Legislature(2003 - 2004)

05/05/2004 09:04 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ 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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