Legislature(2005 - 2006)

05/07/2005 05:45 PM FIN


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* first hearing in first committee of referral
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     CS FOR HOUSE BILL NO. 279(FIN)                                                                                             
     "An  Act relating  to encroachments  in the  right-of-way  of a                                                            
     highway."                                                                                                                  
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
BEN  MULLIGAN, Staff  to  Representative  Bill Stoltze,  the  bill's                                                            
sponsor,  stated that  the intent  of this  bill would  be to  allow                                                            
certain  encroachments to  remain on State  highways' right-of-ways                                                             
provided  that  the  encroachment   did  not  impede  State  highway                                                            
projects.  These encroachments  might include  such things  as water                                                            
systems or portions  of a garage that were unknowingly  built on the                                                            
right-of-way prior to the  point at which the State's highway right-                                                            
of-way progressed and made the encroachment known.                                                                              
                                                                                                                                
Mr.  Mulligan   continued  that  certain   encroachments   could  be                                                            
grandfathered  in  by this  bill,  provided  that six  criteria,  as                                                            
specified  in  Sec.  2(c)(1)  through (6),  page  two,  lines  eight                                                            
through nineteen, were met. This criterion is as follows.                                                                       
                                                                                                                                
     (1)  The encroachment  does not  pose a risk  to the  traveling                                                            
     public,  and the  integrity and  safety of  the highway  is not                                                            
     compromised;                                                                                                               
     (2)  the  applicant  has  demonstrated   the  encroachment  was                                                            
     erected in good faith.                                                                                                     
     (3)  the  denial  of  the  encroachment  permit  would  pose  a                                                            
     hardship  on the person, agency,  owner, or lessee who  applies                                                            
     for the permit;                                                                                                            
     (4)  the issuance of  an encroachment  permit will not  cause a                                                            
     break in access control for the highway;                                                                                   
     (5) the land  will not be necessary for a highway  construction                                                            
     project during the initial term of the permit; and                                                                         
     (6)   issuance  of   a  permit  is   consistent  with   federal                                                            
     requirements  regarding encroachments on federal-aid  highways.                                                            
                                                                                                                                
Mr.  Mulligan  provided  examples  of  situations  relating  to  the                                                            
criteria: the  term "good faith" would  apply to situations  such as                                                            
an  encroachment  that  was not  intentionally  constructed  on  the                                                            
right-of-way or  that a hardship would be imposed  were no alternate                                                            
reasonable water  source available to replace a well  located on the                                                            
right of way.                                                                                                                   
                                                                                                                                
Mr.  Mulligan  shared that  the  Department  of  Transportation  and                                                            
Public Facilities discussed  the conditions of this legislation with                                                            
the  federal government,  and  that the  understanding  is that  the                                                            
proposed criteria would  be acceptable. Continuing discussions would                                                            
occur.                                                                                                                          
                                                                                                                                
Mr. Mulligan  noted,  however, that  language would  be included  in                                                            
that bill that would allow  the federal government to have the final                                                            
say on  whether or  not an encroachment  exemption  permit would  be                                                            
granted. Nonetheless, this  legislation would provide an opportunity                                                            
for people to petition for an exemption under these guidelines.                                                                 
                                                                                                                                
Co-Chair Green asked the location of that federal preference.                                                                   
                                                                                                                                
Mr.  Mulligan  read the  pertinent  language  which is  included  in                                                            
Section 1(d)(2) on page one, lines 11 through 13 as follows.                                                                    
                                                                                                                                
     (2) present  in the right-of-way on the effective  date of this                                                            
     Act may  remain, subject only  to removals required  by federal                                                            
     highway  funding requirements  imposed on the state  by federal                                                            
     law, …                                                                                                                     
                                                                                                                                
Co-Chair  Green asked  whether the  encroachment  must have  existed                                                            
prior  to  a  certain  time,  as otherwise,   the  Department  might                                                            
encourage someone  to build an encroachment  and be issued  a permit                                                            
in order to prevent  some highway project from occurring  due to the                                                            
costs incurred by having to condemn and purchase that property.                                                                 
                                                                                                                                
Mr.  Mulligan  cited  an  example  of  a  building  that  was  first                                                            
constructed as a territorial  school built by the federal government                                                            
on the right of way of  what was, at the time, only a small two-lane                                                            
road. The right-of-way  at that time was small. Over  time, the road                                                            
was expanded  and the right-of-way  had increased.  The building  is                                                            
now a community  building  with a playground  in which meetings  are                                                            
held and  a school  is operating.  Were an  encroachment permit  not                                                            
provided in this  case, a portion of the playground  and the parking                                                            
structure would  be lost. Another  example is that of a 50-year  old                                                            
fire department  that could  loss a substantial  part of its  access                                                            
area.                                                                                                                           
                                                                                                                                
6:33:26 PM                                                                                                                    
                                                                                                                                
Co-Chair Green  understood that while the bill would  allow for such                                                            
situations,  the bill contains a mechanism  through which  the State                                                            
could  refuse  or discontinue  a  permit  were  the land  to  become                                                            
necessary to a project.                                                                                                         
                                                                                                                                
Mr. Mulligan stated  that a forthcoming amendment  would address Co-                                                            
Chair Green's concern regarding  when an encroachment must have been                                                            
in place. That date would be specified as January 1, 2005.                                                                      
                                                                                                                                
Co-Chair Green  asked for confirmation  that the State could  deny a                                                            
permit or discontinue one.                                                                                                      
                                                                                                                                
Mr. Hooley affirmed.                                                                                                            
                                                                                                                                
Amendment  #1: This amendment  deletes "the  effective date  of this                                                            
Act" and inserts  "January 1, 2005," following the  words "right-of-                                                            
way on" in Section 1(d)(2), page one, line 12.                                                                                  
                                                                                                                                
In addition,  the words  "the effective  date of  this Act,  is" are                                                            
deleted and replaced  with the words "January 1, 2005,  was" in Sec.                                                            
2(c) page two, line five.                                                                                                       
                                                                                                                                
Furthermore, language following  "highway on" in Sec. 2(d) page two,                                                            
line 21 is deleted and replaced as follows.                                                                                     
                                                                                                                                
Delete                                                                                                                          
                                                                                                                                
     "the  effective date of  this Act that  is not authorized  by a                                                            
     written  encroachment  permit until the  department  determines                                                            
     that  the encroachment  does  not qualify  for an encroachment                                                             
     permit issues"                                                                                                             
                                                                                                                                
Insert                                                                                                                          
                                                                                                                                
     "January  1, 2005,  unless the  owner, occupant,  or person  in                                                            
     possession  of the encroachment or any other  person causing or                                                            
     permitting  the  encroachment  to  exist  receives  the  notice                                                            
     provided under AS  19.25.230 and is informed of the application                                                            
     process for an encroachment permit"                                                                                        
                                                                                                                                
Finally, the amendment  inserts a new section into Sec. 2 page three                                                            
following line eight as follows.                                                                                                
                                                                                                                                
     (g) Except  for damage, injury,  or death resulting  from gross                                                            
     negligence  or reckless or intentional misconduct  of the state                                                            
     or an agent  or employee of the state, the state  is not liable                                                            
     for  damage to, or damage  resulting from  the presence  of, an                                                            
     encroachment in the right-of-way of a state highway."                                                                      
                                                                                                                                
Co-Chair Wilken moved for the adoption of Amendment #1.                                                                         
                                                                                                                                
Mr.  Mulligan  noted  that this  amendment  would  specify  that  an                                                            
encroachment  must have been  in existence  by January 1, 2005.  The                                                            
addition  of subsection  (g) "would  remove any  liability from  the                                                            
State" for its allowance of an encroachment.                                                                                    
                                                                                                                                
Co-Chair   Green  understood   therefore  that   the  inclusion   of                                                            
subsection (g) would remove  the State from liability pertaining the                                                            
encroachment.                                                                                                                   
                                                                                                                                
There being no objection, Amendment #1 was ADOPTED.                                                                             
                                                                                                                                
6:36:31 PM                                                                                                                    
                                                                                                                                
Senator Stedman remarked  that language in Section 1(d)(2) page one,                                                            
line 11 as well as language  in Sec. 2(c) page two, line two, are of                                                            
concern  as  the  use  of the  word  "may"  and  the  word  "shall",                                                            
respectively,  could imply  that citizens  could  have the right  of                                                            
imminent  domain on  a right-of-way.  He asked that  input from  the                                                            
Department  of Transportation and  Public Facilities be provided  in                                                            
this  regard as  there  are numerous  encroachments  throughout  the                                                            
State, which the  Department must address. This language  appears to                                                            
be  "restrictive"  and as  such might  place  the Department  "at  a                                                            
disadvantage" in its ability to clear a right-of-way.                                                                           
                                                                                                                                
Co-Chair  Green asked whether  the language  beginning with  "if the                                                            
department  finds  that"   as reflected   in  Sec.  2(c)  page  two,                                                            
beginning  on line seven  and continuing  for approximately  "anther                                                            
twenty or  so lines" would  address that  concern. In addition,  she                                                            
asked whether  this concern had been  raised in any other  committee                                                            
hearing on this bill.                                                                                                           
                                                                                                                                
6:38:26 PM                                                                                                                    
                                                                                                                                
Mr. Mulligan  responded  in the  negative. Continuing,  however,  he                                                            
noted that  while the Department  had expressed  some "unease"  with                                                            
the language, no amendment had been suggested.                                                                                  
                                                                                                                                
Senator  Stedman asked  that further  input from  the Department  be                                                            
sought as  "operative words  such as the  Department shall  issue an                                                            
encroachment  permit" could result  in "substantial impacts"  on the                                                            
State.                                                                                                                          
                                                                                                                                
Co-Chair  Green asked  that  a representative  from  the  Department                                                            
provide input to the Committee in this regard.                                                                                  
                                                                                                                                
Senator Stedman also suggested  that the encroachment permits issued                                                            
by  the  Department  should  be time  specific  and  should  include                                                            
renewal provisions.                                                                                                             
                                                                                                                                
Co-Chair  Green asked  whether  such language  was  included in  the                                                            
bill.                                                                                                                           
                                                                                                                                
6:39:38 PM                                                                                                                    
                                                                                                                                
Mr. Mulligan stated that current regulations allow for the issuance                                                             
of five-year permits, which could be renewed in five-year                                                                       
increments. This would be verified.                                                                                             
                                                                                                                                
Co-Chair Green ordered the bill HELD in Committee in order to                                                                   
receive further information from the Department.                                                                                
                                                                                                                                
6:40:10 PM                                                                                                                    
                                                                                                                                

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