Legislature(2005 - 2006)BUTROVICH 205
04/04/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB318 | |
| HB408 | |
| HB400 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 318 | TELECONFERENCED | |
| += | HB 408 | TELECONFERENCED | |
| + | HB 400 | TELECONFERENCED | |
HB 318-LIMITATION ON EMINENT DOMAIN
8:43:30 AM
CHAIR RALPH SEEKINS announced CSHB 318(FIN) AM to be up for
consideration.
PETER PUTZIER, Senior Assistant Attorney General, Department of
Law (DOL), and CRAIG JOHNSON, Staff to Representative Lesil
McGuire, introduced themselves for the record.
CHAIR SEEKINS asked the witnesses who has the power of eminent
domain under current law.
MR. JOHNSON submitted a list to the committee members.
CHAIR SEEKINS speculated that many people were not aware of all
the entities that have power of eminent domain. He referred to
page 2 of the bill and asked Mr. Putzier to comment on who would
exercise eminent domain for all the items listed under Section
2, paragraph 3.
MR. PUTZIER responded it would be in part the Department of
Transportation and Public Facilities (DOTPF) under AS
09.55.240(a)(3) or possibly a housing finance company, depending
on the particular project.
CHAIR SEEKINS asked Mr. Putzier to describe an organized
borough.
MR. PUTZIER said that was under Title 9 but did not have the
statute with him.
8:47:43 AM
CHAIR SEEKINS asked Mr. Putzier whether an unincorporated
community in the State of Alaska could utilize the powers of
eminent domain to build a public building.
MR. PUTZIER responded the bill wouldn't authorize the entities
to utilize those powers. Title 35 gives broad authority to build
public buildings and public works if the demand is there and the
DOTPF generally gives the authority to build.
8:49:44 AM
CHAIR SEEKINS admitted he had a problem with that if the
committee were trying to limit the number of entities that have
power of eminent domain. A city or a village is really a private
entity. He said anyone could form a community and claim that a
public use facility was needed.
MR. PUTZIER responded that the bill does not allow any entity to
transfer authority of eminent domain to private entities. Any
project is subject to review and there are very stringent
standards and protections. He said the concerns that the Chair
was raising were already addressed in Alaska Statutes and under
Civil Rule.
8:51:45 AM
CHAIR SEEKINS referred to Section 2 (a)(5) and asked whether
that didn't refer to a private-to-private transfer.
8:53:06 AM
Senator Gene Therriault joined the meeting.
MR. PUTZIER clarified that the Chair was speaking about present
law. He said what is reflected is "value judgments" of past
legislative sessions. He admitted that it was potentially
possible under paragraph (5) that a private transfer could be
done.
CHAIR SEEKINS asked whether paragraph 6 contemplated a private
transfer.
MR. PUTZIER said yes, potentially. It seems to be a provision
set up to provide access to farms. He suggested that past
legislators considered access to farms a high priority at the
time.
CHAIR SEEKINS opined telephone, telegraph, and fiber optic lines
could be privately owned as well as sewerage for not less than
ten families.
MR. PUTZIER responded that telephone lines remained under state
authority so there could be a taking and the take could remain
in public ownership with a right given to somebody to use that
land. He conceded there was an element of private takings in
many of the current statute provisions.
CHAIR SEEKINS asked Mr. Putzier whether there is a conflict in
Section 3, subsection (d).
MR. PUTZIER said that the DOL tried to address that in the
following sections where it forbids a private-to-private
transfer.
8:56:20 AM
CHAIR SEEKINS asked Mr. Putzier the effect if the committee were
to amend subsection (d) to say, "the power of eminent domain may
not be exercised to acquire private property for the purpose for
transferring title to the property to a private person except
for the purposes set forth in this chapter."
MR. PUTZIER responded AS 09.55 is quite broad. He asked the
committee to allow him to examine that statute before committing
to an opinion.
CHAIR SEEKINS said the committee could narrow it down to say
"except as provided in .240(a)."
SENATOR THERRIAULT said he saw the potential conflict that the
Chairman was trying to avoid and that he was attempting to
clarify legislative intent. The language he suggested was a good
attempt to address it, he noted.
SENATOR HOLLIS FRENCH agreed with Senator Therriault. He
suggested the limitations on pages 3 and 4 of the bill would
still apply to the list laid out in the CS.
CHAIR SEEKINS said:
Constitutionally we've provided for transfer of
property used for a private way of necessity. Some of
the things that we've put farther down in the statute
have already been provided for in the earlier part of
the statute. I try to read the whole thing from (a)
down and I get confused and I'd like to eliminate
that.
MR. PUTZIER said the concern over his suggested amendment is
that anything under AS 09.55.240(a) would be open to some kind
of a private-to-private transfer and that could be over broad
because (a) lists a very broad smattering of potential public
uses. He said he didn't know if the Department wanted to open
the door to say that private transfers are allowed on each and
every one of those circumstances. As presently written there is
no explicit authority to allow a private-to-private transfer.
9:00:01 AM
CHAIR SEEKINS countered AS 09.55.240(a)(6) specifically states
"private roads leading from highways to residences, mines, or
farms" and so that indicates the state is gaining title through
eminent domain.
MR. PUTZIER suggested that if there were certain private-to-
private transfers that the Legislature wanted to protect then
that should be listed as an exception.
9:01:06 AM
SENATOR GRETCHEN GUESS asked for clarification whether the
current statute allows for private-to-private transfer for
public use.
MR. PUTZIER said yes, theoretically but it hasn't been tested in
Alaska and it would be subject to challenge. He said there is a
specific statute in Title 38 where the Legislature has allowed
for the delegation of eminent domain power to certain entities
to acquire right of way in association with pipelines.
9:03:18 AM
CHAIR SEEKINS stated the statute confers to grant eminent domain
powers to certain entities. He said he wanted to clarify in
statute the entities that have clear power of eminent domain and
the situations for which they can exercise that power. He cited
an "Alyeska Pipeline case" and said it appeared that the
pipeline company could, upon delegation from the state, exercise
the power of eminent domain.
9:05:23 AM
MR. PUTZIER responded that was a rare instance where the
Legislature has specifically delegated that power, acting as an
agent for the State of Alaska.
SENATOR FRENCH asked whether the state delegates the power of
eminent domain in a blanket delegation or whether the delegation
was narrow to the specific purposes to the entity.
MR. PUTZIER said eminent domain statutes are construed very
narrowly.
SENATOR FRENCH asked for clarity whether the natural gas
authority was a private entity.
CHAIR SEEKINS said it is not a public corporation nor is it a
state entity so it would be a private person.
MR. PUTZIER said AS 09.55.240(d)(2) was placed in the bill with
the recognition that the Legislature has previously made certain
judgments about the entities to which the power of eminent
domain was given. Utilities are the most common example. The
intent of the bill was narrowly focused and didn't mean to
revisit the 12 entities that currently have the power of eminent
domain.
9:09:17 AM
SENATOR GUESS clarified that anyone on the current list can
continue to use eminent domain.
MR. PUTZIER said that was the intent of the bill. The DOL is
trying to place parameters on the circumstances under which they
can do a private-to-private transfer.
CHAIR SEEKINS asked whether the Knik Arm Bridge and Toll
Authority could still exercise power in the Anchorage and Mat-Su
boroughs.
MR. PUTZIER said yes as long as it is for public use.
9:10:25 AM
SENATOR CHARLIE HUGGINS asked the process for how a private
mining company finds a place to put in a tailings area.
MR. PUTZIER said the company wouldn't have the ability to
exercise eminent domain.
SENATOR HUGGINS argued that as he reads the statute, the company
would be allowed to take property to do so.
MR. PUTZIER countered a private entity did not have the power to
do that but a state entity, such as the Department of Natural
Resources, could exercise eminent domain in the company's
behalf, although it would have to be approved by the
Legislature.
CHAIR SEEKINS noted that (d) under Section 3 prohibits that
action from happening.
MR. PUTZIER said that raises a good point and the Legislature is
working to restrict situations exactly such as the one that
Senator Huggins posed.
CHAIR SEEKINS said he thought the focus was on situations such
as the taking of someone's home to give it to a condominium
project for the purpose of increasing the tax base.
MR. PUTZIER replied that was taken into account and the intent
was to protect all of those existing uses and not to curtail the
power of the existing entities that are in statutes.
9:13:39 AM
CHAIR SEEKINS said he was confused.
SENATOR HUGGINS expressed concern that as the bill is written a
private company, such as a Wal-Mart could take a person's home
in order to build a store.
MR. JOHNSON countered that would not qualify for public use.
SENATOR FRENCH commented that once the bill is passed it would
be a lot harder for a private company to ask a state entity to
use their eminent domain powers to help them in a development.
9:15:46 AM
CHAIR SEEKINS said long ago the courts redefined the term
"public use" to include "for the public welfare." He said the
committee should carefully define the term "public use" if they
are going to use it.
MR. JOHNSON recognized that there are legitimate uses for
eminent domain and that the bill sponsor tried to keep existing
law as it stands with the exception of the private-to-private
transfer and the recreational aspect. Those are the only two
areas that HB 318 is trying to affect, although they are open to
making the bill stronger, if the committee sees fit.
9:18:19 AM
SENATOR HUGGINS expressed concern that the bill could shut down
resource development.
MR. JOHNSON responded that issue is specifically addressed in
the bill. In addition, the bill also provides that if a large
mine comes into existence, it would be a relatively simple
process to enact legislation to allow for development to happen.
CHAIR SEEKINS noted that the State of Alaska hasn't seen a major
problem yet but the potential exists. Referring to the Kelo
case, he said he leans more toward Justice Thomas's decision
than with how the majority of the court ruled on the case. He
expressed concern that the bill was convoluted, unclear, and
hard to understand. He said he would prefer to sit down and make
the entire statute fit together more clearly and concisely.
9:23:16 AM
CHAIR SEEKINS continued there is still the question of what the
effect would be if the committee wanted to allow political
subdivisions to have power to be able to have the power of
eminent domain within their jurisdiction but with a super
majority.
SENATOR FRENCH offered to explain his amendment titled 24-
LS1083\XA.14. He said it would encapsulate the instances under
which a municipality could exercise power of eminent domain.
MR. JOHNSON noted the original intent of the bill was to
severely curtail the ability of municipalities and other
entities to use eminent domain. There was a similar amendment in
the House Judiciary Committee but it was not as complete. The
sponsor would support the amendment but it might not pass the
House floor session.
9:27:17 AM
CHAIR SEEKINS asked Senator French if he could add the word
"public" before hearing on line 12.
9:29:47 AM
SENATOR FRENCH did so and then moved Amendment 4.
24-LS1083\XA.14
Bullock
A M E N D M E N T 4
OFFERED IN THE SENATE by Senator French
TO: CSHB 318(FIN) am
Page 6, line 19, following "AS 09.55.240(e).":
Insert "However, a municipality may exercise the power of
eminent domain to acquire private property from a private person
for the purpose of transferring title to the property to another
private person for economic development and for the purposes
expressed in AS 09.55.240(e) if
(1) the municipality does not delegate the power
of eminent domain to another person;
(2) before issuing the notice in (3) of this
subsection, the municipality makes a good faith effort to
negotiate the purchase of the property;
(3) written notice is provided at least 90 days
before the hearing to each owner of land that may be
affected by the exercise of eminent domain;
(4) the municipality holds a hearing on the
exercise of eminent domain after adequate public notice;
(5) the governing body of the municipality
approves the exercise of eminent domain by a two-thirds
majority vote; and
(6) in the case of a second class city, an
ordinance is adopted, the ordinance is submitted to the
voters for approval at the next general election or at a
special election called for that purpose, and the exercise
of eminent domain is approved by a majority of the votes on
the question."
SENATOR HUGGINS objected and asked whether Senator French wanted
to specify a two-thirds vote on line 16.
CHAIR SEEKINS asked the reason someone would request a public
ballot on a second-class city.
MR. JOHNSON responded second-class cities don't have a city
assembly or an organized governmental body.
CHAIR SEEKINS asked then who writes the ordinance.
MR. JOHNSON advised it would be a city manager. He said he would
support Senator Huggins' suggestion.
CHAIR SEEKINS called a brief recess at 9:32:59 AM.
9:36:55 AM
CHAIR SEEKINS called the meeting back to order.
SENATOR FRENCH suggested an amendment to Amendment 4 by
inserting language on line 16 to require that the government or
elected body of a second-class city adopt that ordinance by a
two-thirds majority. Hearing no objections the amendment to
Amendment 4 was adopted.
SENATOR HUGGINS removed his objection to Amendment 4. Hearing no
further objections, Amendment 4 was adopted.
SENATOR FRENCH moved Amendment 5.
24-LS1083\XA.13
Bullock
A M E N D M E N T 5
OFFERED IN THE SENATE by Senator French
TO: CSHB 318(FIN) am
Page 4, following line 15:
Insert a new subsection to read:
"(f) Only the state may delegate the power of eminent
domain."
Reletter the following subsection accordingly.
CHAIR SEEKINS objected for the purpose of explanation.
SENATOR FRENCH explained Amendment 5 would add new language to
clarify that only the state may delegate the power of eminent
domain. The only entity in the State of Alaska that can delegate
the power of eminent domain is the State itself and not any of
its political subdivisions.
CHAIR SEEKINS removed his objection. Hearing no further
objections, Amendment 5 was adopted.
SENATOR FRENCH moved Amendment 6.
24-LS1083\XA.12
Bullock
A M E N D M E N T 6
OFFERED IN THE SENATE by Senator French
TO: CSHB 318(FIN) am
Page 4, line 8:
Delete ";"
Insert "."
Page 4, line 9:
Delete all material.
Page 4, following line 15:
Insert a new subsection to read:
"(f) Notwithstanding the limitations on the power of
eminent domain in (d) and (e) of this section, the
legislature may approve the exercise of eminent domain
against private property in an Act, the subject of which is
limited to the transfer of the property for a purpose
otherwise restricted under (d) or (e) of this section."
Reletter the following subsection accordingly.
CHAIR SEEKINS objected for the purpose of explanation.
9:39:42 AM
SENATOR FRENCH said he subtitled it the "Guess Amendment" and
explained that it was meant to capture her suggestion to make
the exercise of eminent domain as public as possible.
CHAIR SEEKINS removed his objection. Hearing no further
objections, Amendment 6 was adopted.
SENATOR THERRIAULT said he didn't have an objection to Amendment
6 but said if the Legislature chose to ignore that statute and
insert something into another bill at the last minute they
probably could.
9:41:46 AM
MR. JOHNSON expressed support for the integrity and strength of
the bill.
CHAIR SEEKINS commented that Senator Therriault was correct in
th
that the bill would bind the 24 Legislature but no future
Legislatures because it is a subject covered under the Uniform
Rules. He referred to page 4, line 25 and asked Mr. Putzier
whether a person has to live in a home for 91 days before it's
protected.
MR. JOHNSON answered the question and said they wrestled with
trying to define the home. They wanted to prevent someone from
throwing up a house simply for the purpose to prevent the taking
by eminent domain.
CHAIR SEEKINS said a person could rent the house for 90 days and
then buy it and eminent domain couldn't touch it since the bill
merely states, "inhabited for 90 days."
MR. JOHNSON suspected that situation might not pass the test.
9:46:27 AM
CHAIR SEEKINS disagreed. He said the bill would allow a new
homeowner a 90-day window for someone to exercise private
transfer of his home for eminent domain purposes.
MR. JOHNSON suggested that situation would be part of the
disclosure in the real estate acquisition.
9:48:11 AM
MR. JOHNSON admitted that the sponsor struggled with writing the
bill.
SENATOR FRENCH suggested the committee could take out the lines
"by the owner" on page 4, line 25.
MR. JOHNSON said he was handed a note from a realtor that says
the title insurance company would identify any kind of notice
recorded against a property and it would raise a red flag.
CHAIR SEEKINS clarified that there is still a window of
opportunity within the 90 days for an instance of eminent domain
to begin.
9:51:25 AM
CHAIR SEEKINS reiterated that the committee was trying to
protect the private home.
MR. JOHNSON said during construction of the bill they looked at
making someone qualify for a permanent fund dividend (PFD) at
that address.
CHAIR SEEKINS asked Mr. Putzier to clarify whether Page 5 line
31 was establishing the right to provide for a "to and along"
provision, which would allow a pathway or trail along a body of
water.
MR. PUTZIER deferred the question to John Baker.
9:53:53 AM
JOHN BAKER, Assistant Attorney General, Department of Law (DOL),
Natural Resources Section, responded to Senator Seekins'
question and said it would allow that but it would have to occur
in the circumstance that the route was necessary in order to
reach the public land or waterway.
CHAIR SEEKINS expressed concern that the provision was
establishing a "tooling along" concept rather than the most
direct route.
MR. BAKER responded it would have to be shown that there was no
other reasonable access.
CHAIR SEEKINS clarified that it was not the intent to establish
a private action for "tooling along" pathways that are not
necessary. He informed Mr. Johnson that he had no further
questions today. He asked Mr. Putzier to help draft an amendment
for the definition of a "privately owned residence" that would
include a residence that was held in a trust.
MR. PUTZIER acknowledged that was a valid concern.
9:57:37 AM
CHAIR SEEKINS referred to page 1, line 14 and asked whether it
would be a better idea to use the words "privately owned
residence" rather than "personal residence."
MR. JOHNSON agreed to the change.
SENATOR GUESS asked Mr. Johnson whether they have defined small
boat harbor.
MR. JOHNSON said they have that on the radar and will discuss it
the next meeting.
CHAIR SEEKINS asked Mr. Luke Hopkins whether the committee has
addressed his concerns.
10:01:16 AM
LUKE HOPKINS, Assembly Member, Fairbanks North Star Borough,
referred to page 5, line 31 and said he was confused about
whether or not the Fairbanks North Star Borough would be able to
continue work on a 100-mile loop trail that would be used to
gain access out of the populated area to public lands. He asked
for someone to get back to him on that subject.
MICHAEL NELSON, Glennallen, testified in opposition to the
subject of eminent domain. He said HB 318 doesn't do enough for
private property owners.
KEVIN RICHEY, Realtor, complimented the committee for their work
on the bill.
CHAIR SEEKINS held the bill in committee at 10:06:37 AM.
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