Legislature(1993 - 1994)

02/10/1994 01:00 PM CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 398 - LAND CONVEYED TO & FROM MUNICIPALITIES                              
  Number 499                                                                   
  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                   
  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                       
  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                                                                   
  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                             
  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."                                  
  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                                                                   
  CHAIRMAN OLBERG adjourned the meeting at 2:03 p.m.                           

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