Amendment #3, while adding the federal
land use language, did not address all of the municipalities'
concerns. The document encompasses the amendment, but would also
speak to certain local concerns not addressed in the amendment.
Co-Chair Wilken asserted that he does not want the Railroad's
document to be attached to this bill. He offered that another
member of the Committee could recommend consideration of the
document and its adoption into this legislation.
Co-Chair Green qualified that this document addressed certain
short-term concerns she had heard vocalized by the municipalities.
She spoke to Mr. Gamble's statements regarding rail operations
versus land use operations.
Co-Chair Wilken asked the witness to explain paragraph (a) of the
Railroad document.
Senator Hoffman asserted that paragraph (a) consists of existing
State law.
Co-Chair Wilken asked the witness to explain paragraph (b) of the
Railroad document.
Mr. Gamble responded that the first portion of paragraph (b)
references a number of laws applying to the federal exemption from
planning and zoning that apply to railroads. The federal exemption
language pertains to core railroad operations, and the language in
this section of the paragraph has been directly transferred from
the federal exemption. The second underlined portion of the
paragraph is a clarification that expounds on the federal exemption
by providing a more detailed description of the Railroad's
operations. This portion was included to address the concerns of
the municipalities.
Co-Chair Wilken asked the witness to explain paragraph (c).
Mr. Gamble answered that paragraph (c) is a recommendation from the
Fairbanks North Star Borough that provides for greater public
participation in the Railroad's land use decisions.
Co-Chair Wilken inquired if paragraph (b) and (c) would offer
protection to the Railroad from actions taken by other parties.
Mr. Gamble responded that the document offers the Railroad "the
best protection we have." The language would provide the Railroad
the same protection that it has received for the last eighteen
years.
Co-Chair Wilken suggested the Committee provide the task force the
opportunity to revisit the issue.
Amendment #4: This amendment inserts new language into Section 1,
establishing, Sec. 42.40.390. Land use rules, on page 1 of the
committee substitute. The new language reads as follows.
(c) By January 10 of each year, the corporation shall
provide notice to municipalities of any new land use proposed
for that year by the corporation within municipal boundaries.
The corporation shall provide amended notice if a proposed
land use is changed or an additional land use is proposed
during the course of the year. Except in the event of an
emergency, an affected municipality shall have at least 30
days after its receipt of the notice to provide advisory
comment to the corporation. In the event of an emergency, the
corporation will provide notice to an affected municipality
promptly after the event.
Co-Chair Wilken moved for adoption.
The amendment was ADOPTED without objection.
Amendment #5: This amendment changes Section 1(b) and adds a new
subsection to Section 1, establishing, Sec. 42.40.390. Land use
rules, on page 1 of the committee substitute. The amended and new
language reads as follows.
(c) Pursuant to 49 U.S.C. 10501(b), municipal ordinances
providing for planning, platting, and land use regulation
adopted under AS 29.35.180 or other law do not apply to the
practices, routes, services and rail facilities of the
corporation and the construction, acquisition, operation,
abandonment or discontinuance of spur, industrial, team,
switching, or side tracks or other rail facilities on land of
the corporation unless the land is leased to another person by
the corporation and the corporation has not retained a right
to use the land during the term of the lease. For the purposes
of this section, the term "rail facilities" includes tracks,
rail yards, repair shops and maintenance buildings, freight
and passenger terminals, rail car loading and unloading
structures, operation centers, supply warehouses,
communication structures and other facilities directly related
to railroad operations. Notwithstanding the foregoing, the
term "rail facilities" does not include rock quarries or
gravel pits.
(d) By January 10 of each year, the corporation shall
provide notice to municipalities of any new land use proposed
for that year by the corporation within municipal boundaries.
The corporation shall provide amended notice if a proposed
land use is changed or an additional land use is proposed
during the course of the year. Except in the event of an
emergency, an affected municipality shall have at least 30
days after its receipt of the notice to provide advisory
comment to the corporation. In the event of an emergency, the
corporation will provide notice to an affected municipality
promptly after the event.
This amendment is to be incorporated with the changes made by
Amendment #3 rather than supersede the changes.
Co-Chair Green moved for adoption.
Co-Chair Wilken objected for discussion.
Senator Hoffman, Co-Chair Wilken and Co-Chair Green clarified that
the changes made by Amendment #5 would not supersede the changes
made by Amendment #3.
Co-Chair Wilken asked if the language in Amendment #3 should be
added to Amendment #5 if it is adopted.
Co-Chair Green recommended that the language in Amendment #5 be
added to the language in Section 1 of this bill as amended. She
restated her support of Amendment #5.
Co-Chair Wilken removed his objection and the amendment was
ADOPTED.
The adoption of Amendment #5 superseded the action taken with the
adoption of Amendment #4.
Amendment language was attached to and distributed with committee
substitute Version "Q". The amendment was drafted by the Division
of Legal and Research Services and assigned the work order number,
23-LS1965\H.1 and lists Senator Therriault as the sponsor. The
amendment would change the title of the committee substitute to
insert "and to notices of proposed land uses by the corporation".
The amendment would also insert new language in Section 1 on page
1, following line 12, to read as follows.
(c) By January 10 of each year, the corporation shall
provide a notice to each municipality of all new land uses the
corporation proposes to begin that year within the municipal
boundaries. The corporation shall provide a supplemental
notice during the year if a previously proposed land use is
changed or an additional land use is proposed to begin. After
receipt of a notice or supplemental notice, the municipality
shall have at least 30 days to provide advisory comments to
the corporation before the corporation begins operations under
a new land use that is necessary to address an emergency
situation without providing prior notice to the municipality.
The corporation shall provide notice of that emergency land
use to the municipality promptly after beginning operations.
The intent of the Committee was to adopt the committee substitute
only. A member of the Committee did not sponsor this amendment.
Co-Chair Wilken asked for an explanation of this amendment.
Mr. Warwick clarified that the language in the attached amendment
was included in Amendment #5.
The amendment was NOT OFFERED.
Co-Chair Green referenced "Resolution Serial No. 04-072", a
resolution adopted by the Matanuska-Susitna Borough Assembly [copy
on file]. The Borough is in support of the removal of the language
of Section 1. The Borough might be satisfied by the adopted
amendments because they address the community's primary concerns
with this legislation.
JOHN DUFFY, Matanuska-Susitna Borough, testified via teleconference
from an offnet location that the Borough prefers that the blanket
exemption be removed, but does agree that the inclusion of ICCTA in
Amendment #3 would provide the Borough "adequate" protection. The
Borough supports the creation of the task force. He expressed his
appreciation to the Committee for the time spent on this
legislation.
Co-Chair Green mentioned that she would provide Mr. Duffy with the
amendments adopted during this hearing.
Mr. Gamble questioned which Matanuska-Susitna Borough resolution
was being discussed. He clarified that to his knowledge the Borough
had passed two resolutions, one being an anti-noise and vibration
resolution that the Railroad would not be exempted from. He
expressed that the Railroad should be exempted from that
resolution, and emphasized his concern over the lack of cooperation
the Borough exhibited.
Mr. Duffy clarified that the resolution referenced by Mr. Gamble
was actually an introduction; the ordinance had not passed, and
would be heard again at a later date.
Mr. Gamble responded that the Railroad would discuss the anti-noise
and vibration resolution with the Borough at a later date.
Co-Chair Wilken clarified that the resolution being considered by
the Committee was Resolution Serial No. 04-072.
Co-Chair Wilken requested a map indicating the location of the rail
lines proposed by this legislation.
Mr. Gamble indicated he would supply such a map.
Co-Chair Green offered a motion to report CS SB 395, 23-LS1965\Q,
as amended, from Committee with individual recommendations and a
new fiscal note.
Senator Bunde objected to comment.
Senator Bunde removed his objection.
Without objection CS SB 395 (FIN) MOVED from Committee with a new
zero fiscal note from the Department of Community and Economic
Development dated 5/4/04.
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