Legislature(2005 - 2006)HOUSE FINANCE 519

04/27/2005 01:30 PM FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation hearing: TELECONFERENCED
Mental Health Trust Authority
+ HB 257 STATE PROCUREMENT ELECTRONIC TOOLS TELECONFERENCED
Moved CSHB 257(JUD) Out of Committee
+ HB 243 REG. COST CHARGES: UTILITIES/PIPELINES TELECONFERENCED
Heard & Held
+ SB 103 OIL & GAS: REG. OF UNDERGROUND INJECTION TELECONFERENCED
Scheduled But Not Heard
+ HB 218 PRIVATE HATCHERY COST RECOVERY FISHERIES TELECONFERENCED
Heard & Held
+ HB 279 OUTDOOR ADVERTISING; ENCROACHMENTS TELECONFERENCED
Moved CSHB 279(FIN) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 67 CLAIMS AGAINST HEALTH CARE PROVIDERS TELECONFERENCED
Moved HCS CSSB 67(FIN) Out of Committee
+= HB 13 SCHOOL CONSTRUCTION BOND REIMBURSEMENT TELECONFERENCED
Moved CSHB 13(FIN) Out of Committee
+= HB 53 CHILDREN IN NEED OF AID/REVIEW PANELS TELECONFERENCED
Moved CSSSHB 53(FIN) Out of Committee
HOUSE BILL NO. 279                                                                                                            
                                                                                                                                
     "An Act relating to encroachments in the right-of-way                                                                      
     of a highway."                                                                                                             
                                                                                                                                
REPRESENTATIVE HAWKER, SPONSOR, spoke in support of the                                                                         
legislation,    which   was    introduced   by   the    House                                                                   
Transportation Committee, on  behalf of Representative Hawker                                                                   
and   Representative   Stoltze.   He  maintained   that   the                                                                   
legislation would  clear an inconsistency in  the current law                                                                   
regarding  the  use  of highway  right-of-ways.  Federal  law                                                                   
requires all that encroachments  from project construction be                                                                   
removed  from  the  right-of-way.  He gave  examples  of  how                                                                   
current law  has inconvenienced  businesses in  his district.                                                                   
House Bill  279 inserts an  exception into statute  that will                                                                   
grandfather current  encroachments in the  right-of-way. They                                                                   
may remain until such time as  [the state of Alaska] needs to                                                                   
have the  encroachments removed.  He mentioned Amendment  #1,                                                                   
which would  further clarify  the rights  of the state.  (see                                                                   
below). The bill does not address  billboards or other signs.                                                                   
                                                                                                                                
4:27:50 PM                                                                                                                    
                                                                                                                                
Representative   Holm  mentioned   the  fiscal  note,   which                                                                   
contains no increment.                                                                                                          
                                                                                                                                
4:28:24 PM                                                                                                                    
                                                                                                                                
JOHN    MACKINNON,    DEPUTY    DIRECTOR,    DEPARTMENT    OF                                                                   
TRANSPORTATION  AND   PUBLIC  FACILITIES,  stated   that  the                                                                   
Department  has not  refined  the fiscal  note.  There is  an                                                                   
annual  economic  rent.  An  application  fee  would  be  set                                                                   
through  regulation for  encroachment based  on appraisal  or                                                                   
$100   dollars  per   year,   which  ever   is  greater.   He                                                                   
acknowledged  that  there would  be  an incremental  cost  in                                                                   
handling permits.                                                                                                               
                                                                                                                                
4:30:05 PM                                                                                                                    
                                                                                                                                
Representative Holm  expressed concern with  the legislation.                                                                   
He observed  that the  landowner owns  the property,  yet the                                                                   
state  has the  right to  charge  them for  an easement.  Mr.                                                                   
MacKinnon   clarified  that   the  process   is  in   current                                                                   
regulation.                                                                                                                     
                                                                                                                                
Representative  Hawker commented  that  property is  acquired                                                                   
subject to  the easement.  The landowner  is entitled  to fee                                                                   
simple and subject to the easement rights.                                                                                      
                                                                                                                                
Mr. MacKinnon  noted that there  are two classes of  right or                                                                   
ways: where  the state  has an easement  and where  the state                                                                   
owns the property.  It is difficult to collect  payments when                                                                   
the state only has an easement.                                                                                                 
                                                                                                                                
4:32:11 PM                                                                                                                    
                                                                                                                                
Representative Kelly  asked if the legislation  would resolve                                                                   
any federal  requirements: maintenance concerns  & standards.                                                                   
He  commented on  Amendment  #1 and  questioned  if it  would                                                                   
cover  maintenance   needs.  Mr.  MacKinnon   responded  that                                                                   
encroachments  were not  close enough  to the  road to  cause                                                                   
trouble. There is no problem with mailboxes.                                                                                    
                                                                                                                                
4:33:31 PM                                                                                                                    
                                                                                                                                
Representative  Hawker   noted  that  the   legislation  only                                                                   
addresses existing  encroachments and does not  allow any new                                                                   
ones. The amendment specifically addresses qualifications.                                                                      
                                                                                                                                
4:34:37 PM                                                                                                                    
                                                                                                                                
Representative Hawker MOVED to  ADOPT Amendment #1 as amended                                                                   
(see applicant below):                                                                                                          
                                                                                                                                
     Page 1, line 12, following "remain"                                                                                        
     Insert ",  subject only to removals required  by federal                                                                   
     highway  funding requirements  imposed on  the state  by                                                                   
     federal law,"                                                                                                              
                                                                                                                                
     Page 1, line 15 through page 2, line 13                                                                                    
     Delete all material                                                                                                        
     Insert                                                                                                                     
     "(c)  Upon receipt  of  an application,  the  department                                                                   
     shall issue an encroachment  permit to a private person,                                                                   
     a government  agency acting  in a business  capacity, or                                                                   
     an owner or  lessee of land contiguous  to the right-of-                                                                   
     way for  an encroachment that  on the effective  date of                                                                   
     this  Act  is  present within  the  right-of-way  of  an                                                                   
     interstate,  primary, or  secondary highway  and is  not                                                                   
     authorized  by  a  written encroachment  permit  if  the                                                                   
     department finds that:                                                                                                     
     (1)  the  encroachment  does  not  pose a  risk  to  the                                                                   
     traveling  public and  the integrity  and safety  of the                                                                   
     highway is not compromised;                                                                                                
     (2)  the applicant  [application]  has demonstrated  the                                                                 
     encroachment was erected in good faith;                                                                                    
     3) the  denial of the  encroachment permit would  pose a                                                                   
     hardship  on the  person, agency,  owner, or lessee  who                                                                   
     applies for the permit;                                                                                                    
     (4)  the issuance  of an  encroachment  permit will  not                                                                   
     cause a break in access control for the highway;                                                                           
     (5)  the  land  will  not be  necessary  for  a  highway                                                                   
     construction  project  during the  initial  term of  the                                                                   
     permit; and                                                                                                                
     (6)  issuance of  a permit  is  consistent with  federal                                                                   
     requirements  regarding  encroachments  on  federal  aid                                                                   
     highways.                                                                                                                  
     (d)  The  department  may  not  remove  an  encroachment                                                                   
     present  within  the  right-of-way   of  an  interstate,                                                                   
     primary, or secondary highway  that is not authorized by                                                                   
     a written  encroachment permit on the effective  date of                                                                   
     this  Act  until  the  department  determines  that  the                                                                   
     encroachment  does  not   qualify  for  an  encroachment                                                                   
     permit  issued under  this section.  The department  may                                                                   
     charge  an application fee,  not to  exceed $100,  for a                                                                   
     permit  issued  under  this   section.  An  encroachment                                                                   
     permit issued under this  section may contain reasonable                                                                   
     conditions to  protect the traveling public,  the safety                                                                   
     and  integrity  of a  highway's  design  and the  public                                                                   
     interest.                                                                                                                  
     (e) The  land area described  in an encroachment  permit                                                                   
     may  not be  used  to meet  minimum  requirements for  a                                                                   
     contiguous land use under  applicable municipal land use                                                                   
     standards  or under  applicable  regulations adopted  by                                                                   
     the  Department of Environmental  Conservation.  The use                                                                   
     of land  contiguous to  the land  area described  in the                                                                   
     permit  must satisfy the  applicable municipal  land use                                                                   
     standards  and  applicable  regulations adopted  by  the                                                                   
     Department of Environmental  Conservation without regard                                                                   
     to the land area described in the permit.                                                                                  
     (f)  The issuance  of an  encroachment  permit under  AS                                                                   
     19.25.200  -  19.25.250  does  not  entitle  the  owner,                                                                   
     occupant, or  person in possession of  the encroachment,                                                                   
     or any other  person to a payment of  compensation or of                                                                   
     relocation benefits under  AS 34.60, if the encroachment                                                                   
     permit is revoked or not  renewed or if the encroachment                                                                   
     must  be   changed,  relocated,  or  removed   under  AS                                                                   
     19.25.200 - 19.25.250.                                                                                                     
                                                                                                                                
Representative   Holm   referred   to  provisions   for   the                                                                   
Department   of   Environmental    Conservation   to   create                                                                   
applicable regulations  for the  use of contiguous  lands. He                                                                   
questioned if contiguous  lands would be kept  under the same                                                                   
umbrella of use.                                                                                                                
                                                                                                                                
4:37:10 PM                                                                                                                    
                                                                                                                                
Representative Hawker  clarified that the intent  is that the                                                                   
issuance of a permit not create,  for any land owner, a thing                                                                   
of value  that they  do not  already exist  a thing  of value                                                                   
that they already  possess. There is no intention  to devalue                                                                   
any right that  the landowner possesses. The  contiguous land                                                                   
concept addresses these concerns.                                                                                               
                                                                                                                                
4:39:17 PM                                                                                                                    
                                                                                                                                
Representative  Holm expressed  concern  with  Section E  and                                                                   
questioned  what  type of  restraints  would  be put  on  the                                                                   
property.                                                                                                                       
                                                                                                                                
4:40:07 PM                                                                                                                    
                                                                                                                                
In    response    to    Representative    Holm's    concerns,                                                                   
Representative  Hawker  stated  that  he  would  entertain  a                                                                   
separate amendment to remove "applicable  regulations adopted                                                                   
by the Department of Environmental Conservation".                                                                               
                                                                                                                                
Representative Holm WITHDREW his OBJECTION to Amendment #1.                                                                     
                                                                                                                                
Representative  Kelly referred  to  liability. Mr.  MacKinnon                                                                   
noted  that  liability  is  covered as  part  of  the  permit                                                                   
holder's homeowners'  insurance. He  stated that he  was more                                                                   
concern with the public coming through and getting injured.                                                                     
                                                                                                                                
4:41:24 PM                                                                                                                    
                                                                                                                                
There being NO OBJECTION, Amendment #1 was adopted.                                                                             
                                                                                                                                
4:41:41 PM                                                                                                                    
                                                                                                                                
Representative Holm asked for  more information on Section E.                                                                   
                                                                                                                                
Mr. MacKinnon replied  that the intent was not to  run a foul                                                                   
of on site wastewater requirements.                                                                                             
                                                                                                                                
Representative  Hawker stressed that  they are attempting  to                                                                   
walk among existing rights, standards  and regulations, while                                                                   
addressing individual problems.                                                                                                 
                                                                                                                                
4:44:19 PM                                                                                                                    
                                                                                                                                
Mr. MacKinnon spoke in support of the legislation.                                                                              
                                                                                                                                
4:45:00 PM                                                                                                                    
                                                                                                                                
Representative Foster MOVED to  REPORT CS HB 279 (FIN) out of                                                                   
Committee  with  individual  recommendations   and  with  the                                                                   
accompanying fiscal  note. There  being NO OBJECTION,  it was                                                                   
so ordered.                                                                                                                     
                                                                                                                                
CSHB  279 (FIN)  was reported  out  of Committee  with a  "no                                                                   
recommendation" recommendation  and with zero  fiscal note #1                                                                   
by the Department of Transportation and Public Facilities.                                                                      
                                                                                                                                
4:46:13 PM                                                                                                                    
                                                                                                                                

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