Legislature(2003 - 2004)
05/05/2004 09:04 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 395(TRA) "An Act relating to application of municipal ordinances providing for planning, platting, and land use regulation to interests in land owned by the Alaska Railroad Corporation; authorizing the Alaska Railroad Corporation to extend its rail line to Fort Greely, Alaska; authorizing the Alaska Railroad Corporation to issue bonds to finance the cost of the extension and necessary facilities and equipment; and providing for an effective date." This was the second hearing for this bill in the Senate Finance Committee. Co-Chair Wilken stated this bill, "has two issues: Section 1 had to do with the Railroad and planning and zoning, and Section 2 is the $500 million extension to Greely." Co-Chair Green moved for adoption of CS SB 395, 23-LS1965\Q, as a working document. ZACK WARWICK, Staff to Senator Gene Therriault, explained that the committee substitute incorporates the amendments made during this bill's last hearing in the Senate Finance Committee. In addition, a repeal date of July 1, 2005 was inserted in page 4, line 19, and Section 7, of this committee substitute. After discussion with local municipalities and boroughs, a task force was also added with the purpose of forming a plan, which would be presented to the legislature during the next legislative session. The task force is detailed on page 3, line 10, Section 5. Co-Chair Wilken asked if the language of the committee substitute was acceptable to the Alaska Railroad Corporation. PAT GAMBLE, President and Chief Executive Officer, Alaska Railroad Corporation, Department of Community and Economic Development, affirmed. Co-Chair Wilkin inquired if funding for the task force would come from each of the participating bodies. Mr. Gamble responded that the participating bodies would pay for the expense of travel to and from the task force, but any administrative funding would be compensated by the Railroad. Co-Chair Green requested clarification of the language of Section 5(c) on page 4, lines 9 - 11, establishing the Railroad Planning, Platting, and Land Use Regulation Task Force which reads as follows. (c) The members of the task force appointed under (a)(3) and (4) of this section are not eligible for compensation but are entitled to per diem and travel expenses authorized for boards and commissions under AS 39.20.180. Co-Chair Wilken explained that all task force members would receive per diem and travel expenses, but suggested that only legislators would receive compensation. He asked the witness to confirm his interpretation. Mr. Warwick corrected that the members under subsection (3) and (4): one member of the Alaska Railroad Corporation and the members who are municipal officials, would not be entitled to compensation, but would be entitled to per diem expenses. Co-Chair Wilken clarified that those members of the task force listed on page 3, line 19 through page 4, line 4, would be entitled to travel and per diem paid for by the State. Mr. Warwick affirmed. Co-Chair Wilken stated that a conceptual amendment is needed to change subsection (c). Senator Bunde pointed out that an amendment would require an additional fiscal note. Co-Chair Wilken asked the Committee members if they "envision" the State's compensation of the travel and per diem expenses in question. Co-Chair Green answered, no. Co-Chair Green and Co-Chair Wilken discussed the technical details of the amendment. Senator Bunde stated his intent that the task force members listed on page 3, lines 23 through page 4, line 4 would not be entitled to per diem compensation. Amendment #2: This amendment provides that the non-legislative members of the task force are not entitled to compensation or per diem and travel expenses. Co-Chair Wilken moved for adoption. The amendment was ADOPTED without objection. Amendment #3: This amendment inserts "to the extent permitted under 49 U.S.C. and 701, the Interstate Commerce Commission Act (ICCTA)" in Section 1(b), amending AS 42.40.390 on page 1, line 11, of the committee substitute. The amended language reads as follows. (b) Municipal ordinances providing for planning, platting, and land use regulation adopted under AS 29.35.180 or other law do not apply to the land of the corporation, to the extent permitted under 49 U.S.C. and 701, the Interstate Commerce Commission Termination Act (ICCTA) unless the land is leased to another person by the corporation and the corporation has not retained a right to use the land during the term of the lease. Co-Chair Wilken moved for adoption and stated the intention of this amendment. [This amendment] would clarify that the Railroad exemption of municipal land use or ordinance applies only to the powers granted by the federal government." Co-Chair Wilken objected for discussion. Mr. Gamble explained that a similar proposal had been discussed in a House of Representatives Committee hearing. The Alaska Railroad Corporation's legal staff reviewed the proposal and attempted to draft language that "mirrored" the federal law. The issue of the Railroad's land use has required specifically defining the core operations of a railroad. A railroad's operations could be divided into two categories: the movement and support of trains, and land- use issues. This amendment would work towards bringing the consensus required to find a solution satisfactory to both the Alaska Railroad Corporation and the municipalities. He supported the concept of the amendment. Mr. Gamble added that he had a submission issued by the Alaska Railroad Legal Department dated May 5, 2004 [copy on file], that "amplified" the language in Amendment #3 and defined the core operational issues of the Railroad. Co-Chair Wilken asked if the document is a clarification of Amendment #3. Mr. Gamble affirmed, and added that the document very closely replicates the federal law. There was no objection and the amendment was ADOPTED. SFC 04 # 107, Side B 09:52 AM AT EASE 9:52 AM / 9:52 AM Co-Chair Wilken asked for clarification of the document issued by the Alaska Railroad Legal Department. Mr. Gamble responded that Amendment #3, while adding the federal land use language, did not address all of the municipalities' concerns. The document encompasses the amendment, but would also speak to certain local concerns not addressed in the amendment. Co-Chair Wilken asserted that he does not want the Railroad's document to be attached to this bill. He offered that another member of the Committee could recommend consideration of the document and its adoption into this legislation. Co-Chair Green qualified that this document addressed certain short-term concerns she had heard vocalized by the municipalities. She spoke to Mr. Gamble's statements regarding rail operations versus land use operations. Co-Chair Wilken asked the witness to explain paragraph (a) of the Railroad document. Senator Hoffman asserted that paragraph (a) consists of existing State law. Co-Chair Wilken asked the witness to explain paragraph (b) of the Railroad document. Mr. Gamble responded that the first portion of paragraph (b) references a number of laws applying to the federal exemption from planning and zoning that apply to railroads. The federal exemption language pertains to core railroad operations, and the language in this section of the paragraph has been directly transferred from the federal exemption. The second underlined portion of the paragraph is a clarification that expounds on the federal exemption by providing a more detailed description of the Railroad's operations. This portion was included to address the concerns of the municipalities. Co-Chair Wilken asked the witness to explain paragraph (c). Mr. Gamble answered that paragraph (c) is a recommendation from the Fairbanks North Star Borough that provides for greater public participation in the Railroad's land use decisions. Co-Chair Wilken inquired if paragraph (b) and (c) would offer protection to the Railroad from actions taken by other parties. Mr. Gamble responded that the document offers the Railroad "the best protection we have." The language would provide the Railroad the same protection that it has received for the last eighteen years. Co-Chair Wilken suggested the Committee provide the task force the opportunity to revisit the issue. Amendment #4: This amendment inserts new language into Section 1, establishing, Sec. 42.40.390. Land use rules, on page 1 of the committee substitute. The new language reads as follows. (c) By January 10 of each year, the corporation shall provide notice to municipalities of any new land use proposed for that year by the corporation within municipal boundaries. The corporation shall provide amended notice if a proposed land use is changed or an additional land use is proposed during the course of the year. Except in the event of an emergency, an affected municipality shall have at least 30 days after its receipt of the notice to provide advisory comment to the corporation. In the event of an emergency, the corporation will provide notice to an affected municipality promptly after the event. Co-Chair Wilken moved for adoption. The amendment was ADOPTED without objection. Amendment #5: This amendment changes Section 1(b) and adds a new subsection to Section 1, establishing, Sec. 42.40.390. Land use rules, on page 1 of the committee substitute. The amended and new language reads as follows. (c) Pursuant to 49 U.S.C. 10501(b), municipal ordinances providing for planning, platting, and land use regulation adopted under AS 29.35.180 or other law do not apply to the practices, routes, services and rail facilities of the corporation and the construction, acquisition, operation, abandonment or discontinuance of spur, industrial, team, switching, or side tracks or other rail facilities on land of the corporation unless the land is leased to another person by the corporation and the corporation has not retained a right to use the land during the term of the lease. For the purposes of this section, the term "rail facilities" includes tracks, rail yards, repair shops and maintenance buildings, freight and passenger terminals, rail car loading and unloading structures, operation centers, supply warehouses, communication structures and other facilities directly related to railroad operations. Notwithstanding the foregoing, the term "rail facilities" does not include rock quarries or gravel pits. (d) By January 10 of each year, the corporation shall provide notice to municipalities of any new land use proposed for that year by the corporation within municipal boundaries. The corporation shall provide amended notice if a proposed land use is changed or an additional land use is proposed during the course of the year. Except in the event of an emergency, an affected municipality shall have at least 30 days after its receipt of the notice to provide advisory comment to the corporation. In the event of an emergency, the corporation will provide notice to an affected municipality promptly after the event. This amendment is to be incorporated with the changes made by Amendment #3 rather than supersede the changes. Co-Chair Green moved for adoption. Co-Chair Wilken objected for discussion. Senator Hoffman, Co-Chair Wilken and Co-Chair Green clarified that the changes made by Amendment #5 would not supersede the changes made by Amendment #3. Co-Chair Wilken asked if the language in Amendment #3 should be added to Amendment #5 if it is adopted. Co-Chair Green recommended that the language in Amendment #5 be added to the language in Section 1 of this bill as amended. She restated her support of Amendment #5. Co-Chair Wilken removed his objection and the amendment was ADOPTED. The adoption of Amendment #5 superseded the action taken with the adoption of Amendment #4. Amendment language was attached to and distributed with committee substitute Version "Q". The amendment was drafted by the Division of Legal and Research Services and assigned the work order number, 23-LS1965\H.1 and lists Senator Therriault as the sponsor. The amendment would change the title of the committee substitute to insert "and to notices of proposed land uses by the corporation". The amendment would also insert new language in Section 1 on page 1, following line 12, to read as follows. (c) By January 10 of each year, the corporation shall provide a notice to each municipality of all new land uses the corporation proposes to begin that year within the municipal boundaries. The corporation shall provide a supplemental notice during the year if a previously proposed land use is changed or an additional land use is proposed to begin. After receipt of a notice or supplemental notice, the municipality shall have at least 30 days to provide advisory comments to the corporation before the corporation begins operations under a new land use that is necessary to address an emergency situation without providing prior notice to the municipality. The corporation shall provide notice of that emergency land use to the municipality promptly after beginning operations. The intent of the Committee was to adopt the committee substitute only. A member of the Committee did not sponsor this amendment. Co-Chair Wilken asked for an explanation of this amendment. Mr. Warwick clarified that the language in the attached amendment was included in Amendment #5. The amendment was NOT OFFERED. Co-Chair Green referenced "Resolution Serial No. 04-072", a resolution adopted by the Matanuska-Susitna Borough Assembly [copy on file]. The Borough is in support of the removal of the language of Section 1. The Borough might be satisfied by the adopted amendments because they address the community's primary concerns with this legislation. JOHN DUFFY, Matanuska-Susitna Borough, testified via teleconference from an offnet location that the Borough prefers that the blanket exemption be removed, but does agree that the inclusion of ICCTA in Amendment #3 would provide the Borough "adequate" protection. The Borough supports the creation of the task force. He expressed his appreciation to the Committee for the time spent on this legislation. Co-Chair Green mentioned that she would provide Mr. Duffy with the amendments adopted during this hearing. Mr. Gamble questioned which Matanuska-Susitna Borough resolution was being discussed. He clarified that to his knowledge the Borough had passed two resolutions, one being an anti-noise and vibration resolution that the Railroad would not be exempted from. He expressed that the Railroad should be exempted from that resolution, and emphasized his concern over the lack of cooperation the Borough exhibited. Mr. Duffy clarified that the resolution referenced by Mr. Gamble was actually an introduction; the ordinance had not passed, and would be heard again at a later date. Mr. Gamble responded that the Railroad would discuss the anti-noise and vibration resolution with the Borough at a later date. Co-Chair Wilken clarified that the resolution being considered by the Committee was Resolution Serial No. 04-072. Co-Chair Wilken requested a map indicating the location of the rail lines proposed by this legislation. Mr. Gamble indicated he would supply such a map. Co-Chair Green offered a motion to report CS SB 395, 23-LS1965\Q, as amended, from Committee with individual recommendations and a new fiscal note. Senator Bunde objected to comment. Senator Bunde removed his objection. Without objection CS SB 395 (FIN) MOVED from Committee with a new zero fiscal note from the Department of Community and Economic Development dated 5/4/04.
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