04/20/1995 01:05 PM House CRA

 HB 154 - REGULATORY TAKING OF PRIVATE PROPERTY                              
                                                                               
 Number 620                                                                    
                                                                               
 CO-CHAIR IVAN then indicated the committee would take up HB 154               
 sponsored by Representative Kohring.  He asked that Co-Chair                  
 Austerman, representing the subcommittee on the bill, discuss the             
 concerns on the bill.                                                         
                                                                               
 CO-CHAIR AUSTERMAN stated the recommendations had been distributed            
 to committee members and Representative Kohring had provided a                
 response.   He noted that it had been suggested that the                      
 subcommittee recommendations be attached and forwarded to House               
 Judiciary since most of the issues were under their purview.                  
                                                                               
 Number 640                                                                    
                                                                               
 CO-CHAIR IVAN asked for testimony from those on teleconference,               
 starting with Tom Boedecker of Kenai.                                         
                                                                               
 Number 649                                                                    
                                                                               
 TOM BOEDECKER, Borough Attorney for Kenai Peninsula Borough,                  
 expressed his concerns regarding this legislation.  He interpreted            
 the focus of the sponsor to be dealing with takings by regulatory             
 action; however, the definition of governmental action was too                
 broad to be limited to that.  He also expressed concern regarding             
 assessments of property which may be redundant in existing law.  Of           
 particular concern to him were the guidelines to be developed by              
 the Attorney General (AG).  Under the bill it was specified the               
 guideline to be developed by the AG would not alter the law beyond            
 what the Constitution provides.  He felt the AG would be very                 
 conservative in the viewpoints and the guidelines, and would rule             
 that things were takings much more often than not.  It raised the             
 question of immunity of local officials.                                      
                                                                               
 TAPE 95-16, SIDE A                                                            
 Number 000                                                                    
                                                                               
 JON ISAACS, Anchorage, expressed concern on the current version and           
 preferred the C version which developed guidelines for government             
 to follow and has a much more reasonable definition of government             
 action.  It takes into account the effect of government takings on            
 property tax.  He felt the K version of the bill was too broad and            
 would create a legal and financial nightmare for both state and               
 local governments and private citizens.                                       
                                                                               
 Number 048                                                                    
                                                                               
 BEN SUDDATH, testified via teleconference from Seward, outlining              
 personal problems he had encountered regarding this issue.                    
                                                                               
 Number 131                                                                    
                                                                               
 BILL CUMMINGS, Assistant Attorney General, Department of Law,                 
 indicated he thought this legislation was quite revolutionary and             
 felt there were some serious questions that needed to be addressed.           
 He stated there were provisions in the legislation that were                  
 unconstitutional, ambiguous, and major departures from public                 
 policy.  His main concern was the constitutional issues which were            
 in Section 3 of the bill.  He felt there was a question of what the           
 effect was to be of the guidelines the AG was to prepare.  The                
 Constitution gave only the legislature the right to enact laws.               
 Under the provisions of the bill, funding of the damage award was             
 to come from the budget of the agency doing the taking.  He                   
 indicated there was a constitutional problem in that appropriations           
 are made to the agency for certain activities and can't be spent              
 for other things.  Another problem was that a person who suffers a            
 regulatory taking was to be fully compensated.  The problem was the           
 definition does not include all the constitutional provisions                 
 already provided.  The final problem he felt was with the interest            
 provisions using the London Interbank rate.  The norm in Alaska is            
 to pay the legal interest rate which is currently set by statute at           
 10.5 percent and also applies in condemnation cases.  Many of the             
 takings in this bill result from physical invasions or depravation            
 of the benefits of ownership.  In the cases where the London                  
 Interbank rate would be lower than 10.5 percent, the people would             
 have a great chance of prevailing on a constitutional argument that           
 they were denied equal protection under the law because there is no           
 logical difference between a person experiencing an administrative            
 taking and one who experiences a more traditional taking.   One               
 other area of concern was the taking of access from property.  The            
 bill provides that payment be made for depravation of access and is           
 left with two provisions; to buy out the parcel of land or provide            
 access to it.  Buying out the land is good public policy; however,            
 providing access in addition to paying for damages is like double             
 payment.                                                                      
                                                                               
 Number 265                                                                    
                                                                               
 SARA HANNAN, Alaska Environmental Lobby, expressed strong                     
 opposition to the bill.  She also expressed strong disagreement               
 with the idea of passing this legislation on to the next committee            
 without addressing the problems identified.                                   
                                                                               
 Number 318                                                                    
                                                                               
 CO-CHAIR IVAN noted that the subcommittee had brought forward                 
 issues that the House Judiciary Committee would better address.               
                                                                               
 Number 323                                                                    
                                                                               
 TOM BOUTIN, Director, Division of Forestry, Department of Natural             
 Resources, stated this legislation would be devastating to the                
 Alaska Forest and Resources Practices Act.  The Act statutorily               
 requires a great deal of protection of fish habitat and water                 
 quality that are takings under HB 154.  In Southeast Alaska alone,            
 for buffer strips, he felt that the impact could be as much as $200           
 million.  The division's budget was only $7 million annually, which           
 could not begin to cover the costs.  He reiterated that this                  
 legislation had severe ramifications on the Forest Practices Act              
 and would consider most of their actions as takings, which would be           
 very expensive.                                                               
                                                                               
 Number 361                                                                    
                                                                               
 CRAIG LYON, House Researcher to Representative Kohring, stated that           
 they appreciated the time the committee and subcommittee had taken.           
 He hoped the memo had addressed some of the concerns of the                   
 subcommittee and supported passing the legislation on to the House            
 Judiciary Committee.                                                          
                                                                               
 Number 371                                                                    
                                                                               
 REPRESENTATIVE KOTT stated he was concerned that the response to              
 the subcommittee's questions had only been received just prior to             
 the beginning of the committee meeting.                                       
                                                                               
 Number 384                                                                    
                                                                               
 REPRESENTATIVE VEZEY moved that the committee pass CSHB 154(CRA)              
 out of committee with individual recommendations and attach the               
 subcommittee's letter of recommendations for the next committee of            
 referral.                                                                     
                                                                               
 Number 392                                                                    
                                                                               
 REPRESENTATIVE ELTON expressed objection.  He expressed concern               
 that the committee should be incorporating village and municipal              
 input into the legislation.  He felt the legislation had tremendous           
 impact on local governments and should address the issues during              
 the interim as was the recommendation of the subcommittee.  He                
 noted that the Departments of Law and Natural Resources had                   
 presented many reservations.  He expressed a concern on the                   
 retroactivity clause in the bill and felt the committee was not               
 being responsible.  He maintained his objection.                              
                                                                               
 Number 450                                                                    
                                                                               
 CO-CHAIR IVAN asked for a roll call vote.  The motion was adopted             
 with Representatives Austerman, Ivan, Kott and Vezey voting in                
 favor of the motion and Representative Elton voting against the               
 motion.  Co-Chair Ivan noted that the bill had moved to the next              
 committee.