Legislature(2005 - 2006)CAPITOL 120
01/25/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB321 | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 318 | TELECONFERENCED | |
| += | SB 132 | TELECONFERENCED | |
| *+ | HB 314 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | HB 321 | ||
HB 318 - LIMITATION ON EMINENT DOMAIN 1:57:38 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 318, "An Act limiting the exercise of eminent domain." [Before the committee was the proposed committee substitute (CS) for HB 318, Version 24-LS1083\Y, Bullock, 1/11/06, which was adopted as a work draft on 1/11/06; also in committee packets was a proposed CS for HB 318, Version 24- LS1083\L, Bullock, 1/24/06.] 1:58:19 PM CRAIG JOHNSON, Staff to Representative Lesil McGuire, Alaska State Legislature, one of the prime sponsors of HB 318, relayed on behalf of Representative McGuire that the two main policies being addressed by HB 318 are whether taking a person's private property for economic development is justified and whether it is appropriate to take a person's personal property - a home - for recreational purposes. He then referred to the proposed CS, Version L, and explained that Section 1 of the bill now defines "economic development" and "public use". MR. JOHNSON also explained that Section 3 now defines "economic development" and "personal residence"; no longer has a provision authorizing the commissioners of the Department of Natural Resources (DNR), the Department of Transportation & Public Facilities (DOT&PF), the Department of Commerce, Community, & Economic Development (DCCED), and the Department of Military & Veterans' Affairs (DMVA) to approve the use of eminent domain in certain situations; now provides an exception for property transferred to a common carrier instead of an exception for property transferred to a person available for public hire to transport freight or passengers - this change was prompted by the fact that "common carrier" is already defined in statute; and now contains a paragraph (7) that provides an exception for property which is found by the governor to be necessary for a public use not specifically already authorized by other provisions of statute, though use of this exception must also be approved by the legislature. MR. JOHNSON remarked that this paragraph (7) somewhat replaces the provision regarding the commissioners and is intended to cover unforeseen circumstances in which the use of eminent domain would be necessary. He then indicated that the remainder of the changes in Version L are [technical changes]. 2:01:22 PM CHAIR McGUIRE noted that with regard to paragraph (7) of Section 3, because one legislature cannot bind another, any future legislature has the ability to repeal or amend this proposed provision should it so desire. Remarking that she is not completely [wedded] to the idea of retaining that exception, she, too, mentioned that it would allow the administration flexibility should any as yet unforeseen circumstance arise wherein it thinks that the use of eminent domain is necessary, and that an official request for approval must be made to the legislature regarding such use. 2:02:17 PM REPRESENTATIVE WILSON moved to adopt the proposed CS for HB 318, Version 24-LS1083\L, Bullock, 1/24/06, as the work draft. There being no objection, Version L was before the committee. MR. JOHNSON, in response to a question, relayed that paragraph (7) might be used, for example, in a situation involving a very popular proposal to create a bike trail in an organized borough but not all property owners are willing to turn over their property. He suggested that including this exception will give the administration a certain level of comfort. 2:04:29 PM REPRESENTATIVE GRUENBERG indicated that he was expecting to see a provision allowing local governments to institute a similar exception. MR. JOHNSON said he'd not been comfortable asking the drafters to include something of that nature into the bill because that would be a policy call for the legislature to make. REPRESENTATIVE GRUENBERG indicated that he would like to address that issue further. CHAIR McGUIRE said she has concerns with granting local governments the ability to say that state law doesn't apply; if the law, and the legislature's intent, is that private property cannot be taken from one individual and given to another for economic development purposes or that a private residence cannot be taken away for recreational purposes, then there probably shouldn't be a huge loophole for local governments to take advantage of, notwithstanding her stance as a proponent of local control. She characterized this as a policy call for the legislature to make. REPRESENTATIVE GRUENBERG, remarking that he'd like more time and input from concerned parties in order to draft a possible amendment on this issue, said that the question for him is, "Who decides?" Should the legislature decide the issue for local governments, or should municipalities decide the issue? Does the legislature want to start down the path of deciding zoning issues? He mentioned that he would not want the federal government or the state legislature deciding issues involving his own neighborhood or his house. 2:09:06 PM REPRESENTATIVE GARA opined that the bill should prevent one private individual from convincing the government to use the power of eminent domain to take private property from another private individual. He suggested that using eminent domain to take private property for economic development purposes should only be allowed when absolutely necessary for a particular project, and any provisions allowing exceptions to the prohibition against using eminent domain should be limited to just those circumstances. MR. JOHNSON noted that according to conversations he's had with the Department of Law (DOL), a demonstration of necessity is already required in order to take property via eminent domain. REPRESENTATIVE COGHILL indicated that he would like to make sure that the state's process of exercising eminent domain doesn't conflict with how municipalities exercise it. The legislature has already made a policy statement that local governments have the right to exercise eminent domain, he remarked, and there is a legitimate state interest in this issue. 2:12:41 PM CHAIR McGUIRE ventured her belief that the Alaska Municipal League's (AML's) position is that it would prefer to leave decisions regarding eminent domain to local governments. One policy question to resolve is whether it is appropriate for the legislature to take a stance on the issue of when and for what purposes eminent domain shall be exercised in the state, whether by state government or municipal government, to take private property from one private entity and transfer it to another private entity for economic development purposes; this was the issue raised as a result of the decision in the U.S. Supreme Court case, Kelo v. City of New London. If the answer to that policy question is yes, then they must be careful to not create loopholes in the bill. CHAIR McGUIRE noted that AS 09.55.240 already spells out the existing authorized uses for eminent domain, and that the bill is not trying to take away a municipality's right to exercise eminent domain over its public lands or over federal public lands; instead, the issue is whether private land can be taken from one private entity and given to another private entity for economic development purposes as was done in the Kelo situation. She indicated that she disagrees with the policy [espoused] by the court in Kelo and would like to make a bold statement to that effect. REPRESENTATIVE COGHILL said he is merely concerned about the impact of the proposed exceptions, and offered his belief that in both AS 09.55.240 and AS 09.55.260, the legislature has clearly said that the right of eminent domain exists under the circumstances listed therein. 2:17:20 PM REPRESENTATIVE GRUENBERG said he doesn't want either the federal government or local governments making a decision regarding what the state does with its land. With regard to local governments, if the voters in a municipality don't like its decisions regarding the use of eminent domain, they can seek remedy at the local level. He remarked, "I think the municipalities should decide municipal seizures, Feds should decide federal seizures, and we should decide state seizures"; it's not just who decides, but who decides for what kind of seizure. Referring to page 4, lines 11-14, he noted that this language is giving the governor some authority on this issue, and so it could be that a governor could to do something or refuse to do something in conflict with the legislature's wishes. Does the legislature want to tie up its authority with the governor's in such instances, he pondered. CHAIR McGUIRE referred to paragraph (7) of Section 3 and remarked that the more she thinks about it the more she considers that provision to be unnecessary and distracting, particularly given that at any point in time the legislature can enact legislation that would completely overturn this proposed legislation. She indicated that she is considering making an amendment to remove [paragraph (7)]. REPRESENTATIVE GARA said he aggress with Chair McGuire's comments, and suggested that subsection (e) of Section 3 will engender debate; that language reads: The power of eminent domain may not be exercised for the purpose of developing a recreational facility or project if the property to be acquired includes an individual landowner's primary personal residence or that portion of an individual's property attached to and within 1,000 linear feet of an individual landowner's personal residence. REPRESENTATIVE GARA said he would like for government to have the ability to assist [individuals and groups] in gaining public access to fishing and boating streams, hunting trails, and perhaps even trails. MR. JOHNSON clarified that the term "1,000 linear feet" was put in as "a holding point," but added that he is not sure that 1,000 feet is the correct number; he suggested that perhaps it should instead be "100 linear feet", "250 linear feet", or "300 linear feet". It ought to be possible, he remarked, to gain access for the aforementioned recreational purposes without taking someone's home; with only 1 percent of Alaska's lands being in private hands, taking someone's home is an egregious step. Lowering the amount of land listed on page 4, line 18, could be a good first step towards alleviating the concerns of those opposed to that provision, while still allowing Alaskans access to things like fishing and boating streams, hunting [areas], and trails. 2:27:19 PM REPRESENTATIVE GARA pointed out, though, that in addition to having access to a fishing stream, one still needs to be able to walk along the bank of a fishing stream. MR. JOHNSON offered his understanding that the state already owns "those lands," and so the public would have access to them. In response to a comment, he explained that a recreational cabin would not be considered a "residence" for purposes of the bill. CHAIR McGUIRE clarified that she is setting slightly different thresholds for the two main aspects of the bill. In the case of economic development, the bill seeks to preclude the transfer of private land from one private entity to another private entity; in the case of recreational use, the bill seeks to preclude the transfer of private land if that private land is land upon which one has a residence as defined in the bill. She said she doesn't feel that it's appropriate to simply say that economic development is an inappropriate purpose for which to take away private property while also saying that recreational use is an [appropriate] purpose. 2:30:10 PM RUTH BLACKWELL, Alaska Association of Realtors (AAR), relayed that since the Kelo decision, both the AAR and the National Association of Realtors (NAR) have been working to ensure that private property rights are upheld, and have come up with three general policy decisions: use of eminent domain only when necessary to materially advance real or substantial public use - for example, roads, airports, power lines, public buildings; government should provide persuasive, objective evidence that the project and the resulting use will in fact be reached; and just compensation should include not only the value of the condemned property but also the other reasonable and necessary costs engendered by the condemnation. MS. BLACKWELL said that the AAR is in favor of the portion of the bill pertaining to the transfer of property [for economic development purposes] and is happy with the definitions of "economic development" and "public use". However, the AAR is concerned about the provision that precludes the transfer of land for recreational use purposes only when that land contains a primary personal residence. The AAR would hate to see those that have put their heart and soul into the building of a cabin or campsite lose their land through the use of eminent domain just to provide public access to others. She suggested that [the language in subsection (e) be changed] so that it doesn't pertain to just residences. REPRESENTATIVE GARA remarked that the question becomes one of whether, 20 years from now, as the population increases, the public will be able to access fishing streams. REPRESENTATIVE COGHILL expressed a preference for leaving property owners alone while still attempting to ensure that the public has access to [fishing streams, hunting areas, and trails]. REPRESENTATIVE GRUENBERG remarked that the issue of ensuring public access is quite different in rural areas than it is in urban areas, and again suggested that each local area should be allowed decide this issue for itself. 2:42:22 PM PETER PUTZIER, Senior Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law (DOL), offered his belief that subsection (d)(7) will not work as currently drafted, and opined that the bill should contain language authorizing the transfer of private property from one private entity to another under certain circumstances. He then offered examples of situations in which the state might wish to allow the transfer of private property from one private entity to another for economic development purposes. REPRESENTATIVE GARA said of those examples that they involve exactly the types of situations for which he wouldn't want to allow the use of eminent domain and are the very reason for introducing the bill. REPRESENTATIVE GRUENBERG asked Mr. Putzier to provide written suggestions for change to the committee. MR. PUTZIER agreed to do so. REPRESENTATIVE GRUENBERG referred to page 3, line 24, and suggested that perhaps the term, "private person or entity" should be changed to "private person or private entity". However, doing so would imply that "private person" and "private entity" are different terms. He noted that "private entity" is not yet defined in the bill, and questioned whether it ought to be if it is not the same as "private person". MR. PUTZIER acknowledged that that is another issue the DOL would like to see addressed. 2:49:40 PM KEVIN C. RITCHIE, Executive Director, Alaska Municipal League (AML), said the AML would support the state taking a stand on this issue as long as that stand works for communities as well as it works for the state, and appreciates the narrowing of the bill so that it addresses only the issues raised by the Kelo decision with regard to economic development. Jobs are really important in Alaska, and probably not enough economic development is being done. With regard to subsection (d)(7), he offered his understanding that although it might provide a municipality the ability to transfer land for a project that the majority of the residents support, the process would be cumbersome. MR. RITCHIE recommended that the statute be altered so that it is no longer silent on the issue of delegating eminent domain authority to a private nonprofit corporation, specifically that the authority remain with the local government; for example, add a simple statement that eminent domain [authority] may not be transferred or delegated. Furthermore, the statute could be changed to specify that if the legislature passes a law to override the aforementioned proposed statement, then a local government would also have to pass a similar law. Historically, he relayed, municipalities have been very protective of property rights. In conclusion, he offered to help committee staff draft these suggested changes. REPRESENTATIVE GRUENBERG asked Mr. Ritchie for written suggestions and comments. MR. RITCHIE agreed to provide them. REPRESENTATIVE GRUENBERG noted that Article II, Section 19, of the Alaska State Constitution prohibits the legislature from passing local or special acts if a general act can be made applicable, and that Article X of the Alaska State Constitution provides for maximum local self-government. He pondered whether [adding certain provisions to statute] might run afoul of Article X. He asked Mr. Ritchie to research these issues further. REPRESENTATIVE GARA asked for examples of municipalities using eminent domain. MR. RITCHIE said that the AML did query a number of communities with regard to whether they've had problems with eminent domain, but has not received any indication that there have been any problems. He agreed to research that issue further. 2:57:00 PM CHIP WAGONER, President, Southeast Alaska Board of Realtors, relayed that he is also speaking at the request of the chairman of the Alaska Board of Realtors' Legislative Committee. He said he supports Ms. Blackwell's comments and appreciates the introduction of the bill. The question, he posited, is whether [the legislature] wishes to address more than just the issues raised by the Kelo decision, particularly given that there are some sections of the eminent domain statutes that have not been altered since the '60s. He noted that he also owns a remote piece of property in Southeast Alaska - an island - and that he would hate to see the government take a portion of that. People who own remote properties, particularly when they have a cabin on them, feel more emotional about those properties than they do about their own personal residences, he opined. MR. WAGONER suggested that another way of approaching the issue would be to consider instituting higher standards when the government wants to use eminent domain for different purposes. He offered his understanding, for example, that AS 09.55.270 speaks to the standards that the government must use when it wants to go after property. However, one of the problems is that the standard of "necessity" is currently undefined, and so the courts define it [on a case-by-case basis]. He surmised that as time goes on, the courts will tend to be more and more liberal in defining this term such that instead of being defined as "absolute necessity" for the public use, it will be defined as "requisite necessity". MR. WAGONER indicated that AS 09.55.270 could be altered such that if the government is going to go after certain kinds of property for less of a public use than say a school or a needed sewer line or something of that nature, the government would have to have a higher standard. He said that realtors are very concerned about private property because there is so little of it in Alaska. He concluded by saying: The government, when we were a territory in the '50s, actually took, by court action, a lot of the private properties in Southeast Alaska, because back in the ['10s], '20s, and '30s, a lot of ... private property ... [was] abandoned. ... And the government, by court action, took those properties, including the island I now own. ... REPRESENTATIVE GRUENBERG asked for suggested changes in writing. CHAIR McGUIRE concurred that it would be helpful to have suggestions for change in writing. She indicated that HB 318 [Version L] would be held over.
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