Legislature(2005 - 2006)BUTROVICH 205

03/28/2006 08:30 AM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 318 LIMITATION ON EMINENT DOMAIN TELECONFERENCED
Heard & Held
+= HB 408 CHILD ABUSE/CINA/ADOPTION/FOSTER CARE TELECONFERENCED
Heard & Held
              HB 318-LIMITATION ON EMINENT DOMAIN                                                                           
                                                                                                                                
8:37:05 AM                                                                                                                    
CHAIR  RALPH SEEKINS  announced CSHB  318(FIN)  AM to  be up  for                                                               
consideration. He said his intent for  the day was to have a good                                                               
round table discussion on the bill.                                                                                             
                                                                                                                                
REPRESENTATIVE LESIL MCGUIRE introduced herself for the record.                                                                 
                                                                                                                                
8:38:18 AM                                                                                                                    
SENATOR  HOLLIS  FRENCH  advised   Representative  McGuire  of  a                                                               
memorandum  received from  Don Bullock  of the  Legislative Legal                                                               
and Research Services Division dated  March 22, 2006 that advised                                                               
that any  "escape hatch"  from the eminent  domain bill  would be                                                               
problematic. He  expressed concern that a  local government would                                                               
not be able to control eminent domain in its own community.                                                                     
                                                                                                                                
Senator Gene Therriault joined the meeting.                                                                                     
                                                                                                                                
REPRESENTATIVE MCGUIRE  responded she  would look favorably  at a                                                               
"voting threshold" if  that is what the  committee preferred. She                                                               
reminded the committee  that Kelo versus City of  New London came                                                               
about due  to a  local action  taken by  a local  government. She                                                               
speculated that the  people of the City of New  London might wish                                                               
that their  state had  legislation to protect  them at  the state                                                               
level when the city let them down.                                                                                              
                                                                                                                                
8:44:12 AM                                                                                                                    
SENATOR GRETCHEN GUESS advised that  the discussion in the Senate                                                               
Judiciary Standing Committee  has been whether or not  to allow a                                                               
local  governing  body  by  a two-thirds  majority  to  make  the                                                               
decision. She noted  the subject was a  difficult balance between                                                               
local control  and free will  and expressed concern  that smaller                                                               
communities do not  get the representation that they  need in the                                                               
state capitol.                                                                                                                  
                                                                                                                                
REPRESENTATIVE MCGUIRE  said she liked  the idea of  a two-thirds                                                               
threshold.                                                                                                                      
                                                                                                                                
SENATOR FRENCH  noted the non-delegable  aspect is  important and                                                               
the  greater  majority  provision protects  minority  rights.  He                                                               
expressed support for the idea.                                                                                                 
                                                                                                                                
CHAIR SEEKINS agreed.  He said he objects when  the city assembly                                                               
responsibility is handed off to private developers.                                                                             
                                                                                                                                
8:48:48 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  noted state  policy makers  should ensure                                                               
that the  rights of the  people are equal  for all. She  said she                                                               
would accept  the will of  the committee.  Paragraph 7 on  page 4                                                               
allows for  a stopgap because it  is difficult to think  of every                                                               
situation that the bill might cover.                                                                                            
                                                                                                                                
8:51:57 AM                                                                                                                    
MR. JOHNSON  added four large  communities have already  made the                                                               
decision  to enact  ordinances similar  to this  legislation. The                                                               
discussion on  the bill is really  whether to afford the  rest of                                                               
the state the same protection of eminent domain.                                                                                
                                                                                                                                
CHAIR SEEKINS  said he  did not  want to  step on  local control.                                                               
Everyone wants to  protect private property but at  the same time                                                               
Alaskans know the importance of access to recreational areas.                                                                   
                                                                                                                                
8:54:26 AM                                                                                                                    
REPRESENTATIVE  MCGUIRE  pointed out  that  the  issue goes  both                                                               
ways.  The Tony  Knowles  Coastal Trail  runs  right through  her                                                               
district, she  stated, and  some people love  it while  some hate                                                               
it. The local  control bypass allows a measure of  balance to the                                                               
bill.                                                                                                                           
                                                                                                                                
CHAIR  SEEKINS  noted  the difference  between  a  developer  and                                                               
conservationist  is that  the developer  wants to  build a  cabin                                                               
this summer where  as the conservationist built  his last summer.                                                               
He said access to recreation was a huge topic in Alaska.                                                                        
                                                                                                                                
8:57:38 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  agreed there are unique  circumstances in                                                               
this state.  She said  the argue against  local control  would be                                                               
that the  bill takes care  of people's concerns  regarding access                                                               
to recreational areas,  such as navigable waters  and hunting and                                                               
fishing rights. The  bill would not limit the  state's ability to                                                               
use the power of eminent  domain in any other circumstance except                                                               
to  take property  from one  private  entity and  transfer it  to                                                               
another  private  entity.  In a  state  where  private  ownership                                                               
represents  one percent  of the  land, there  should be  creative                                                               
options for taking land to accomplish the goal.                                                                                 
                                                                                                                                
CHAIR SEEKINS stated the recreational  side was not restricted to                                                               
private-to-private transfer.                                                                                                    
                                                                                                                                
REPRESENTATIVE MCGUIRE stood corrected.                                                                                         
                                                                                                                                
9:00:41 AM                                                                                                                    
SENATOR GUESS noted  page 5, line 11 lists what  is excluded from                                                               
the definition  of recreational.  She referred to  subsection (e)                                                               
on page 4 and said there is nothing to override that provision.                                                                 
                                                                                                                                
REPRESENTATIVE MCGUIRE  responded that  subsection (7)  was added                                                               
due to  the fact that the  bill already had many  exclusions. She                                                               
said she would support it if  the committee chose to add the same                                                               
legislative approval  provision to  the recreational side  of the                                                               
bill.                                                                                                                           
                                                                                                                                
MR. JOHNSON advised  it would be a simple fix  for the committee.                                                               
On page  6 line  18 simply  just change  the (1)-(6)  to (1)-(7).                                                               
That  would  roll  the legislative  oversight  into  the  private                                                               
property prong.                                                                                                                 
                                                                                                                                
9:03:55 AM                                                                                                                    
REPRESENTATIVE MCGUIRE  advised the  committee that  the concepts                                                               
developed separately  for the economic and  recreational aspects.                                                               
People question the  reason the state could take  their homes for                                                               
recreational reasons if they can't for economic purposes.                                                                       
                                                                                                                                
SENATOR GUESS referred  to page 3, lines 29-31  and asked whether                                                               
that would allow  for a statute to be created  that would allow a                                                               
real estate company to exercise eminent domain.                                                                                 
                                                                                                                                
MR.  JOHNSON  said the  definition  of  private person  could  be                                                               
utilities,  pipeline  companies,  or   any  one  other  than  the                                                               
government.                                                                                                                     
                                                                                                                                
REPRESENTATIVE MCGUIRE advised "private  person" is defined in AS                                                               
09.55.240.                                                                                                                      
                                                                                                                                
9:08:41 AM                                                                                                                    
PETER PUTZIER,  Senior Assistant Attorney General,  Department of                                                               
Law (DOL), responded to the  question regarding "private person."                                                               
He handed out a default definition  of " private person" and said                                                               
it includes  corporations and a  wide variety of  other entities.                                                               
Utilities have  been granted the  right of eminent  domain. Lines                                                               
29-31  are in  the bill  to make  it clear  that their  authority                                                               
remains status quo.                                                                                                             
                                                                                                                                
9:09:51 AM                                                                                                                    
SENATOR  GUESS said  for the  record  she read  AS 09.55.240  and                                                               
there is no definition.                                                                                                         
                                                                                                                                
MR.  PUTZIER  said  if  there  were  a  question  regarding  what                                                               
"private person" means, it would be as defined in Title 1.                                                                      
                                                                                                                                
SENATOR FRENCH  asked the number  of express  authorizations that                                                               
exist in statute regarding eminent domain.                                                                                      
                                                                                                                                
MR.  PUTZIER  offered  a  list   of  all  the  authorizations  to                                                               
committee members.                                                                                                              
                                                                                                                                
9:12:28 AM                                                                                                                    
DAVE FEEKEN,  Alaska Association  of Realtors testified  that the                                                               
Kelo  decision  defined economic  development  as  a public  use,                                                               
taking private property  from one owner and giving  it to another                                                               
for the  purpose of economic  development. In a  survey conducted                                                               
by the Association  of Realtors, 97 percent were  opposed to that                                                               
type of eminent domain powers. The  US Supreme Court found in the                                                               
Kelo  case that  pursuant to  a well  conceived plan,  the public                                                               
benefits through  increased tax  revenues was  good enough  to be                                                               
called a public use.                                                                                                            
                                                                                                                                
With only one percent of Alaska's  land in private hands, the use                                                               
of  eminent domain  needs to  be  severely restricted.  Currently                                                               
there are  10,000 active  private-to-private eminent  domain case                                                               
takings in process in the United  States. "Your home is only your                                                               
castle so  long as somebody  doesn't come along and  convince the                                                               
city  council they  have a  better use,"  he stated.  The key  to                                                               
eminent  domain use  is a  good  definition of  "public use"  and                                                               
"economic  development," he  advised. The  Alaska Association  of                                                               
Realtors  will continue  to work  on  eminent domain  legislation                                                               
throughout the summer.                                                                                                          
                                                                                                                                
9:16:02 AM                                                                                                                    
GARVAN BUCARIA, Wasilla, testified that  the language of the bill                                                               
was  perplexing  and difficult  to  keep  up with.  His  previous                                                               
testimony  questioned  the  need  for using  eminent  domain  for                                                               
recreational purposes.  He said he  is subject to  eminent domain                                                               
under  the  2004-2005  Department of  Transportation  and  Public                                                               
Facilities study, which has notified  him that his property might                                                               
be  taken for  a main  street  widening project  in Wasilla.  Two                                                               
years later,  he said,  he still  does not know  what the  DOT is                                                               
planning to do and it has been very stressful.                                                                                  
                                                                                                                                
He agreed  with the  local control  provision but  said it  was a                                                               
relative question.  He has  attended many  meetings on  the issue                                                               
and  said he  is aggrieved  by the  lack of  public participation                                                               
even though  it affects  everyone in  the community.  He believes                                                               
there   is  not   sufficient  public   notification  within   the                                                               
communities.                                                                                                                    
                                                                                                                                
9:20:37 AM                                                                                                                    
SENATOR HUGGINS asked the location of Mr. Bucaria's property.                                                                   
                                                                                                                                
MR.  BUCARIA responded  with the  location of  his property.  The                                                               
proposed road would  go through his house  and completely destroy                                                               
the center of Wasilla, he stated.                                                                                               
                                                                                                                                
SENATOR HUGGINS  asked the  length of  time he  has lived  in his                                                               
house.                                                                                                                          
                                                                                                                                
MR. BUCARIA  said he has  lived in his  house since 1986  but has                                                               
been an Alaska resident since 1975.                                                                                             
                                                                                                                                
9:23:23 AM                                                                                                                    
SENATOR GUESS moved Amendment 1. Page  4, line 9: Delete "by law"                                                               
and  following "transfer":  Insert  "in an  Act,  the subject  of                                                               
which is limited to the transfer."                                                                                              
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
SENATOR  GUESS explained  Amendment 1  would ensure  that if  the                                                               
Legislature does approve  a transfer of property that  it does so                                                               
under a separate bill, which would ensure public process.                                                                       
                                                                                                                                
REPRESENTATIVE MCGUIRE expressed support.                                                                                       
                                                                                                                                
Hearing   no  further   objections,  Amendment   1  was   adopted                                                               
unanimously.                                                                                                                    
                                                                                                                                
SENATOR GUESS  moved Amendment 2.  Page 5, line 8:  Delete "small                                                               
boat harbor."                                                                                                                   
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
SENATOR  GUESS  advised  Amendment  2 would  remove  "small  boat                                                               
harbor"  from recreational  facility  or  project. She  expressed                                                               
concern   over  unintended   consequences  due   to  a   lack  of                                                               
definition.                                                                                                                     
                                                                                                                                
SENATOR THERRIAULT said the small  boat harbor land would already                                                               
be  owned  by the  state  and  wondered whether  Senator  Guess's                                                               
concern was over the access to it.                                                                                              
                                                                                                                                
9:25:50 AM                                                                                                                    
SENATOR GUESS  responded she was  uncomfortable since  the phrase                                                               
was undefined and nebulous.                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT asked  the bill  sponsor  where the  language                                                               
came from.                                                                                                                      
                                                                                                                                
MR. JOHNSON advised  they tried to encompass as  much as possible                                                               
with regard  to recreational facilities.  He said they  could not                                                               
come up with a  scenario where a home would be  taken for a small                                                               
boat harbor.                                                                                                                    
                                                                                                                                
CHAIR SEEKINS noted the restrictions  would be to within 250 feet                                                               
of the home.                                                                                                                    
                                                                                                                                
MR. JOHNSON  surmised the  small boat harbor  would be  mainly in                                                               
the water anyway so the likelihood  of the taking of any property                                                               
would be difficult to conceive.                                                                                                 
                                                                                                                                
CHAIR  SEEKINS speculated  that the  access to  the harbor  could                                                               
affect private property.                                                                                                        
                                                                                                                                
MR. JOHNSON agreed.                                                                                                             
                                                                                                                                
9:27:55 AM                                                                                                                    
CHAIR SEEKINS removed his objection.                                                                                            
                                                                                                                                
SENATOR HUGGINS  cautioned the committee against  deleting "small                                                               
boat harbor"  too quickly. He  suggested the committee work  on a                                                               
definition first.                                                                                                               
                                                                                                                                
9:30:55 AM                                                                                                                    
SENATOR  GUESS  asked Senator  Huggins  whether  page 5,  line  9                                                               
wouldn't cover his concerns.                                                                                                    
                                                                                                                                
SENATOR HUGGINS indicated no.                                                                                                   
                                                                                                                                
9:33:12 AM                                                                                                                    
CHAIR SEEKINS expressed  concern over the lack  of definition. He                                                               
posed a  hypothetical scenario of  a right-of-way to  a navigable                                                               
stream. In  order to  accommodate the ability  to launch  a boat,                                                               
the city  might need to  take a  small portion of  the waterfront                                                               
and  that  could  be  within  250 feet  of  someone's  home.  The                                                               
question remains  whether that would  be defined as a  small boat                                                               
harbor.                                                                                                                         
                                                                                                                                
9:36:04 AM                                                                                                                    
SENATOR  GUESS  withdrew  Amendment  2   in  order  to  obtain  a                                                               
definition of small boat harbor.                                                                                                
                                                                                                                                
REPRESENTATIVE MCGUIRE committed to work on that issue.                                                                         
                                                                                                                                
SENATOR GUESS moved  Amendment 3. Page 6, line  4: Delete "rather                                                               
than primarily for recreation."                                                                                                 
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
SENATOR  GUESS explained  that the  words "rather  than primarily                                                               
for recreation"  bother her since  the committee has  not defined                                                               
the word "recreation."                                                                                                          
                                                                                                                                
9:38:20 AM                                                                                                                    
REPRESENTATIVE MCGUIRE did not object to the proposed amendment.                                                                
                                                                                                                                
CHAIR  SEEKINS removed  his objection  and the  committee adopted                                                               
Amendment 3 unanimously.                                                                                                        
                                                                                                                                
9:40:38 AM                                                                                                                    
SENATOR  FRENCH  advised  the  committee that  he  would  have  a                                                               
proposed amendment concerning the  locally elected body having to                                                               
approve transfer of property by a  two-thirds vote and that it is                                                               
non-delegable.                                                                                                                  
                                                                                                                                
CHAIR  SEEKINS  said  he  did  not  object  provided  there  were                                                               
provisions for notice and public hearings.                                                                                      
                                                                                                                                
SENATOR HUGGINS expressed support for local control.                                                                            
                                                                                                                                
CHAIR SEEKINS held the bill in committee.                                                                                       

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