CSHB 230(STA)-POLITICAL SIGNS ON PRIVATE PROPERTY    CHAIR GARY STEVENS announced CSHB 230(STA) to be up for consideration. The bill relates to political signs on private property. He stated he did not intend to move the bill that day. He asked Mr. Larkin to step forward and introduce the bill. TODD LARKIN, staff to Representative Jim Holm, described the legislation as follows: HB 230, we brought it forward because we thought it was an issue of free speech that the state had overlooked in its zeal to keep the federal government happy and comply with what it thought were federal requirements. We've talked to the Federal Highway Administration and we found that we didn't necessarily have to make all the restrictions we were making. MR. LARKIN read the following from the sponsor statement: The ability of citizens to express political opinion, even to advocate for the same, is a fundamental right. This basic right becomes even more pronounced when the expression is made on one's own private property. Currently, state law prohibits the posting of campaign or political signs within road view or 660 feet (whichever is greater). This applies to federally funded roads and state roads. The restriction includes private property. If you or I were to erect a "NO WAR IN IRAQ" or "SUPPORT THE TROOPS" sign today within the distance limits, we would be in violation of state law. The reasoning for this restriction has its genesis in the Federal Highway Beautification Act of '65. It has been interpreted to say that without a sign restriction, political or otherwise, Alaska may lose federal highway funds for being out of compliance. Correspondence with the Federal Highway Administration on this subject shows this to be untrue. Similar restrictions, contained in city/county ordinance or state law, have been struck down in three out of four state supreme courts: Washington, Oregon, Colorado, and California. A U.S. district court in Missouri found in '93 that very few restrictions could be placed on signage erected on private property. The U.S. Supreme court heard a case in '94 concerning private property and upheld the rights of the property owner. Further, there is a landslide of peripheral case law relating to this subject. If AS 19.25.105 stands as currently written, the state of Alaska is in danger of litigation and certain defeat. We have a country, which is based on the premise that all powers reside in the people and that the government derives its authority from the consent of the governed. Hence, we the people have the right to advocate or choose who governs us. This right should have little or no restriction. This law needs to be amended, first to save the time and expense to the individual citizen who must challenge the current restriction of free speech, and second to save the state the cost of defense plus the likely legal fees awarded to a victorious citizen. MR. LARKIN stated that the sponsor had no objection to the two proposed amendments. Federal highways recommended the amendment to tightly define the intent of the statement "political noncommercial sign" so it wouldn't allow indirect commercial advertising. Department of Transportation asked that it be clear in statute that they retain all authority in rights of way and department easements. The bill covers the land from the edge of that line out to 660 feet. SENATOR COWDERY asked if the state is currently out of compliance and has any federal funding been lost. MR. LARKIN replied the state has not lost any funding. The one state that did lose funding had the money refunded once they became compliant and it wasn't related to this issue. SENATOR COWDERY asked if there is a size limitation and used an Acme fence sign as an example. MR. LARKIN replied he would defer to the Department of Transportation and Public Facilities (DOT/PF), but current statutes deal with that type of example. This issue is something new. CHAIR GARY STEVENS noted Nona Wilson from DOT/PF was present to answer questions. SENATOR COWDERY remarked DOT/PF expended little enforcement effort in the last governor's election, but there have always been games associated with the placement of political signs. He asked what provisions there would be for enforcement and would four small grouped signs be the same as one large sign. MR. LARKIN reported that one of the first restrictions they set on the new exception to the 660-foot rule is addressed on page 2, line 15-16. It says, "individual or conjoined signs do not exceed 32 square feet total per side;" SENATOR COWDERY announced he places his political signs on each of his driveways. One sign is placed so that traffic flowing out of Anchorage can view it and the other is placed to accommodate incoming traffic. He asked if this would be illegal since he owns two lots or is it a grey area. MR. LARKIN called political signs a super protected form of speech. This legislation makes it clear that you may not be on the land that DOT/FP controls, but if you're on your private property from the line where DOT/FP control stops out to the 660 foot beautification margin, his reading and the intent is that the signs are legal. SENATOR COWDERY then said he would like to have a site identified. CHAIR GARY STEVENS labeled the proposed amendment \U.3, amendment number 1 and the proposed amendment \U.1, amendment number 2 then asked Mr. Larkin to explain amendment number 1. 23-LS0780\U.3 Utermohle 10/7/04 A M E N D M E N T 1 OFFERED IN THE SENATE TO: CSHB 230(STA) Page 2, line 18, following "hazard;": Insert "(C) the signs are located outside of  department easements;" Page 2, line 19: Delete "(C)" Insert "(D)" 23-LS0780\U.1 Utermohle 10/7/04 A M E N D M E N T 2 OFFERED IN THE SENATE TO: CSHB 230(STA) Page 1, following line 2: Insert a new bill section to read: "* Section 1. The uncodified law of the State of Alaska is amended by adding a new section to read: INTENT. It is the intent of the Alaska State Legislature that political signs on private property not pose an opportunity for indirect commercial advertising." Page 1, line 3: Delete "Section 1" Insert "Sec. 2" Renumber the following bill section accordingly. MR. LARKIN replied, "The original suggestion from DOT was to say that all of this occurs outside of [the] right-of-way or department easements." He continued to say that AS 19.25.105(a) speaks to outside the right-of-way and they are expanding the language slightly to include easements in an effort to clear any ambiguity regarding easement versus right-of-way because "DOT uses their easements in the exact same fashion." SENATOR HOFFMAN made a point of clarification saying, "DOT has the right-of-way. They don't own it we own it; the state owns it so we decide what happens there." MR. LARKIN agreed that Senator Hoffman is correct. SENATOR COWDERY touched on signs placed in windows in subdivisions to emphasize the point that enforcement might be difficult. MR. LARKIN noted he included a number of court cases on this detail in the packets. He assured members that there wouldn't be ambiguity when referring to the precedents. SENATOR HOFFMAN asked whether the two proposed amendments might not open the door to legal challenges. MR. LARKIN replied his office holds the opinion that the State of Alaska and DOT does not and, even with the amendments, will not have the constitutional authority to restrict that specific form of speech. CHAIR GARY STEVENS asked Senator Guess if she had any questions. SENATOR GRETCHEN GUESS, attending via teleconference, thanked him for checking and said she had no questions at that time. 5:00 pm    NONA WILSON, legislative liaison with DOT/PF, prefaced her testimony by saying Rick Kauzlarich who handles all rights-of- way and easement issues was in Anchorage and although she would try to answer all questions, she was not an expert. CHAIR GARY STEVENS asked if the proposed amendments came from the department. MS. WILSON advised that the department reviewed HB 230 thoroughly and requested including amendment number 1, 23- LS078\U.3, to make a clear line of demarcation where private property stops and the DOT easement or right-of-way starts and who has the say when you have a political sign. She suggested, "This is mostly just a housekeeping point." CHAIR GARY STEVENS asked for verification that even though it is private property, the intention is that no signs are allowed on the department easement. MS. WILSON confessed it gets fuzzy for her at this point, so she used Mr. Kauzlarich's example. Say you're going down Egan Expressway...and it comes up that we [DOT] need to build a sidewalk. It just so happens that someone's private property abuts right where we want to build. So, I believe, an easement in an agreement between the private property owner and say the Department of Transportation that says okay, you can have this ten feet of my private property to have a sidewalk on it. When that happens, DOT assumes the authority over that ten feet and everything behind it is up to the private property owner. MS. WILSON said she asked Mr. Kauzlarich whether the property owner could place a sign just beyond the sidewalk and was told the property owner could do that. She admitted she didn't know how many signs would be allowed or the size requirements either. TAPE 04-6, SIDE A  5:10 pm    SENATOR COWDERY said his comment about signs in windows stemmed from the fact that federal funds might be used on roads in front of a house with a sign in the window. MS. WILSON said she hasn't considered that problem since his question was the first to raise that point. SENATOR COWDERY followed up to ask about whether this has anything to do with utility easements that are not owned by DOT. MS. WILSON didn't care to speculate, but agreed to get an answer for him. SENATOR COWDERY noted that the property owner pays taxes on a utility easement, but they can't use that portion of the property. MS. WILSON said that would be a municipal issue. SENATOR BERT STEDMAN asked if he heard her say that the state would have more authority over an easement than a municipality would have. MS. WILSON understood that when an easement is granted, the party that is granted the easement has control of that portion of the property. "If DOT had an easement with the utility, that chunk of land would be under DOT's control. That wouldn't say that it would keep maintenance operators and maybe the municipality from going on there and doing their work..." She continued to say that there might by an exception for utilities. SENATOR STEDMAN said that is a point to clarify and he would appreciate knowing a bit more about the rights granted on the issuance of an easement. MS. WILSON admitted that was a good question and she would talk to Mr. Kauzlarich. CHAIR GARY STEVENS announced that even though he didn't intend to move the bill then, he would like to adopt amendment 1 because it offers some clarification. SENATOR HOFFMAN raised the question of whether or not "department" is defined in the statute. MR. LARKIN conceded he was wondering whether the amendment should specify the Department of Transportation. CHAIR GARY STEVENS thought that was an important clarification and asked for a motion. SENATOR COWDERY said he would move the amendment. CHAIR GARY STEVENS said that would be as amended, which is, "the signs are located outside of Department of Transportation easements;" 23-LS0780\U.3 Utermohle 10/7/04 A M E N D M E N T 1  [AS AMENDED BY SENATE STATE AFFAIRS COMMITTEE] OFFERED IN THE SENATE TO: CSHB 230(STA) Page 2, line 18, following "hazard;": Insert "(C) the signs are located outside of  Department of Transportation easements;" Page 2, line 19: Delete "(C)" Insert "(D)" MS. WILSON agreed with the wording. CHAIR GARY STEVENS asked if there was objection and there was none. He stated he would hold proposed amendment 2 until it could be discussed further. MR. LARKIN advised that proposed amendment 2 is a clarification requested by both DOT and Federal Highway Administration. It states the Legislature's intent that political signs on private property are not providing an opportunity for indirect commercial advertising. He reported the sponsor supports that proposed amendment. CHAIR GARY STEVENS replied the committee would hold that until another hearing. There were no further questions or comments. CHAIR GARY STEVENS held CSHB 230 in committee and adjourned the meeting at 5:20 pm