Legislature(2001 - 2002)

02/26/2002 08:07 AM House CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HCR 27-LOCAL BOUNDARY COMMISSION PROCEDURES                                                                                   
CO-CHAIR MORGAN announced  that the next order  of business would                                                               
be HOUSE  CONCURRENT RESOLUTION  NO. 27,  Relating to  urging the                                                               
Local Boundary  Commission to adopt  standards and  procedures to                                                               
enable the commission  to return a petition for  a local boundary                                                               
change  to  the petitioner  when  the  commission determines  the                                                               
petition  is substantively  deficient or  in need  of substantial                                                               
amendment or supplementation.                                                                                                   
[There  was an  unnecessary motion  to  place HCR  27 before  the                                                               
Number 1181                                                                                                                     
REPRESENTATIVE  SCALZI noted  that HCR  27 is  the result  of the                                                               
contentious  Homer annexation.    Representative Scalzi  informed                                                               
the  committee  that sometimes  a  community,  to appease  a  few                                                               
people, will  submit petitions  that are too  small.   There have                                                               
been instances in  which the Local Boundary  Commission (LBC) has                                                               
rejected those small  petitions because the planning  is for five                                                               
or ten  years.  Therefore, in  order to expedite the  process HCR
27 will allow the LBC to return a petition early in the process.                                                                
REPRESENTATIVE  MURKOWSKI turned  to  the  current situation  and                                                               
inquired  as to  what  the  commission does  when  it receives  a                                                               
petition that is "out of scope."                                                                                                
Number 1358                                                                                                                     
DAN BOCKHORST,  Staff, Local  Boundary Commission;  Department of                                                               
Community  & Economic  Development (DCED),  explained that  under                                                               
the   current  process   DCED  is   responsible   for  making   a                                                               
determination  as to  whether a  petition has  all the  technical                                                               
matters in order regardless of the  merit of the facts or policy.                                                               
If a petition  is accepted for filing, the LBC  moves through the                                                               
entire  process, which  can take  a year  or more.   Although  it                                                               
isn't a  common occurrence that  petitions are "out of  whack" in                                                               
terms  of the  standards, there  have been  some such  instances.                                                               
For example,  there or  four years  ago there  was a  proposal to                                                               
carve  up  the  Fairbanks  North  Star  Borough  and  extend  it.                                                               
Although  that petition  clearly  didn't meet  the standards,  no                                                               
provision existed to allow denial  of the petition without moving                                                               
through  the entire  process.   Therefore, in  that case  the LBC                                                               
went through the entire process  and was ultimately denied.  This                                                               
resolution,  HCR 27,  encourages  the LBC  to  develop a  circuit                                                               
breaker that  would allow the LBC  to make a summary  judgment on                                                               
petitions that fail to meet  a [specified] threshold of standards                                                               
to conform to the local  government principles established in the                                                               
REPRESENTATIVE MURKOWSKI related her  understanding then that the                                                               
only way the  LBC can deny a  petition from the outset  is if the                                                               
petition has a technical deficiency.                                                                                            
MR. BOCKHORST answered  yes, and noted that the  LBC has rejected                                                               
petitions that  haven't conformed  to the  technical requirements                                                               
of law.                                                                                                                         
Number 1514                                                                                                                     
REPRESENTATIVE  KERTTULA  inquired  as   to  what  Mr.  Bockhorst                                                               
envisioned;  she  asked  whether   he  envisioned  a  preliminary                                                               
MR. BOCKHORST answered  that there are many  options available to                                                               
the  commission, one  of which  would be  analogous to  a summary                                                               
judgment proceeding  in a court  in which  a notice of  filing is                                                               
given.  In a summary  judgment proceeding citizens are invited to                                                               
comment  [and there  would be]  a quick  hearing on  the concerns                                                               
raised with the petition.                                                                                                       
REPRESENTATIVE SCALZI  turned to  HJR 18, which  limits petitions                                                               
to no more than 10 percent  of the current area or population. He                                                               
explained that  HJR 18 was  put forth  for discussion.   When Mr.                                                               
Bockhorst  was  asked whether  he  felt  HJR 18  was  beneficial,                                                               
Representative Scalzi  recalled that Mr. Bockhorst  said that the                                                               
LBC does  a good  job and makes  sound and  reasonable decisions.                                                               
Furthermore, both  those in support  of and in opposition  to the                                                               
Homer  annexation  [agreed]  that  [the  4.5  square  miles]  was                                                               
REPRESENTATIVE   KERTTULA   asked   if  regulations   are   being                                                               
promulgated now.                                                                                                                
MR. BOCKHORST replied that the  LBC did adopt regulations in July                                                               
2001.    Those  regulations,  currently  being  reviewed  by  the                                                               
Department of  Law, include some innovative  provisions that deal                                                               
with some  of the  controversial aspects  of annexation.   [These                                                               
regulations]  would require  local governments  to conduct  local                                                               
public  hearings  on  proposals   before  being  filed  with  the                                                               
Number 1781                                                                                                                     
ABIGAIL  FULLER, testifying  via  teleconference,  said that  she                                                               
believes [HCR 27] is  a good idea.  The LBC does  need to be able                                                               
to return  petitions that have  major problems.   She recommended                                                               
that the  LBC should  also be  able to return  a petition  if the                                                               
proposal is  too controversial.   Although all  controversy can't                                                               
be eliminated,  there is  often things a  municipality can  do to                                                               
reduce  the level  of controversy.    For example,  in the  Homer                                                               
annexation the  city was  repeatedly asked  to pull  the petition                                                               
and start over, which would've made  a difference.  She said that                                                               
when  the city  wasn't  willing  to pull  the  petition, the  LBC                                                               
should've instructed the city to do so.                                                                                         
Number 1828                                                                                                                     
PETE  ROBERTS  testified  via teleconference.    He  related  his                                                               
belief that the  process is quite flawed.   He recommended review                                                               
of the  following.   First, the choice  of the  annexation method                                                               
should be left to the LBC,  possibly after a short hearing by the                                                               
LBC  commissioners.     Therefore,  much  controversy   would  be                                                               
eliminated  from  these  annexations because  the  city  couldn't                                                               
start a hostile annexation as was  the case in Homer.  Second, is                                                               
the  issue of  due  process.   He referred  to  the Alaska  State                                                               
Constitution, Article  I, Section 7, which  addresses due process                                                               
in executive  branch procedures.   The process of the  LBC wasn't                                                               
anything  like due  process.   For example,  both parties  didn't                                                               
have access  to the same  number of  filings.  Third,  the public                                                               
hearing  at  the end  doesn't  serve  any  purpose more  than  to                                                               
further inflame  the situation.   Therefore, he  suggested having                                                               
this  public  hearing  prior  to  the  preliminary  report  being                                                               
completed.   In  such a  case,  consideration could  be given  to                                                               
public comment.  Mr. Roberts  urged the committee to consider his                                                               
three suggestions.                                                                                                              
MR.  ROBERTS, in  response  to  Representative Scalzi's  comments                                                               
regarding  the   hearing  suggestion,   clarified  that   he  was                                                               
suggesting  that the  final hearing  should happen  prior to  the                                                               
preliminary report.  Therefore, the  hearing would be part of the                                                               
process when  the comments would  matter and thus there  would be                                                               
time to reflect upon the comments.                                                                                              
Number 2083                                                                                                                     
DORIS  CABANA,  Alaskans  Opposed to  Annexation,  testified  via                                                               
teleconference.   Although  Ms.  Cabana  supported returning  the                                                               
petitions as  suggested in [HCR  27], she suggested that  the LBC                                                               
obtain public input  before the changes are put into  place.  Ms.                                                               
Cabana  remarked that  those impacted  by  [petitions] should  be                                                               
allowed  to vote,  even when  [the  petition] is  returned.   She                                                               
pointed out  that the  U.S. Constitution  comes before  any other                                                               
law.    She  related  her  belief  that  legislative  review  [of                                                               
annexations]  has   robbed  citizens   of  the  right   to  vote.                                                               
Therefore, the laws  need to be cleaned up and  there needs to be                                                               
more  public input.    Ms.  Cabana reviewed  what  she viewed  as                                                               
improprieties  with the  Homer annexation  process,  such as  the                                                               
limited  time [to  testify].    She commented  on  the number  of                                                               
members on the LBC that are from Anchorage.                                                                                     
Number 2197                                                                                                                     
DR.  VI JERREL,  Ph.D., Alaskans  Opposed to  Annexation, thanked                                                               
Representative Morgan for his "yes" vote  on HJR 39.  Dr. Jerrel,                                                               
Ph.D., noted  her support of HCR  27, which is a  small change in                                                               
the LBC  regulations.  She  expressed the  need to throw  out the                                                               
LBC's regulations.   She  emphasized that  the state  cannot make                                                               
any laws  above the U.S.  Constitution, which is the  supreme law                                                               
of the land.  It's unconstitutional  to rob people of their right                                                               
to vote, she said. Furthermore,  the people in the proposed annex                                                               
area should be allowed to vote.   Dr. Jerrel, Ph.D., informed the                                                               
committee  that  Robert  Erwin,  Attorney,  Alaskans  Opposed  to                                                               
Annexation,  has   noted  [in  his  filings]   the  unlawful  and                                                               
unconstitutional  reasons why  the Homer  annexation should  have                                                               
not been approved.   She urged those members  that voted [against                                                               
moving HJR  39 from committee]  to review the constitution.   She                                                               
also urged the committee to review HJR 39 again.                                                                                
REPRESENTATIVE SCALZI  announced that if  there had been  any way                                                               
he could've  recused himself he  would have.  Therefore,  he said                                                               
that he would vote with the majority of the committee.                                                                          
Number 2413                                                                                                                     
REPRESENTATIVE  SCALZI returned  to  the testimony  that the  LBC                                                               
should   be  left   to  determine   whether  the   annexation  is                                                               
appropriate rather than the city.                                                                                               
MR.  BOCKHORST   explained  that   under  current  law,   a  city                                                               
government is  permitted to  file any  petition it  wishes, given                                                               
the  standards.   The  LBC  must  consider any  local  government                                                               
boundary  change  requested  by  a municipal  government.    This                                                               
resolution encourages the  LBC to establish a  mechanism by which                                                               
it returns petitions that don't  meet the standards, which he saw                                                               
as addressing the  issue.  In further  response to Representative                                                               
Scalzi, Mr.  Bockhorst stated that controversial  is a subjective                                                               
term that would  be difficult to measure.  He  said he feels that                                                               
the  LBC   was  created  was   to  examine  proposals   that  are                                                               
controversial at the  local level, examine them  with a statewide                                                               
perspective,  and render  judgments based  on the  standards that                                                               
exist in the law.                                                                                                               
REPRESENTATIVE SCALZI  used the  Homer annexation as  an example.                                                               
He related  his belief that  the City of Kachemak  should've been                                                               
more a  part of  the dialogue.   However,  he felt  that dialogue                                                               
didn't occur  because it  would've been  very controversial.   He                                                               
asked Mr. Bockhorst if he viewed it as a controversial standard.                                                                
MR.  BOCKHORST   answered,  "I  certainly   think  it   would  be                                                               
controversial."  He related his  belief that the Homer annexation                                                               
didn't   include  the   City  of   Kachemak  partly   because  of                                                               
controversies, and  partly because  the city maintains  that it's                                                               
paying  its  own  way  in  local  costs.    Mr.  Bockhorst  said,                                                               
"Certainly,  the  question  exists  as  to  whether  or  not  the                                                               
constitutional principles  are served  of having  minimum numbers                                                               
of  local government  units when  you have  two city  governments                                                               
existing side-by-side and the  bigger city government essentially                                                               
serving and  providing services  to the  citizens of  the smaller                                                               
local  government."   He  pointed  out that  this  issue will  be                                                               
raised  when  this  committee  hears HB  296,  which  deals  with                                                               
mergers and consolidations.                                                                                                     
Number 2600                                                                                                                     
REPRESENTATIVE   SCALZI    recalled   dialogue    regarding   the                                                               
questioning  by  the  LBC  versus  the  legislature,  during  the                                                               
hearing process.   He noted  that there has been  much discussion                                                               
regarding the lack  of dialogue the LBC gave in  reference to the                                                               
public [testimony].  He indicated  the need for the appearance of                                                               
the  dialogue  to be  made  better  and  thus  he asked  if  [Mr.                                                               
Bockhorst] had any suggestions.                                                                                                 
MR. BOCKHORST turned to Ms.  Cabana's testimony that she was told                                                               
she couldn't  speak at  one of  the LBC  meetings.   He explained                                                               
that the matter wasn't on the  agenda and thus [the matter] can't                                                               
be [discussed].   He  pointed out that  the LBC  has prohibitions                                                               
against dealing  with a matter that  isn't on the agenda,  and it                                                               
also  has  prohibitions  against  ex  parte  contact.    However,                                                               
legislators  are able  to receive  individuals  to discuss  these                                                               
issues at  any time.  Mr.  Bockhorst related his belief  that the                                                               
record on the Homer annexation  was extensive and was reviewed by                                                               
the LBC.  In  regard to comments that the LBC  was reading from a                                                               
prepared   script  during   the  decisional   deliberations,  Mr.                                                               
Bockhorst refuted those  comments and explained that  the LBC had                                                               
before it  a workbook in which  the department had listed  all of                                                               
the  standards with  spots  for the  commission  members to  make                                                               
notes during the hearing.   Mr. Bockhorst related his belief that                                                               
the commission members do put forth  a tremendous out of time and                                                               
effort in their deliberations.                                                                                                  
REPRESENTATIVE SCALZI  turned to the  issue of the makeup  of the                                                               
LBC  and  the charge  that  the  LBC is  made  up  of more  urban                                                               
officials than rural officials,  and requested that Mr. Bockhorst                                                               
speak to that assertion.                                                                                                        
MR.  BOCKHORST explained  that by  statute, the  LBC consists  of                                                               
five  members,  one  member  is   appointed  from  each  judicial                                                               
district  of   the  state.     Therefore,  there   is  geographic                                                               
representation  on the  LBC.   There  is also  a  member that  is                                                               
appointed from  the state at  large.  The current  composition of                                                               
the LBC is such that the  member from the Third Judicial District                                                               
and the Chairman,  who is appointed from the state  at large, are                                                               
both from  Anchorage.   This composition  hasn't always  been the                                                               
case.   He pointed out  that there have  been cases in  which the                                                               
LBC  has consisted  of no  members  from Anchorage.   In  further                                                               
response  to Representative  Scalzi,  Mr.  Bockhorst pointed  out                                                               
that statutes  require that appointed  members have  knowledge in                                                               
the field.   He related  his belief that  the members of  the LBC                                                               
are  highly qualified  and experienced.   Although  he understood                                                               
the  concern of  overrepresentation of  Anchorage, Mr.  Bockhorst                                                               
didn't believe that  such a composition was a  poor reflection on                                                               
the LBC's work.                                                                                                                 
Number 2845                                                                                                                     
REPRESENTATIVE SCALZI  moved on to  the issue of  local officials                                                               
being recused from the issue.                                                                                                   
MR. BOCKHORST said that this was  the first time, in his 22 years                                                               
serving the LBC,   he has ever heard the  issue of recusing local                                                               
officials.    Mr.  Bockhorst  related   his  belief  that  it  is                                                               
particularly important  for local representatives to  weigh in on                                                               
the  issue.   Therefore, he  didn't  feel that  recusing a  local                                                               
official was appropriate.                                                                                                       
CO-CHAIR  MORGAN announced  that  the public  testimony would  be                                                               
TAPE 02-9, SIDE B                                                                                                               
REPRESENTATIVE MURKOWSKI  related her belief  that [HCR 27]  is a                                                               
good  first  step in  allowing  the  LBC to  address  [inadequate                                                               
petitions] early on.   She said she feels this  would be good for                                                               
the public as well as the LBC.                                                                                                  
Number 2919                                                                                                                     
REPRESENTATIVE KERTTULA returned to  the issue of a controversial                                                               
[petition] and  related her belief  that [HCR 27] is  intended to                                                               
address controversy  when there  is a substantive  legal problem,                                                               
not when  the [petition] is  merely controversial.   Furthermore,                                                               
Representative  Kerttula said  she feels  it would've  been wrong                                                               
for Representative Scalzi to recuse himself.                                                                                    
REPRESENTATIVE  HALCRO expressed  his  hope that  those who  have                                                               
testified on the  Homer annexation realize that  they have helped                                                               
make the LBC process better.                                                                                                    
Number 2828                                                                                                                     
REPRESENTATIVE MURKOWSKI moved to report  HCR 27 out of committee                                                               
with  individual   recommendations  and  the   accompanying  zero                                                               
fiscal note.  There being no  objection, HCR 27 was reported from                                                               
the House Community and Regional Affairs Standing Committee.                                                                    

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