Legislature(2005 - 2006)BUTROVICH 205

03/02/2006 08:30 AM Senate JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 298 TRUSTS: CHALLENGES; CLAIMS; LIABILITIES TELECONFERENCED
Moved CSSB 298(JUD) Out of Committee
+ HB 92 UNIV. OF ALASKA & NONPROFIT CORP STOCK TELECONFERENCED
Heard & Held
+ HB 318 LIMITATION ON EMINENT DOMAIN TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 284 SENTENCING FOR ALCOHOL-RELATED CRIMES
Moved CSSB 284(JUD) Out of Committee
= SB 249 REPORTING BAIL AND RELEASE INFORMATION
Moved CSSB 249(JUD) Out of Committee
              HB 318-LIMITATION ON EMINENT DOMAIN                                                                           
                                                                                                                                
9:54:28 AM                                                                                                                    
CHAIR  RALPH SEEKINS  announced  CSHB  318(FIN) am  to  be up  for                                                              
consideration.                                                                                                                  
                                                                                                                                
CRAIG JOHNSON,  Staff to Representative Lesil  McGuire, introduced                                                              
the bill  and said  it resolved  around a  policy call  of whether                                                              
the state  should allow  private property to  be transferred  to a                                                              
private  individual  for  economic   gain.  Also,  should  eminent                                                              
domain be  allowed to take someone's  private home so  that others                                                              
might recreate, he  asked. He referred to Kelo versus  City of New                                                              
London where  the city captured  forty homes and  transferred them                                                              
to an  economical development  project and  the property  ended up                                                              
being a parking  lot. This created outrage across  the country and                                                              
to date  more than  forty pieces  of legislation  has entered  the                                                              
federal system  regarding eminent  domain. The  bill that  has the                                                              
most  support  says  that  any state  or  municipality  that  uses                                                              
eminent  domain to  take private  property for  private gain  will                                                              
lose their economic development money for a period of two years.                                                                
                                                                                                                                
More  than thirty  states are  in  the process  of addressing  the                                                              
issue through legislation  and the sponsor of the  bill would like                                                              
to ensure the same thing could not happen in Alaska.                                                                            
                                                                                                                                
9:57:02 AM                                                                                                                    
MR. JOHNSON said  he has discovered through research  that some of                                                              
the properties taken through eminent domain were second-                                                                        
generation  homes that  were in  a viable  neighborhood. The  bill                                                              
creates a  definition for the word  "home." The sponsor  of HB 318                                                              
intends  to  protect  Alaskan's  homes as  much  as  possible.  He                                                              
prepared the  committee that the  testimony they would  hear would                                                              
not  be totally  supportive  and he  conceded  that it  was not  a                                                              
"perfect bill."                                                                                                                 
                                                                                                                                
9:59:34 AM                                                                                                                    
MR. JOHNSON  stated that  many attorneys have  looked at  the bill                                                              
as well  as state departments,  the Realtors Association,  utility                                                              
companies,  the railroads,  and  some oil  companies. The  current                                                              
version represents  a balance  from the  suggestions and  concerns                                                              
of many different entities.                                                                                                     
                                                                                                                                
10:02:26 AM                                                                                                                   
SENATOR CHARLIE  HUGGINS asked  Mr. Johnson  the type  of feedback                                                              
they are receiving regarding the trail system in Anchorage.                                                                     
                                                                                                                                
MR. JOHNSON  said they have heard  a lot of support  regarding the                                                              
trail  system,  mainly  from  the  city  assembly  who  passed  an                                                              
ordinance  against  the taking  of  personal property.  The  basic                                                              
premise of  the bill is that a  person's home is their  castle and                                                              
that the least the government can do is protect it.                                                                             
                                                                                                                                
10:05:56 AM                                                                                                                   
SENATOR HUGGINS  asked for  clarification  whether the bill  would                                                              
impact traditional trails.                                                                                                      
                                                                                                                                
MR.  JOHNSON  said  access  to   hunting  and  fishing  trails  is                                                              
specifically protected in the bill.                                                                                             
                                                                                                                                
SENATOR HOLLIS  FRENCH said  most projects  have many  aspects and                                                              
as an example,  someday there will  be a large development  on the                                                              
south  side of  Mount  McKinley  to allow  people  more access  to                                                              
Denali National  Park. That  will have a  huge economic  impact on                                                              
the area.  He asked Mr.  Johnson how he  proposes to  separate the                                                              
recreational  aspect of  a new hotel  and road  from the  economic                                                              
development aspects.  He said property  could be taken to  build a                                                              
railroad  because that would  fall into  economic development  but                                                              
some projects are large-scale and are mixed.                                                                                    
                                                                                                                                
MR. JOHNSON  said that example  wouldn't come under  consideration                                                              
because that is  federal land and the bill only  addresses private                                                              
property.                                                                                                                       
                                                                                                                                
SENATOR FRENCH  countered there was a  lot of private land  on the                                                              
south side of Denali  off of the Petersville Road  that would fall                                                              
under the restriction if the bill were too tightly crafted.                                                                     
                                                                                                                                
MR. JOHNSON  said the bill allows  for access to trails  and roads                                                              
and  does not  affect a  developed road  system. If  a borough  or                                                              
munipality  wants to  take private  land  and sell  it to  another                                                              
private individual  it would be  prohibited. If they want  to keep                                                              
it for their  own use, such  as infrastructure, then it  would not                                                              
be protected  under the bill.  If they  want to sell  private land                                                              
to  a developer  of a  lodge,  they would  have  trouble doing  so                                                              
under the bill.                                                                                                                 
                                                                                                                                
10:09:52 AM                                                                                                                   
SENATOR FRENCH  said ultimately the  judge would make the  call of                                                              
whether the  eminent domain taking  of someone's private  land was                                                              
for  economic development  or  not. He  felt  that it  would be  a                                                              
difficult process and subject to interpretation.                                                                                
                                                                                                                                
MR. JOHNSON  agreed that  the judge  would make the  determination                                                              
because  by  definition, eminent  domain  is  a court  action.  He                                                              
noted  that only  one percent  of the  land in Alaska  is held  in                                                              
private hands.                                                                                                                  
                                                                                                                                
SENATOR GUESS  asked Mr.  Johnson to  explain the instances  where                                                              
local government  could impose local  control. She  questioned the                                                              
reason he  said that  the bill would  not affect the  Municipality                                                              
of Anchorage.                                                                                                                   
                                                                                                                                
10:12:22 AM                                                                                                                   
MR. JOHNSON  responded ordinances  that are more  restrictive tend                                                              
to trump state laws.                                                                                                            
                                                                                                                                
SENATOR GUESS asked  the reason for adding "fiber  optic lines" on                                                              
page 3 line 8.                                                                                                                  
                                                                                                                                
MR. JOHNSON said  it was done at the request of  a House Judiciary                                                              
Standing Committee  member as an  attempt to plan for  the future.                                                              
If a  cable company has  a right-of-way and  they need to  use the                                                              
land for  fiber optics  infrastructure, they  wanted to  make sure                                                              
that scenario was covered.                                                                                                      
                                                                                                                                
SENATOR GUESS  asked Mr.  Johnson to  explain the third  exemption                                                              
on page 4.                                                                                                                      
                                                                                                                                
MR.  JOHNSON  said  that  is directly  out  of  the  Alaska  State                                                              
Constitution  that guarantees  the right  to access of  resources.                                                              
He  asked to  have a  representative  from the  Department of  Law                                                              
explain the reason.                                                                                                             
                                                                                                                                
PETER PUTZIER,  Senior Assistant  Attorney General,  Department of                                                              
Law (DOL), said  the language comes from Article 8,  Section 18 of                                                              
the Alaska  State Constitution.  The reason  for the exception  is                                                              
to avoid  any argument that  the bill in  some way  conflicts with                                                              
the Constitution.                                                                                                               
                                                                                                                                
10:14:43 AM                                                                                                                   
SENATOR  GUESS  asked  whether  she  reads  it  correctly  that  a                                                              
private home could be taken to access resources.                                                                                
                                                                                                                                
MR.  PUTZIER   explained  the  way   the  Constitution   reads  is                                                              
proceedings in eminent  domain may be undertaken  for private ways                                                              
of  necessity  to  permit  essential   access  for  extraction  or                                                              
utilization of resources. The bill uses the exact same language.                                                                
                                                                                                                                
SENATOR  THERRIAULT asked  Mr. Putzier  to speak  about the  fifth                                                              
exemption.                                                                                                                      
                                                                                                                                
MR. JOHNSON said  it was brought as a concern that  in a case such                                                              
as  an  oil  lease,  the  state  could  take  back  the  lease  if                                                              
absolutely  necessary.  That was  put  in as  a  request from  the                                                              
Department of Natural Resources.                                                                                                
                                                                                                                                
SENATOR GENE THERRIAULT  asked whether the state,  through eminent                                                              
domain would  actually take  back the lease  or whether  the state                                                              
would  take the  resource  under  the lease  and  pay fair  market                                                              
value for it.                                                                                                                   
                                                                                                                                
CHAIR  SEEKINS said  it would  appear  that the  state would  take                                                              
back the surface use of the land.                                                                                               
                                                                                                                                
MR.  PUTZIER said  he  understood  the idea  was  to preserve  the                                                              
right to  take back  the property. There  would be interplay  with                                                              
existing lease  rights and,  he said, it  would be an  interesting                                                              
exercise  of eminent  domain. It  is  theoretically possible  that                                                              
the property  could be taken  back if the  consensus was  that the                                                              
property wasn't used productively.                                                                                              
                                                                                                                                
10:18:47 AM                                                                                                                   
CHAIR  SEEKINS   asked  whether  the  property  would   include  a                                                              
subsurface estate.                                                                                                              
                                                                                                                                
MR. PUTZIER said that was his understanding.                                                                                    
                                                                                                                                
SENATOR  THERRIAULT asked  whether  the definition  of  "property"                                                              
was the  acreage or  the resource.  He also  asked whether  anyone                                                              
could potentially take the resource without taking the acreage.                                                                 
                                                                                                                                
MR.  PUTZIER said  he  did  not think  the  state  could take  the                                                              
resource without paying for the value of the resource.                                                                          
                                                                                                                                
SENATOR GUESS referred  to page 4 line 8 and asked  the reason for                                                              
the phrase "common carrier."                                                                                                    
                                                                                                                                
10:20:31 AM                                                                                                                   
MR. PUTZIER said  the language was in response  to similar federal                                                              
legislation so that  Alaska would be in conformity.  The intent is                                                              
to cover something like public bus systems, for example.                                                                        
                                                                                                                                
SENATOR  GUESS clarified  that under  the  definition of  economic                                                              
development, it means "for profit."                                                                                             
                                                                                                                                
10:21:48 AM                                                                                                                   
SENATOR   FRENCH  observed   there   was  nothing   in  the   bill                                                              
prohibiting  the state  from offering  large amounts  of money  to                                                              
entice landowners to sell.                                                                                                      
                                                                                                                                
MR. PUTZIER said that is absolutely correct.                                                                                    
                                                                                                                                
MR. JOHNSON added  there was also an escape clause  in the case of                                                              
a "hold  out"  that would  allow the  Legislature to  step in  and                                                              
determine whether  a situation was  an appropriate use  of eminent                                                              
domain.                                                                                                                         
                                                                                                                                
SENATOR  FRENCH   referred  to  page  5  and   the  definition  of                                                              
"recreational  facility  or  project."  He  posed  a  hypothetical                                                              
situation of a  small community where thousands of  people use the                                                              
small  boat  harbor  and  the  city  determined  the  harbor  must                                                              
expand.  He asked  how  that situation  would  be  handled if  the                                                              
harbor expansion would be within 250 feet of a residence.                                                                       
                                                                                                                                
10:24:17 AM                                                                                                                   
MR.  JOHNSON  said the  city  would  probably offer  the  resident                                                              
owner  additional  money for  the  property  although  if it  were                                                              
identified to be  a large economic project, a  judge could justify                                                              
the taking of the property.                                                                                                     
                                                                                                                                
SENATOR FRENCH  asked Mr. Johnson  the reason for  not identifying                                                              
"boat  launch" in  the bill.  He  speculated there  would be  more                                                              
incidences  of  that occurring  than  any  issue with  small  boat                                                              
harbors.                                                                                                                        
                                                                                                                                
MR. JOHNSON said  there was no reason. The language  came from the                                                              
Department of Natural  Resources (DNR) and the  Department of Fish                                                              
and Game (DFG).                                                                                                                 
                                                                                                                                
10:28:46 AM                                                                                                                   
CHAIR  SEEKINS asked  Mr. Putzier  the  reason the  bill uses  the                                                              
words "personal property" instead of "private property."                                                                        
                                                                                                                                
MR. PUTZIER  said "personal property"  is generally  considered an                                                              
automobile  or something  like  a  swing set.  "Private  property"                                                              
restricts  the language  to "real  property" that  could be  taken                                                              
with eminent domain.                                                                                                            
                                                                                                                                
CHAIR  SEEKINS  asked the  reason  for  using the  word  "personal                                                              
residence" versus "private residence."                                                                                          
                                                                                                                                
MR. PUTZIER responded either phrase could be used. The                                                                          
definition of residence is difficult and there is no model even                                                                 
in other states.                                                                                                                
                                                                                                                                
CHAIR SEEKINS asked how the residence is considered in the case                                                                 
of someone owning a home in a family trust.                                                                                     
                                                                                                                                
MR. PUTZIER said it would depend on how it flows through the                                                                    
definitions in Section 3 subparagraphs (A-C).                                                                                   
                                                                                                                                
10:31:30 AM                                                                                                                   
CHAIR SEEKINS held the bill in committee.                                                                                       

Document Name Date/Time Subjects