Legislature(1993 - 1994)
02/10/1994 01:00 PM CRA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 398 - LAND CONVEYED TO & FROM MUNICIPALITIES Number 499 RON SWANSON, DIRECTOR, DIVISION OF LANDS, DEPARTMENT OF NATURAL RESOURCES, stated, "When I last testified, we were dealing with the sponsor substitute and I raised several concerns. Following that particular hearing I got together with representatives of the City of Whittier, Aleutians East Borough, and (the Department of) Community and Regional Affairs (DCRA), to address those concerns and we did come to agreement with basically a different bill, which now I think is embodied in the committee substitute for HB 398. It does read a little bit different than what you had before." REPRESENTATIVE BUNDE moved that the draft committee substitute be brought before the committee. There were no objections. MR. SWANSON continued, "Section two has the new rewrite of the conveyance of tide and submerged lands to various municipalities. One concern I think DCRA will bring up is the definition of municipalities is not included in this legislation, but we have expanded the intent here to include all municipalities including boroughs, which is not in the original legislation. What we agreed to do is limit the conveyances to municipalities, to areas that are either developed for waterfront development or suitable for waterfront development. This will provide local control of particular developments, (and) will limit the liability to the state because the state will no longer be the landowner. It will become the municipality's concern. We do have a land classification called waterfront development, which would include what it actually says is `waterfront development for a variety of activities'. In order to make the conveyance, the use of the land could not reasonably interfere with navigation or public access. It has to be classified waterfront development or suitable for waterfront development and be consistent with the land use plan either adopted by the state, local municipality, or a coastal policy counsel. And the land would be required for the accomplishment of an improvement or development, and approved by the municipality. The application by a municipality must go through a finding by the director that it is suitable for those particular activities, and at that point we also inserted a step in the process where...(without patent transference) once we made a finding that it was in the best interest of the state to convey a particular parcel of land for waterfront development, we would make then a conveyance to the municipality where they could then start issuing leases on that particular property, without waiting for the survey. If they did want patent they would, of course, have to complete the survey and if there are any conflicts in property rights, of course, they would have to conduct the survey. This would get development properties on line much quicker than what would otherwise be available." Number 544 CHAIRMAN OLBERG asked, "You're saying now that any municipality can apply for their tidelands?" RON SWANSON confirmed that and said, "...last changes that we made were that any conveyance under this legislation would require access to and along easements to be reserved that are currently required in AS 38.05.127, and that any land would be subject to the public trust, and if anybody thought the public trust was being violated you could, of course, go to court immediately. And lastly, any municipality that dissolves, the land would automatically revert back to the state. The last thing which I forgot to mention earlier is, this particular bill would not increase or diminish a municipality's land entitlement under AS 29.65, but in the same light, any acreage conveyed would not be charged against that particular entitlement. I expect the acreage to be fairly small, but very important though for revenue generation for municipalities." REPRESENTATIVE BUNDE said, "You mentioned a concern about defining a municipality. Do you think we ought to address that concern?" MR. SWANSON deferred that questions to DCRA. Number 574 JOHN WALSH, SPECIAL ASSISTANT, DCRA, testified, "In work drafts and discussions, we had discussed the expansion of this bill from strictly municipalities to include boroughs, so if we're all using the term municipality loosely...it one day meant just cities, first and second class cities. If you would like to expand that definition, I think it would be prudent to include that in the language here. For purposes of clarification, I think it would be in your best interests to precisely define exactly what you mean by municipality. The previous draft had a different interpretation of that same phrase." CHAIRMAN OLBERG asked, "Does your department have a definition of municipality that includes all municipalities including boroughs?" MR. WALSH proceeded, "I think for the purpose of this section...AS 38.05.825, municipality means a home rule, first or second class city and a home rule first, second or third class borough and a unified municipality. So you could insert that, to this language and it would suffice for the purpose of this chapter." CHAIRMAN OLBERG said, "I think we'll just do that..." and asked for a motion. Number 595 REPRESENTATIVE TOOHEY moved that DCRA's definition be incorporated into CSHB 398 as an amendment and be adopted. There were no objections. MR. WALSH cautioned the committee, "The burden is going to be at the director or the commissioner level of DNR to restrict that, and there's going to be intense pressure upon that department, and some of these boroughs are quite armed with legal staff and whatnot, and the pressure upon the state agency and the attorney general's office could be overwhelmed. So I would ask you to consider it in the intent language, either now or on the floor, what your express intent is with respect to those phrases, above and beyond the language in the bill." MR. SWANSON said, "I think we've captured the thought of the land classified for waterfront development. That's very clearly laid out in regulation and it also has to be consistent with the land use plan or comprehensive plan. So I think it goes through very exhaustive public process with what is truly waterfront development. It's not just a theory." REPRESENTATIVE BUNDE asked, "This would not subtract from the acreage that the municipality is allowed and my reaction is why not, as that may encourage more careful consideration of possible selections." MR. SWANSON said, "That was my original position, that it would be charged against entitlement. There were some valid concerns raised by some of the municipalities of their limited entitlement. They need some uplands, some tidelands, the two kind of come together...because we restricted it down to actual waterfront development. Most of that acreage is going to be pretty minimal." Number 636 RICH WILSON, CITY ADMINISTRATOR, CITY OF ST. GEORGE, testified via teleconference in support of CSHB 398, "I'm pleased to see (this) is being addressed very adequately. For many years, we've been working in our city to obtain leases and for various reasons, no fault intended on any part, but it just takes a long time. As such, it's limiting the ability of the public body at the municipal level to exercise their responsibilities. I'm pleased that the DNR and the municipalities proposing this and legislators proposing this are in agreement on all those key provisions." CHAIRMAN OLBERG asked, "If a municipality receives a land entitlement that adjoins the ocean, does that end at the mean high tide mark. Where is the boundary in the land entitlement now?" MR. SWANSON said, "It's at mean high tide." CHAIRMAN OLBERG said, "When we talk about tidelands, we are talking about land that's underwater half the time perhaps." MR. SWANSON said, "The definition of tideland is the line between mean high tide and mean low tide and submerged lands means...underneath saltwater all the time." LEE SHARP, ATTORNEY, ST. GEORGE AND ALEUTIANS EAST BOROUGH, via teleconference, testified, "In municipal law, municipality means all municipalities and while it's not defined in Title 38, it is defined in Title 29. AS 29.71.800 (13), that encompasses every kind of municipality in Alaska, but the intent was certainly that it include all municipalities and boroughs whether home rule or general law. As for the concern about all the tidelands within boroughs, I think about all that means is that boroughs have more tidelands to select from than you would expect in the cities, but it doesn't mean they're going to get anymore because the provision in here...is that tidelands be required for a project or an improvement. I don't think that we should be concerned that the boroughs are going to be able to abuse this. As to charging against entitlement, some cities at this point have no entitlement whatsoever; these lands are going to come to the municipalities with some restrictions on them that are not going to be put on lands that they select under their general land entitlement. They don't have to be classified for a particular use. So if you charge it against that, then maybe you ought to give them the tidelands without any restrictions on them, but we know there have to be restrictions on them, so these really aren't of the same nature." TAPE 94-7, SIDE B Number 015 REPRESENTATIVE TOOHEY asked, "This fiscal note, does that reflect the transfer of the lands to the municipalities for the surveying, and can that be absorbed by the developer." MR. SWANSON said, "That fiscal note was based on the original bill, the sponsor substitute, when I was required to convey all tidelands. Under this particular bill (CSHB 398), we will come in with a zero fiscal note because the people that I am now administering the leases with, I can just turn around and convey the land to the municipalities instead of having to administer leases all the time." There was discussion regarding earthquakes. Number 052 GARY WILLIAMS, CITY MANAGER, WHITTIER, via teleconference, testified, "I'd like to compliment all those who've been involved in the production of the current committee substitute. I believe it meets all the criterion for a good piece of legislation, because it's good policy to create legislation which solves problems and creates opportunities for rural public interest. This bill provides potential economic opportunities for all sixteen boroughs in the state, for at least one first class city and by my count, 49 second class cities. The conveyance of tide and submerged lands under this bill will, in my view, not result in wholesale demand for conveyances and place unreasonable demands on the ability of DNR to process conveyances. I urge a do pass on this legislation." REPRESENTATIVE ED WILLIS asked about the significance of the repealer on CSHB 398. CHAIRMAN OLBERG said, "That is the paragraph 11 of section 1, (which says) `is repealed on January 1, 1998,' they have until then to get that done and then that expires." Number 145 REPRESENTATIVE BUNDE moved to pass CSHB 398 as amended out of committee on individual recommendations with a zero fiscal note. There were no objections. Number 175 ADJOURNMENT CHAIRMAN OLBERG adjourned the meeting at 2:03 p.m.