Legislature(2001 - 2002)
05/08/2002 02:23 PM House FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
May 08, 2002
2:23 P.M.
TAPE HFC 02 - 105, Side A
TAPE HFC 02 - 105, Side B
TAPE HFC 02 - 106, Side A
TAPE HFC 02 - 106, Side B
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 2:23 P.M.
MEMBERS PRESENT
Representative Bill Williams, Co-Chair
Representative Eldon Mulder, Co-Chair
Representative Con Bunde, Vice-Chair
Representative Eric Croft
Representative John Davies
Representative Richard Foster
Representative John Harris
Representative Bill Hudson
Representative Ken Lancaster
Representative Jim Whitaker
MEMBERS ABSENT
Representative Carl Moses
ALSO PRESENT
Sara Wright, Staff, Senator Dave Donley; Kim Ognisty, Staff,
Senator John Torgerson; John Middaughy M.D., Department of
Health and Social Services; Don Etheridge, AFL-CIO, Juneau;
Ron Wolfe, Corporate Forester, Sealaska Corporation, Juneau;
Jon Tillinghast, Attorney, Sealaska Corporation, Juneau;
Lynne Freeman, Executive Director, Alaska Commission on
Aging, Juneau; Dennis Poshard, Legislative Liaison,
Department of Transportation & Public Facilities; Wendy
Lindskoog, Alaska Railroad Corporation, Fairbanks; Michael
Downing, Director/Chief Engineer, Division of Statewide
Design & Engineering Services, Department of Transportation
& Public Facilities; Kevin Ritchie, Alaska Municipal League,
Juneau.
TESTIFIED VIA TELECONFERENCE
Lieutenant Julia Grimes, Alaska State Troopers, Department
of Public Safety, Anchorage; Janice Adair, Director,
Division of Environmental Health, Department of
Environmental Conservation, Anchorage; Phyllis Johnson,
Alaska Railroad Corporation, Fairbanks; Alice Hsieh; Dennis
Wheeler, Deputy Municipal Attorney, Municipality of
Anchorage; Jim Cantor, Assistant Attorney General,
Department of Law, Anchorage; Dick Cattanach, Assistant
Attorney General, Department of Law, Anchorage; Dick Mylius,
Divison of Mining, Land and Water, Department of Natural
Resources, Anchorage; Joe McLaughlin, Department of
Epidemiology, Anchorage; Michael Lohnan, Wasilla.
SUMMARY
HB 532 An Act relating to the powers and duties of the
Department of Environmental Conservation, to
barbers, hairdressers, estheticians, manicurists,
tattoo, permanent cosmetic colorists, body
piercers, and their establishments, to the
licensure of child care facilities, to food
establishments, to cosmetics, to tourist camps,
trailer camps, motor courts, and motels, to
restrooms, to smoking in public facilities, to
public health nuisances, to sanitation and
sanitary practices, to camps and canneries, to
schools, to soft drink establishments, to beer and
wine dispensaries, to other establishments, and to
commercially compressed air; and providing for an
effective date.
HB 532 was HEARD and HELD in Committee for further
consideration.
SB 222 An Act relating to certain motor vehicles that are
required to yield to following traffic.
HCS CS SB 222 (FIN) was reported out of Committee
with "individual" recommendations and with fiscal
notes #1 by the Department of Transportation &
Public Facilities and #2 by the Department of
Public Safety. Also included with the bill was a
House Concurrent Resolution providing the needed
title change.
SB 278 An Act requiring a good faith effort to purchase
property before that property is taken through
eminent domain; and providing for an effective
date.
HCS CS SB 278 (FIN) was reported out of Committee
with "individual" recommendations and with fiscal
notes #1 by the Alaska Court System and #4 by the
Department of Transportation & Public Facilities.
CS FOR SENATE BILL NO. 222(FIN)
An Act relating to certain motor vehicles that are
required to yield to following traffic.
SARA WRIGHT, STAFF, SENATOR DAVE DONLEY, commented that the
legislation, through the cooperation of the Department of
Transportation & Public Facilities, would increase the
number of posted signs along some of Alaska's highways
informing motorists of the existing regulations of
prohibiting a vehicle from delaying traffic. The bill would
additionally increase the fine for those in violation of the
law from a $30 dollar fine to at least $100 dollars.
Current Alaska regulation prohibits traffic traveling at
less than the posted speed limit from delaying five or more
vehicles. The vehicle should pull over at the first
opportunity, however, many drivers are not aware of the law.
It is the intent of the legislation to make motorists more
conscious of the law and to lessen some of the summer
congestion on highways.
Ms. Wright advised that the Department of Transportation &
Public Facilities had committed to placing twenty (20) signs
in key areas on the Alaskan Highway. The signs would
indicate that it is unlawful to delay five or more vehicles.
The violation would be punishable by a fine. She added that
the bill would apply only to drivers delaying five or more
vehicles while traveling at five or more miles below the
posted speed limit.
Co-Chair Mulder referenced the House Finance Committee
substitute, #22-LS0611\R, Ford, /07/02, indicating that it
would address concerns voiced by the sponsor. (Copy on
File).
Co-Chair Mulder commented that the work draft included a
section, which would amend statutes, created several years
ago. In the draft, the fines have been doubled for
violation in work zones, suggesting that was a public safety
consideration. Co-Chair Mulder noted that there has been
concern that constructions zone signs remain in place when
there is no work happening in the area. He added that
Section 2 would include verbiage-doubling fines when there
are workers present at the site. The Department needs to
develop regulations for when the workers are not on the job
site; when the work is finished, the signs should be
removed.
Co-Chair Mulder MOVED to ADOPT the work draft for HCS CS SB
222 (FIN). There being NO OBJECTION, it was adopted.
Vice-Chair Bunde inquired about the additional twenty-eight
signs associated with the fiscal note.
Ms. Wright agreed that there is signage, however, the
Senator believes that there is not enough. The intent is to
place signs in key spots.
Representative Hudson asked how the bill would affect those
people driving below the speed limit, as many of the
highways do not have places to pull over. He suggested that
the legislation was "troublesome".
Co-Chair Mulder pointed out that there currently is
regulation in place between Anchorage and Soldotna, which is
already enforced, and that SB 222 would only place it into
law.
Representative Lancaster interjected that driving that
stretch of road is not as bad as it use to be, noting that
the highway has been upgraded.
Representative Croft recommended that the legislation should
read while driving "well below" the speed limit rather than
just "below". He asked why the legislation was not
providing a specific number.
Ms. Wright explained that language was part of existing
regulation, "driving below the posted speed limit".
Representative Harris questioned the unintended consequences
of the legislation and the committee substitute. He
suggested that there should be a penalty to the contractor
doing the roadwork if signs were left hanging. The signs
should act as a warning to drivers.
Co-Chair Mulder agreed that if and when the signs are up,
motorists should obey that indication. That could be
accomplished through regulation. He added that it would not
be fair to penalize motorists when the signs are not taken
down and the work is complete.
Vice-Chair Bunde pointed out that if a contractor was saving
money by not taking the signs down, they should be ticketed
and that no one should be subject to double fines.
Representative Croft commented that laws should not be
written that are technically difficult to comply with. For
people interested in obeying the law would be in an
impossible dilemma. He referenced the current regulation,
suggesting that verbiage be removed. He recommended that
the language indicate a "safe" zone for compliance.
Representative Davies suggested that the speed limit
reference be removed, leaving language that if five or more
cars are held up, then the front driver should pull over.
Vice-Chair Bunde thought that the basic speed law in Alaska
supercedes all other speed limits.
Representative Hudson asked if it was intended to target the
driver causing the traffic back up. He recommended changing
language on Page 1, Lines 8 & 9. He advised that it should
be differentiated who would be responsible for paying the
fees.
Co-Chair Williams understood that it would be the first car
in the backed-up line.
Ms. Wright advised that the drafter indicated that it would
be "pointless" to place such a stipulation in the bill.
Representative Hudson pointed out that the legislation would
be creating law.
Representative Lancaster noted that signs on the Kenai
Peninsula do not indicate a speed limit.
LIEUTENANT JULIA GRIMES, (TESTIFIED VIA TELECONFRENCE),
ALASKA STATE TROOPERS, DEPARTMENT OF PUBLIC SAFETY,
ANCHORAGE, noted that the Department did support Section 1
of the House Finance committee substitute. She added that
in new Section 2, it would be unclear to the public to
determine if work was complete or not. She thought that it
could be complex trying to prove in court. There needs to
be discretion when working in a construction zone and that
language must be clear.
Vice-Chair Bunde pointed out that if someone exceeds the
speed limit in a construction zone, they would be subject to
a citation. The referenced language addresses whether that
person would receive a double fine.
Lt. Grimes acknowledged that in current statute, the reduced
speed limit was ten to twenty miles an hour in a work zone.
If the lower limit was exceeded, the person could be subject
to a fine.
DENNIS POSHARD, LEGISLATIVE LIAISON, DEPARTMENT OF
TRANSPORTATION AND PUBLIC FACILITIES, noted that the
Department of Transportation & Public Facilities has been
supportive of the legislation throughout the process. He
referenced the new proposed new section. When the work zone
provisions were initially proposed, the double fine
provisions created concern for the workers. There is
additionally concern for the safety of the traveling public.
Another issue is whether the signs are up or down. The
State does have regulations and contract provisions in place
that require contractors to take signs down more often to
provide a more consistent application. The public should
not be the ones to determine if there are workers present.
DON ETHERIDGE, AFL-CIO LABOR UNION, JUNEAU, noted that the
Union does not support Section 2, but does support Section
1. Sometimes, construction crews work late at night, and
moving the signage could prove to be fatal for some workers
and drivers who have no incentive to slow down. He agreed
that there is concern regarding the traveling public.
Representative Davies MOVED to delete language on Page 1,
Lines 5 & 6: "below the posted speed limit at any time".
Representative Croft OBJECTED.
Representative Davies commented that there is an issue about
what the safe speed is in the State of Alaska. There are
times when the posted speed limit is unsafe. There are also
times when the posted speed limit is perfectly safe. The
legislation does not refer to the speed limit but rather
addresses a "matter of politeness" regarding when five or
more cars are backed behind you.
Representative Croft addressed his objection to Amendment 1
both on legal and practical grounds. He stated that it
would be inappropriate for the Legislature to punish the
person complying with the law and then encourage disobeying
the law. He thought that the amendment would cause
prosecutions to double. He stated that laws should not be
written like that. Representative Croft claimed that the
amendment would take the State backward.
Co-Chair Mulder responded that in the real world, a trooper
would not issue a citation when the car is going at the
speed limit with five cars following behind. He might pull
the driver over and ask that he let traffic pass by. He
noted that he had confidence in the State Trooper's ability
to determine the consideration fairly. He added that some
people do not read signs.
Ms. Wright noted that section had been left open in the
initial drafting and that seemed to satisfy the public. She
pointed out that the sponsor did not support the amendment.
Vice-Chair Bunde suggested that the amendment would
encourage speeders. He agreed that the posted speed limit
should be included in issuance of a ticket, however, the
driver needs to use common sense when to pull over.
Ms. Wright acknowledged that perhaps she did not understand
the amendment.
Co-Chair Williams explained what the amendment would do.
Ms. Wright suggested that the amendment could encourage
speeders.
A roll call vote was taken on the motion to adopt Amendment
#1.
IN FAVOR: Davies, Harris, Hudson, Lancaster, Mulder,
Williams
OPPOSED: Whitaker, Bunde, Croft, Foster
Representative Moses was not present for the vote.
The MOTION PASSED (6-4).
Representative Croft MOVED to ADOPT Amendment 2, Page 1,
Line 6, after "roadway", inserting the language "outside of
an urban area". There being NO OBJECTION, Amendment 2 was
adopted.
Co-Chair Mulder MOVED to report HCS CS SB 222 (FIN) out of
Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCS CS SB 222(FIN) was reported out of Committee with
"individual" recommendations and with fiscal notes #1 by the
Department of Transportation & Public Facilities and #2 by
the Department of Public Safety. Also included with passage
of the bill was a House Concurrent Resolution providing for
the needed title change.
CS FOR SENATE BILL NO. 278(FIN)
An Act requiring a good faith effort to purchase
property before that property is taken through eminent
domain; and providing for an effective date.
KIM OGNISTY, STAFF, SENATOR JOHN TOGERSON, explained that SB
278 would provide and bring fairness and expediency to
government and other condemning authorities that require the
acquisition of private lands for public uses. The bill does
not attempt to remove the authority of the State to take
land by eminent domain. It would add a provision to ensure
a "reasonable and diligent effort" made by government
agencies to negotiate with property owners before land is
claimed under eminent domain.
She added that it would be reasonable to require a
government entity to make a reasonable and diligent effort
to negotiate with the landowner on a value and price prior
to taking the property. Someone that does not have the
financial ability or an understanding of the legal process
could be overwhelmed with the bureaucracy and be at a
disadvantage in trying to protect their property rights. By
requiring a "reasonable and diligent effort" to justify the
State's authority of eminent domain, the landowner would
have the benefit of full disclosure of information used by
the State to determine the public purpose and legitimate
value before property could be taken.
Representative Davies voiced concern that the legislation
could drive up costs by establishing a new set of court
standards.
Ms. Ognisty acknowledged that those concerns had been
expressed previously.
Representative Harris questioned if the legislation would
prolong the time that a construction projection goes on.
Ms. Ognisty indicated that the Department of Transportation
& Public Facilities had previously noted that concern. It
is Senator Torgerson's intent that if the situation does
occur with private landholders, then those individuals must
be dealt with fairly during the process that their land is
being condemned. She added that then both sides would be
coming from equal ground.
Representative Harris understood that in the process, some
of people would not want to sell their land or would want
more money than being awarded. It will not always be a
"willing to sell, willing to buy situation".
Ms. Ognisty explained that most situations do not reach the
point addressed through the legislation.
Co-Chair Williams noted that the committee substitute
basically addressed technical changes in the legislation,
version #22-LS1399\T, Kurtz, 5/8/02. (Copy on File).
Representative Harris MOVED to ADOPT committee substitute
version #22-LS1399\T, Kurtz, 5/8/02, as the version of the
bill before the Committee. There being NO OBJECTION, the
committee was substitute was adopted.
TAPE HFC 02 - 105, Side B
DENNIS POSHARD, LEGISLATIVE LIAISON, DEPARTMENT OF
TRANSPORTATION AND PUBLIC FACILITIES, noted that because of
the work done in the House Judiciary Committee, the proposed
legislation is better. However, the Department objects to
the bill. The basic issue is that the current process is
very fair and there is no need to change it. He pointed out
that 93% of the State's properties are acquired through
negotiation and only 7% of the acquired parcels are through
condemnation. That is an excellent record compared to other
states.
The Alaska Constitution requires that the State justly
compensate property owners for the fair market price of
their property value. Occasionally, there is a dispute by
the property owners over the value as different appraisers
come up with different values. The current system does well
working that out.
Mr. Poshard added that in addition to being a fair process,
it is also a mature process governed by the Constitution and
federal law and years of litigation in case law. Changes to
the statute would invite expensive litigation, which would
likely delay projects. Interpretation of the new standard
would take years to sort out. The Department's concern is
that an unhappy property owner could be given a "tool" to
stop or delay the project to attempt to get more money out
of the State. The consequences of the bill would not only
affect the Department of Transportation & Public Facilities
but also anyone given eminent domain authority under State
statute. The bill would affect lessees under the Alaska
Right of Way Leasing Act, those in charge of oil and gas
pipelines, public utilities, all municipalities, and the
Alaska Railroad Corporation. The Department knows that many
of those agencies have not come forward to address their
concerns.
Mr. Poshard added that in addition, the up to 10% penalty
listed in Section 4 would be non-participating general fund
dollars. The federal government only participates in just
compensation to the property owner. They do not participate
in the payment of penalty or any type of interest that goes
to the property owner. Those funds would be dispersed out
of the State's general fund.
Mr. Poshard acknowledged that the Department understands the
concerns indicated by the supporters of the bill and is
attempting to alleviate them. He referenced memos in the
member's packets that address that. Mr. Poshard reiterated
that the Department does oppose the proposed legislation.
Co-Chair Williams inquired how many cases go through the
litigation process.
Mr. Poshard reiterated that 93% of the properties are
acquired through negotiation and 7% are acquired through
condemnation. The litigation is usually over that 7%
amount. There are some cases in which the property owner
objects to the "taking" altogether. In the current legal
standard, they must determine whether or not the Department
has the authority and the necessity to take that property.
The Department has the authority based upon State statute.
Regarding the necessity, the Department usually has been
though an environmental and public involvement process,
which usually is an easy standard to meet. He reiterated
that the process is a fair process and sometimes the dollar
value requires litigation.
MICHAEL DOWNING, DIRECTOR/CHIEF ENGINEER, DIVISION OF
STATEWIDE DESIGN & ENGINEERING SERVICES, DEPARTMENT OF
TRANSPORTATION & PUBLIC FACILITIES, stressed that the value
litigation is essentially 7%. One concern with the bill is
that it will encourage further litigation.
Co-Chair Williams questioned if funding came from the
general fund.
Ms. Poshard advised that the money used to pay the
attorney's fee or the property owner award did not come out
of the general fund. The amount from the general fund is
the charges of the additional penalty resulting from Section
4 of the bill. Currently, the award to the property owner
is covered through project funds, which are partly federal
and partly State matched funds. However, the penalty does
have to come out of the participating general fund pot.
Co-Chair Williams asked for further information regarding
the situation with Sealaska and Phillip Evans.
Mr. Downing acknowledged that situation has precipitated the
concern. He stated that he and the Department's
Commissioner would be making decisions regarding the appeal
of the master determination of the property value. He noted
that rarely occurs. Sealaska's biggest concern is that they
do not want to see a reduction in the acreage that they
hold. Sealaska is only interested in an exchange of
properties. Mr. Downing advised that it is important to
determine ways to expedite the project. He added that
passage of the bill would not encourage such action.
Co-Chair Williams inquired about the potential delay in the
railroad and/or pipeline projects.
Mr. Poshard explained that the concern for delay rests in
language in Sections 1, 2 & 3 of the bill. Section 1
provides the prerequisites, which clarifies that before a
property can be taken, it should appear that the Department
has made a reasonable effort. Section 2 of the bill
attempts to put steps on that process, however, there is
language in that version that requires giving the property
owner a reasonable time frame to make a reasonable counter
offer. The concern for the Department is that language
invites litigation from a property owner who is unhappy with
the amount of the offer made. They may use that to delay
the project. He reiterated that the language invites
litigation and has the potential to cause more delays on
projects.
Vice-Chair Bunde questioned whether any State agency would
be concerned about "reasonable efforts". He suggested that
even if the legislation did invite litigation, would it tend
to not error on the side of the State.
Mr. Poshard agreed. He added that current law requires the
Department to offer a fair market value from the beginning.
He emphasized that the State currently is 'reasonable' and
the Department does not see the need for the additional
language, which would create potential for more litigation.
Mr. Downing interjected that the concern regards what should
be issued for the staff if the bill should pass. The staff
would simply need to comply with sections (b) & (c). Right
of way is typically on the critical path to the development
of a project. The delay to right of way does amount to a
delay of a project. He added that the cumulative effect of
all the legislation over the past few years has gotten
Alaska to a point where it takes a long time to develop any
project. The proposed bill is not necessary and needs to be
considered in relationship to all the other steps that have
been added.
Representative Hudson asked about the new elements contained
in Section 2. He understood that the legislation would
require the Department to advise the property owner to
obtain an appraisal and then subject to that, the Department
could either buy the land or make a counter offer.
Mr. Downing responded that each property owner is unique.
The new language would require that each step could delay
the process.
Co-Chair Williams stated that CS SB 278 (FIN) would be HELD
in Committee for further consideration.
HOUSE BILL NO. 532
An Act relating to the powers and duties of the
Department of Environmental Conservation, to barbers,
hairdressers, estheticians, manicurists, tattooers,
permanent cosmetic colorists, body piercers, and their
establishments, to the licensure of child care
facilities, to food establishments, to cosmetics, to
tourist camps, trailer camps, motor courts, and motels,
to restrooms, to smoking in public facilities, to
public health nuisances, to sanitation and sanitary
practices, to camps and canneries, to schools, to soft
drink establishments, to beer and wine dispensaries, to
other establishments, and to commercially compressed
air; and providing for an effective date.
Co-Chair Williams explained that HB 532 had been introduced
to pare back some responsibilities of the Department of
Environmental Conservation. Under the legislation, the
Department would no longer have responsibility to inspect
restaurants, food markets, temporary food service (fairs),
cosmetology businesses, pool/spas, washeterias, public
toilets, and overnight accommodations.
Co-Chair Williams advised that the legislation would remove
the State's responsibility for oversight of those items, and
would then leave it to local governments whether to do the
functions. Currently, the State provides no food
inspections in Anchorage, as the Municipality has their own
program. Municipalities should work together to come up
with a program that fits individual needs.
Representative Davies questioned why this bill had not been
submitted earlier.
Co-Chair Williams responded that he had attempted that in
subcommittee and had met opposition. He reminded members
that there is now a serious budget shortfall and that
current inspections are not occurring often enough.
Representative Davies commented that there could not be
adequate testimony heard from affected municipalities at
such a late time in the session.
Co-Chair Williams acknowledged there could not be and that
the bill would not be moved from committee at present time,
indicating that there would be a public hearing within the
next few days.
Representative Harris inquired if the intent of the
legislation was to transfer the Department of Environmental
Conservation's oversight to the local communities. He
questioned what federal funding would be lost in that
transfer.
Co-Chair Williams responded that schools and canneries would
be subject to the loss of federal funds.
Representative Harris requested that the Committee hear
testimony from the Department of Environmental Conservation
before the legislation moved forward. He pointed out that
the legislation could have dramatic affects on food service.
Co-Chair Williams agreed. He observed that to do an
adequate inspection job, it would cost the State between $8
and $9 million general fund dollars and the current level of
funding is around $1 million dollars. He maintained that
there is enough incentive for the private industry to assure
that services were covered.
Representative Lancaster recommended that the issue be
reviewed and that the legislation be considered during the
next year.
Co-Chair Williams emphasized the lack of funding. He
maintained that local communities should take care of these
concerns. He questioned where the appropriate funding would
come from.
Representative Hudson acknowledged the increased fees. He
recommended that the Legislature proceed cautiously so not
to abrogate the constitutional responsibility.
Co-Chair Williams pointed out that seafood processing would
continue to be funded by the Department. He observed that
schools and senior facilities receive federal funds and must
be inspected. He maintained that $1.4 million dollars would
be saved.
Representative Davies stressed that $1.2 million dollars of
that budget is from program receipts and that the remaining
would be general funds. He questioned eliminating food
inspection in the State of Alaska, which will seriously
impact schools and then save only $200 thousand dollars. He
stressed that this is not an issue that will close the
fiscal gap or save money. The Department is currently doing
an "okay" job of providing inspections and on the average,
there is an inspection once a year.
The Department of Environmental Conservation is attempting
to inspect some restaurants twice a year when there is an
indicated need. He thought that it was fair to charge
restaurants more because all restaurants profit from having
a level playing field. Restaurants depend on tourism and
passage of the legislation would threaten the tourist
industry.
Representative J. Davies reiterated his question of why this
issue had not been introduced earlier. He maintained that
the current program is okay and stressed that fees are
currently paying for these programs.
Co-Chair Williams asserted that the State is charging for
services that are not being supported. He maintained that
communities could better perform those services.
JANICE ADAIR, (TESTIFIED VIA TELECONFERENCE), DIRECTOR,
DIVISION OF ENVIRONMENTAL HEALTH, DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, ANCHORAGE, referred to Section
7, which prohibits the Department and the State from any way
regulating food establishments and wholesale establishments.
She referenced Section 21, which is part of the statutory
repeal of AS 44.46.0205, the Department's authority to
establish standards and sanitation for a number of
facilities such as childcare centers, body piercing shops
and tourist accommodations. The rest of the bill is just
technical amendments to affect those changes.
Ms. Adair explained that the bill would mean that the State
would have no authority to recall foods that are not safe to
serve the public, and would be unable to close down any
retail establishments that are suspected of causing illness.
She added that there would be no standards for service of
food at public schools, senior citizen facilities, childcare
centers, grocery stores and fairs or other special events.
Millions of dollars that Alaska receives from the federal
government for school lunches, breakfasts and senior citizen
meals would be jeopardized.
Ms. Adair continued, there would be no standard of care for
sanitization for childcare facilities, tattoo and body
piercing shops and public schools. The State would have no
authority to assure chlorination of public pools. The
recently passed legislation regulating tattooing would not
be implemented.
Ms. Adair maintained that the current program is not new,
and that it is not failing. The record is improving. The
Department is trying to prioritize their work, which is
supported by industry. Fees were increased at the direction
of the Legislature and non-profits are not charged a fee.
She added that the Division works with operators before they
open their business to learn how to properly handle food.
There are legal impediments to local governments assuming
the service. Local governments cannot work with the federal
government on food recalls or bio-terrorism. She emphasized
that the statutes and Title 29 would have to be changed;
cities and boroughs would have to change their charters.
Ms. Adair observed the difficulty in filling positions.
Inspectors are trained within the Department. Many local
governments only have a hand-full of establishments and do
not have the economy-of-scale to develop a program. She
pointed out the outbreak in Canada that resulted in sick
tourists in Fairbanks.
Ms. Adair acknowledged that Anchorage does have a good
program, but emphasized that the system is evolving and that
they do have outbreaks. She stressed that the Department
works to prevent outbreaks. If the proposed legislation
passes, the safety net will be gone. That safety net will
affect people throughout the State. She pointed out that
the National Restaurant Association estimates that an
outbreak costs a business around $75 thousand dollars. The
last one in Kenai closed that business.
TAPE HFC 02 - 106, Side A
Co-Chair Williams asked if the qualifications for a food
inspector could be lowered.
Ms. Adair responded that food inspectors must understand how
a bacterium works in an environment, how it can be spread
through food, and how humans help that spread. Food
inspectors usually have a degree in biology, chemistry or
microbiology. The Department does have an 'in-house'
training program. She stressed that the standards cannot be
lowered because it is critically important that there is
someone well trained going into the facilities.
Co-Chair Williams questioned if a one-year training was
sufficient.
Representative Davies asked if the State were to switch to
the local governments providing the inspections, would they
need to have the State standards in place in order to meet
the federal requirements.
Ms. Adair affirmed that local governments would have to
follow State standards and the standards would have to be
uniform.
Representative Lancaster questioned if the local governments
could hire the current State staff.
Ms. Adair thought that it would be unlikely that local
governments would be ready to hire laid off employees by
July 1, 2002.
In response to a question by Representative Hudson, Ms.
Adair explained that the school lunch program and senior
nutrition programs have a federal requirement for
inspections and that the programs are in compliance with the
safety statutes. Intrastate food safety issues are at the
discretion of each individual state.
KEVIN RITCHIE, ALASKA MUNICIPAL LEAGUE, JUNEAU, commented
that there are only a few boroughs that could administer and
assume these programs. He addressed the scale of who could
provide the inspections the best. The Legislature would
have to establish who would pay; essentially the Legislature
is the assembly for the unorganized borough.
LYNN FREEMAN, EXECUTIVE DIRECTOR, ALASKA COMMISSION ON
AGING, voiced concern with HB 532, specifically Section 7.
If budget reduction occurs, there will be no food safety
oversight anywhere in Alaska outside of the Municipality of
Anchorage. The federal government does not have nor will it
establish a food safety and sanitation inspection program
for State's without their own program.
Ms. Freeman claimed that the budget cut would jeopardize the
loss of approximately $4 million dollars spent in Alaska to
fund senior nutrition programs. Federal dollars cannot be
expended for statewide senior meal programs unless the food
is prepared in a commercial kitchen that has been approved
by the State or local agency responsible for food safety.
Ms. Freeman urged that HB 532 does not pass out of
Committee.
Co-Chair Williams stated that HB 532 would be HELD in
Committee for further consideration.
CS FOR SENATE BILL NO. 278(FIN)
An Act requiring a good faith effort to purchase
property before that property is taken through eminent
domain; and providing for an effective date.
RON WOLFE, SEALASKA CORPORATE FORESTER, SEALASKA
CORPORATION, JUNEAU, spoke in support of the proposed
legislation. The bill would allow the State to make a
diligent effort to negotiate the purchase of real property
from a private landowner or make a similar effort to make an
exchange of property before condemning it. Sealaska
Corporation has faced a threat of eminent domain a few times
over the past several years in respect to public work
projects.
Mr. Wolfe claimed that those actions resulted in protracted
lengthy fights for Sealaska rights. They were resolved with
a great deal of difficulty. He added that the process
usually is hostile because of the rules and the lack of a
level playing field. SB 278 could remedy that process.
Mr. Wolfe advised that Sealaska believes that by
establishing the requirement in law, it would provide
private landowners insurance that the eminent domain process
will be fair. The result would be less litigation if those
individuals were treated fairly. The efforts to negotiate
with an individual in a reasonable manner would make it less
likely to go to court.
Mr. Wolfe noted that earlier versions of the bill had been
amended so that the delay process would not occur. The
current provisions in the bill provide for a 10% surcharge
to landowners above the fair market value of the property in
the event that the condemnor has found that to be unfair.
Vice-Chair Bunde asked if there was anything in the
legislation that could encourage the delay of projects.
Mr. Wolfe responded that the earlier versions had been
amended to address that there are not delays in the
projects. He noted that Sealaska's attorney could better
address that idea.
Mr. Wolfe pointed out another provision within the bill,
which would advise private landowners that they could get
their own appraiser. He thought that would be a good idea
especially for the unsophisticated owners. He added that
could add to leveling the playing field.
JON TILLINGHAST, ATTORNEY, SEALASKA CORPORATION, JUNEAU,
stated that the bill before the committee would not delay
the acquisition of any property under an eminent domain
proceeding. He added that the Department of Transportation
& Public Facilities had acknowledged that to the House
Judiciary Committee. The bill does not have a subjection or
ambiguous standard that the Department or the Courts would
have trouble interpreting. He added that Mr. Poshard
assured the House Judiciary Committee that the proposed
version took care of those concerns. Mr. Tillinghast stated
that they were disappointed seeing those same concerns
currently on the table.
The idea of having a statute, which requires the condemning
authority to be reasonable and diligent, is not unique. It
is a recommended provision of the model domain code. If the
government comes first to the landowner as an equal to
purchase the property, that immediately creates a better
atmosphere than the government coming to the same person
stating that they are the government and are here to take
the property.
Mr. Tillinghast noted that at least 23 states have adopted
laws similar to SB 278, however, there is a big difference
between the laws of the sister states and the bill before
the Committee. Under such statutes, it is generally held
that a bona fide attempt to purchase the land by agreement
between the parties and a failure to do so is a condition
precedence to eminent domain proceedings. Failure to comply
with that requirement renders any subsequent proceedings
void. He stated that the land owner can not dismiss or
delay an eminent domain proceeding by going to Court and
that is the rule which the sister state's have. That is the
rule that went to the House Judiciary Committee. The
Department of Transportation & Public Facilities expressed
concern that providing additional basis for delaying or
stopping their acquiring of the property could delay their
acquiring of a right of way.
Sealaska agreed to a "watering down of the bill", which
removed that aspect. Under the proposed legislation before
the House Finance Committee, it would be legally impossible
to stop, halt or in any manner delay the acquisition of any
property through any authority. That remedy was stripped
from the bill; it had been contained in Section 4 of the
prior versions of the bill.
Vice-Chair Bunde asked if the person's whose property was
being condemned could delay that action.
Mr. Tillinghast replied that person's property could no
longer delay or hinder the State's acquisition of a piece of
property of eminent domain under the proposed bill.
Instead, the only remedy that the landowner has is to
convince the Court to add a 10% surcharge onto the ultimate
eminent domain award.
Representative Whitaker questioned the delay issue.
Mr. Tillinghast stressed that a case could not be made and
that the Department of Transportation & Public Facilities
has acknowledged that. He commented that he was surprised
to see the issue before the Committee and stressed that the
sole remedy would be the 10% surcharge.
Representative Whitaker asked if the procedure would change
as a result of the bill.
Mr. Tillinghast interjected that it would because under
present law, if the State is not reasonable and diligent
with you, the Court cannot add the 10% surcharge on a
condemnation award. Through the bill, they would be able to
do that and it would not change procedure but does change
the substance.
Representative Whitaker asked if the bill would change the
procedure.
Mr. Tillinghast replied that the bill has not changed any
procedure.
Representative Croft questioned if there had been good case
effort and if there was any difference between "reasonable,
diligent and good faith effort" in case law.
Mr. Tillinghast commented that some states do use the
language "good faith" and some use "reasonable and
diligent". He claimed that "good faith" was the most
subjective of the standards on the menu. "Reasonable and
diligent" are more objective standards. He pointed out that
did reflect the Department's second concern and which made
it to the House Judiciary Committee. They were concerned
that "reasonable and diligent" was too subjective. To
address that, Section 2 was created. Defining "reasonable
and diligent" removed the subjectivity from the bill.
Representative Foster commented that his district was mostly
Native land and some of those lands are joined to State
land. He asked how Sealaska felt about that.
Mr. Tillinghast responded that would depend on how they
define the problem. A State agency should focus on land
exchanges as opposed to condemnation. A statute is a safer
cure than an unenforceable and formal promise from an
administrative agency. The concern is not just that
Sealaska wants to focus on land exchanges rather than
through eminent domain. Sealaska as a private landowner is
interested in leveling the playing field between the
government and the private sector.
Representative Foster referenced back up material found in
his packet. He asked an estimate of the amount received
versus a fair amount for the land.
Mr. Wolfe interjected that Sealaska has never sold the
Alaska Native Claims Settlement Act (ANCSA) land. A
transaction that occurred in the last ten years was a land
exchange. From a practical standpoint, the provision for a
land exchange is not one that the Department of
Transportation & Public Facilities officials readily embrace
because they are complex and complicated. The preference of
bureaucrats is to go to a fair marketplace. It took effort
to convince the Department to go to a land exchange process
in the Klawok Airport. Sealaska believes that the provision
to a state land exchange as an alternative would level the
playing field. The corporate lands were fought long and
hard for by the Native people and they do not want them
taken away. The condemning agency is the Department of
Transportation & Public Facilities. The land owning agency
is the Department of Natural Resources. He acknowledged
that these are complex and difficult issues.
Representative Croft asked to hear from the Department of
Law on the delay issue. He noted that they were on line.
In response to a question by Representative Foster, Mr.
Wolfe explained that through the highway realignment and
upgrade, additional property was purchased and deeded to
Sealaska through an exchange.
Representative Foster pointed out that a lot of the Native
lands have airports. The only lands to extend an airport
would be the Native Corporation. He thought that there was
a gray area.
Mr. Tillinghast responded that the only effect that the
proposed legislation would have on that situation would be
if the Department went to the Native Corporation and did not
behave reasonably with them.
DENNIS WHEELER, (TESTIFIED VIA TELECONFERENCE), DEPUTY
MUNICIPAL ATTORNY, MUNICIPALITY OF ANCHORAGE, explained that
his primary work rests with eminent domain proceedings. He
testified against passage of the proposed legislation. He
noted that there could be considerations for municipalities
that had not yet been brought before the Committee.
Primarily, the Municipality of Anchorage already has codes
on the books that indicate how to pay and gauge an eminent
domain. He noted that they are required to make a good
faith effort to follow federal guidelines in respect to
appraising public property and the use of fair market value.
That is important in the proposed situation, given the
previous testimony by Sealaska that there are two different
standards used in the State to determine what is the proper
method or efforts for acquiring property. The Municipality
of Anchorage uses the good faith subjective standard. There
seems to be testimony that reasonable and diligent effort is
more objective by State statute. That would mean that they
would face fine and municipal codes and be in violation of
State law. It would give property owners two bites and
would create extra layers of work and documentation for the
staff.
Mr. Wheeler pointed out that the bill makes for an
"invitation for litigation". The current civil role
regarding eminent domain requires payment for successful
council hired by property owners. There is no disincentive
and every attorney would attempt to get the 10% fee. In
addition, it is the position that the litigation would occur
at the front end. Unless there is a fantastic legislative
record, which clearly indicates across the board that
everyone agrees, the property owners cannot come back and
raise the issue of reasonableness. The attorneys would have
to raise that issue.
Mr. Wheeler addressed another issue with respect to
appraisals. The current bill suggests that if the property
is worth more than $15 thousand dollars, then the property
owner can get their own appraisal. That is not done in all
cases and that would drive up the costs and make for further
delays. He commented that there needs to be some sort of
limitation to avoid costs associated with appraisals.
Mr. Wheeler added that the process itself punishes bad faith
because the attorneys that represent the property owners
bring it to the Courts attention. At every level, those
bodies are not shy about punishing the municipalities for
acting in "bad faith".
Vice-Chair Bunde understood that the proposed legislation
would only affect the State condemning property by eminent
domain. He asked how it would affect the Municipality of
Anchorage.
Mr. Wheeler advised that the Municipality does condemn land
and does that through complying with State Statutes and
through Title 9.
JIM CANTOR, (TESTIFIED VIA TELECONFERENCE), ASSISTANT
ATTORNEY GENERAL, DEPARTMENT OF LAW, testified against the
proposed legislation. He noted that he had testified
against the previous versions of the bill in the House
Judiciary Committee. He reiterated comments on the project
delay. The problem deals with the prerequisite in Section
1, "before property can be taken". The former version
suffered from the same problem. The version is ripe for
extended litigation. He observed that litigation occurs
over high priced property.
TAPE HFC 02 - 106, Side B
Mr. Cantor noted that when dealing with the higher priced
property, counsel has incentive to litigate. He discussed
the process. For the higher value parcel (over $200
thousand dollars), the State must get two appraisals and
there is a third Department review. The Department of
Transportation and Public Facilities offers the highest
appraisal. Other appraisal updates occur just before
litigation. The amount of money offered is deposited into
the court. The landowners can withdraw that money and have
full access to those funds. Following that, the case moves
to a master appointed by the court and a recommendation is
then made. If the parties are not satisfied, they can go to
Court.
Mr. Cantor summarized three areas of concern with the
legislation. He asked what a "reasonable" reason would be
to turn down the landowner's offer with a 10% penalty at the
end. He added what could be a comparable parcel to the
developed one. He noted that if the Department of
Transportation and Public Facilities condemns someone else's
land that too would have legal problems. Whose lands would
the State be dealing with since the Department of Natural
Resources holds the land not the Department of
Transportation. Additionally, what would be classified as a
reasonable period of time. He recommended that the
legislation get further clarification.
Mr. Downing clarified that it was the Department's
preference that the legislation not pass. He noted that if
the bill does pass, they would like the opportunity to
discuss these amendments.
Mr. Downing submitted documentation from the Right of Way
Manual. In that text, the Department provides guidance to
the staff in how to proceed on those properties. He added
that threats of condemnation are not allowed.
DICK MYLIUS, (TESTIFIED VIA TELECONFERENCE), DIVISON OF
MINING, LAND AND WATER, DEPARTMENT OF NATURAL RESOURCES,
ANCHORAGE, commented that the Department of Natural
Resources is also concerned with Section 2(b). He observed
that the provision would draw the Department of Natural
Resources (DNR) into the Department of Transportation's
(DOT) land discussions. Most property landowners seeking
exchanges would be looking at land managed by the Department
of Natural Resources and not the Department of
Transportation and Public Facilities.
He added that if DNR land were involved, DNR would need to
conduct the exchange, as DOT has no statutory authority to
do that with State land. Mr. Mylius concluded that
exchanges for State land under, State law, are designed for
large-scale parcels and would not be efficient for smaller
scale parcels. He noted that the Department of Natural
Resources has recently completed several small land
exchanges. Each of those exchanges took over two years to
accomplish and the staff costs were between $40,000 and
$60,000 dollars for each exchange.
MICHAEL LOHNAN, (TESTIFIED VIA TELECONFERENCE), WASILLA,
spoke to concerns with his personal property located in
Wasilla. He explained that the entrance of his building is
25 feet from the property line on the road. The State has
declared that they want to take 10 feet for an easement,
which would leave 15 feet. That would land lock the 15 feet
of parking. Mr. Lohnan stressed that landowners need to
have someplace to go to negotiate other than through an
attorney.
WENDY LINDSKOOG, ALASKA RAILROAD CORPORATION (ARRC)
testified that the Alaska Railroad currently, has
condemnation powers. To exercise that power, the Railroad
must first seek approval from the Governor. She felt that
the legislation would add costs to future projects and
shared concerns voiced by the Department of Transportation.
Representative Foster MOVED to report HCS CS SB 278 (JUD)
out of Committee with individual recommendations and with
the accompanying fiscal notes. There being NO OBJECTION, it
was so ordered.
HCS CS SB 278 (JUD) was reported out of Committee with
"individual" recommendations and with fiscal notes #1 by the
Alaska Court System and #4 by Department of Transportation &
Public Facilities.
ADJOURNMENT
The meeting was adjourned at 5:05 P.M.
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