05/01/1995 01:25 PM House JUD

 HB 176 - ADJUSTMENTS FOR DEFECTIVE SURVEY                                   
                                                                               
 REPRESENTATIVE BUNDE, bill sponsor, introduced CSHB 176(CRA).  He             
 announced that Tom Knox from the Municipality of Anchorage was                
 available to answer questions via teleconference.  This bill allows           
 adjustments to a subdivision when the survey has been determined              
 manifestly defective, where the inside lines of some or all of the            
 individual lots are incorrect.  When this occurs no one in the                
 subdivision is afforded a clear title which is necessary in title             
 transfer or mortgage insurance financing.  It is true that the                
 property owners can bring title action against lots next to                   
 his/hers, it is not a practical solution when multi owner or multi            
 lot owners fall under a single title action, when the outside                 
 markers are so far off.  HB 176 will allow a party to join all                
 property owners of record after they petition to the court, after             
 a resolution by a  local government, and the creation of a special            
 assessment district.  One can request a resurvey and a replat of a            
 manifestly defective subdivision, lines and changes in adjacent               
 lots, through a superior court action.  The Municipality of                   
 Anchorage has requested this legislation to help correct two                  
 manifestly defective subdivision surveys, containing 347 lots in              
 the Anchorage area.  State block corners are not in the same                  
 position as shown on the plats, and in many cases, lot lines are 20           
 to 30 feet off of their known position on the plat.  The person               
 responsible for these surveys has left the state and is no longer             
 available, therefore recourse to the surveyor does not exist.  The            
 Municipality has exhausted all other aspects of law to correct this           
 problem and finds that this legislation is the only practical                 
 solution to offer relief to property owners in correcting this                
 defect.  While the immediate reason for this legislation occurs in            
 Anchorage, the changes would be available statewide for other                 
 manifestly defective surveys.                                                 
 REPRESENTATIVE BUNDE noted boundary disputes cannot be resolved               
 under existing common law principles.  This legislation is crafted            
 to allow for a vote of all the affected land owners to determine if           
 a resurvey of the entire subdivision should occur.  A majority must           
 concur to form a special assessment district.  The municipality               
 must also pass a resolution supporting this action in the formation           
 of an assessment district, then a plaintiff must file an action in            
 the court of the statement of facts surrounding the survey in the             
 area of question.  After the resurvey, the court may then modify,             
 accept, or direct surveyors to modify those plats.  The court                 
 assesses the special assessment district for the cost of replat,              
 once the court has acted to replat.  The subcommittee of the Alaska           
 Society of Professional Land Surveyors concluded that when a                  
 subdivision survey is manifestly defective, it cannot be resolved             
 on a piecemeal basis.  Unless all of the landowners participate, it           
 may never be resolved.  This subcommittee worked with his office,             
 the Municipality of Anchorage, the Department of Natural Resources,           
 and other entities to try to create a bill that  would solve this             
 problem.                                                                      
                                                                               
 Number 650                                                                    
                                                                               
 TOM KNOX, Municipal Surveyor, Municipality of Anchorage, testified            
 via teleconference from Anchorage.  He has been working with the              
 immediate survey problems for approximately nine years.  That is              
 where this bill has come from.  It has come from the people, not              
 from the municipality.  All we did was assist them.  This bill will           
 give property owners a mechanism to resolve the problems within               
 their subdivision.  You cannot just go and correct a problem inside           
 the subdivision.  Every change affects the whole subdivision, and             
 everyone is affected.  One of the primary reasons this bill is                
 necessary is because we could have all aspects and all problems               
 solved at one time.  The Municipality of Anchorage supports the               
 bill.                                                                         
                                                                               
 REPRESENTATIVE VEZEY asked Mr. Knox if he had seen the Community              
 and Regional Affairs Committee substitute (CS) which was before the           
 Judiciary Committee.                                                          
                                                                               
 MR. KNOX did not, however, he had seen the comments written by                
 George Shroeder from the Mat-Su Valley, concerning this bill.  He             
 had several concerns because their properties are totally different           
 than ours.  We are more densely populated, and so he did not know             
 how this bill would affect them.  He did not know what changes were           
 made in the CS.                                                               
                                                                               
 Number 700                                                                    
                                                                               
 JOHN BENNETT, President, Alaska Society of Professional Land                  
 Surveyors (ASPLS), testified via teleconference, in support of this           
 solution to the problem.  He said however, their support is quite             
 weak.  As they testified previously before the Community and                  
 Regional Affairs Committee hearing.  They were wondering whether a            
 legislative solution was even necessary.  Several members feel that           
 this bill could curtail the rights of individuals, and maybe there            
 is no provision for it anywhere else, and they may not need this              
 solution.  As far as his job as president, he found that their                
 voting membership was basically split six to six as to whether they           
 would support or oppose this bill.                                            
                                                                               
 Number 740                                                                    
                                                                               
 WILLIAM MENDENHALL, testified via teleconference.  He is a                    
 registered land surveyor in Fairbanks.  He is also a member of the            
 Board of Architects, Engineers and Land Surveyors.  He was not                
 speaking for them, but only for himself.  He urged passage of the             
 CS.                                                                           
                                                                               
 REPRESENTATIVE VEZEY asked if he knew of any other states that had            
 statutes regarding this issue.  They have been unable to locate               
 any, but are sure we have not been the only state to have these               
 types of problems.                                                            
                                                                               
 MR. MENDENHALL answered that he could not comment on that.  He was            
 not aware of what other states do.  He does know that in the public           
 land system, if some things seems to be grossly defective the                 
 contractors can come in and resurvey.  This was the case in the               
 late 1800s.  A lot of our work in the western states was done by              
 contract, some of which was outright fraudulent, and so there had             
 to be some solution by doing a resurvey that effectively wiped out            
 all of the earlier work.                                                      
                                                                               
 REPRESENTATIVE VEZEY asked if he was referring to corrections in              
 the rectangular survey system.                                                
                                                                               
 MR. MENDENHALL answered that yes, he was.  He was not aware of any            
 gross errors in Alaska, but he was referring to some in Kansas.  He           
 knew of some portions of land where boundaries were 50, 60, 70, or            
 80 feet different from one another.  He considers that a grossly              
 defective error.  He felt that those types of instances were what             
 this legislation was intended to resolve.                                     
                                                                               
 Number 790                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if Mr. Mendenhall if 50 feet was the               
 definition of gross error.                                                    
                                                                               
 MR. MENDENHALL said one principle that is used, is that whatever              
 exists on the ground, once it is monumented, and once that plat is            
 approved, that becomes the official position even if it is somewhat           
 out of the normal specifications.  So once the monument is platted,           
 and the plat is approved, that is what it is.                                 
                                                                               
 REPRESENTATIVE FINKELSTEIN asked what would be the effect of the              
 bill without the change in the Civil Rules Procedure.                         
                                                                               
 ANNE CARPENETI, Committee Aide, House Judiciary Committee, answered           
 that the reason this was noted in the bill is because it extends              
 the time for service of the answer by the people who have the right           
 to answer.  It also provides for a different type of notice service           
 process, than the rules generally provide.                                    
                                                                               
 TAPE 95-56, SIDE A                                                            
 Number 000                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN did not understand why it is critical to           
 change the Civil Rules.  What would happen if we just left that               
 out?                                                                          
                                                                               
 MS. CARPENETI said that by providing for a longer period for                  
 service of the answer, you are doing something outside the Civil              
 Rules.  It would be possible to amend this Section 3 by saying, "A            
 (indisc.) has the effect of amending the Civil Rules by allowing a            
 longer period of time."  It might be clearer that way.                        
                                                                               
 REPRESENTATIVE FINKELSTEIN was not certain that would be necessary.           
                                                                               
 REPRESENTATIVE TOOHEY made a motion to move CSHB 176(CRA) out of              
 committee with individual recommendations and zero fiscal notes as            
 attached.  Hearing no objection, it was so ordered.