HOUSE BILL NO. 279 "An Act relating to encroachments in the right-of-way of a highway." REPRESENTATIVE HAWKER, SPONSOR, spoke in support of the legislation, which was introduced by the House Transportation Committee, on behalf of Representative Hawker and Representative Stoltze. He maintained that the legislation would clear an inconsistency in the current law regarding the use of highway right-of-ways. Federal law requires all that encroachments from project construction be removed from the right-of-way. He gave examples of how current law has inconvenienced businesses in his district. House Bill 279 inserts an exception into statute that will grandfather current encroachments in the right-of-way. They may remain until such time as [the state of Alaska] needs to have the encroachments removed. He mentioned Amendment #1, which would further clarify the rights of the state. (see below). The bill does not address billboards or other signs. 4:27:50 PM Representative Holm mentioned the fiscal note, which contains no increment. 4:28:24 PM JOHN MACKINNON, DEPUTY DIRECTOR, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, stated that the Department has not refined the fiscal note. There is an annual economic rent. An application fee would be set through regulation for encroachment based on appraisal or $100 dollars per year, which ever is greater. He acknowledged that there would be an incremental cost in handling permits. 4:30:05 PM Representative Holm expressed concern with the legislation. He observed that the landowner owns the property, yet the state has the right to charge them for an easement. Mr. MacKinnon clarified that the process is in current regulation. Representative Hawker commented that property is acquired subject to the easement. The landowner is entitled to fee simple and subject to the easement rights. Mr. MacKinnon noted that there are two classes of right or ways: where the state has an easement and where the state owns the property. It is difficult to collect payments when the state only has an easement. 4:32:11 PM Representative Kelly asked if the legislation would resolve any federal requirements: maintenance concerns & standards. He commented on Amendment #1 and questioned if it would cover maintenance needs. Mr. MacKinnon responded that encroachments were not close enough to the road to cause trouble. There is no problem with mailboxes. 4:33:31 PM Representative Hawker noted that the legislation only addresses existing encroachments and does not allow any new ones. The amendment specifically addresses qualifications. 4:34:37 PM Representative Hawker MOVED to ADOPT Amendment #1 as amended (see applicant below): Page 1, line 12, following "remain" Insert ", subject only to removals required by federal highway funding requirements imposed on the state by federal law," Page 1, line 15 through page 2, line 13 Delete all material Insert "(c) Upon receipt of an application, the department shall issue an encroachment permit to a private person, a government agency acting in a business capacity, or an owner or lessee of land contiguous to the right-of- way for an encroachment that on the effective date of this Act is present within the right-of-way of an interstate, primary, or secondary highway and is not authorized by a written encroachment permit if the department finds that: (1) the encroachment does not pose a risk to the traveling public and the integrity and safety of the highway is not compromised; (2) the applicant [application] has demonstrated the encroachment was erected in good faith; 3) the denial of the encroachment permit would pose a hardship on the person, agency, owner, or lessee who applies for the permit; (4) the issuance of an encroachment permit will not cause a break in access control for the highway; (5) the land will not be necessary for a highway construction project during the initial term of the permit; and (6) issuance of a permit is consistent with federal requirements regarding encroachments on federal aid highways. (d) The department may not remove an encroachment present within the right-of-way of an interstate, primary, or secondary highway that is not authorized by a written encroachment permit on the effective date of this Act until the department determines that the encroachment does not qualify for an encroachment permit issued under this section. The department may charge an application fee, not to exceed $100, for a permit issued under this section. An encroachment permit issued under this section may contain reasonable conditions to protect the traveling public, the safety and integrity of a highway's design and the public interest. (e) The land area described in an encroachment permit may not be used to meet minimum requirements for a contiguous land use under applicable municipal land use standards or under applicable regulations adopted by the Department of Environmental Conservation. The use of land contiguous to the land area described in the permit must satisfy the applicable municipal land use standards and applicable regulations adopted by the Department of Environmental Conservation without regard to the land area described in the permit. (f) The issuance of an encroachment permit under AS 19.25.200 - 19.25.250 does not entitle the owner, occupant, or person in possession of the encroachment, or any other person to a payment of compensation or of relocation benefits under AS 34.60, if the encroachment permit is revoked or not renewed or if the encroachment must be changed, relocated, or removed under AS 19.25.200 - 19.25.250. Representative Holm referred to provisions for the Department of Environmental Conservation to create applicable regulations for the use of contiguous lands. He questioned if contiguous lands would be kept under the same umbrella of use. 4:37:10 PM Representative Hawker clarified that the intent is that the issuance of a permit not create, for any land owner, a thing of value that they do not already exist a thing of value that they already possess. There is no intention to devalue any right that the landowner possesses. The contiguous land concept addresses these concerns. 4:39:17 PM Representative Holm expressed concern with Section E and questioned what type of restraints would be put on the property. 4:40:07 PM In response to Representative Holm's concerns, Representative Hawker stated that he would entertain a separate amendment to remove "applicable regulations adopted by the Department of Environmental Conservation". Representative Holm WITHDREW his OBJECTION to Amendment #1. Representative Kelly referred to liability. Mr. MacKinnon noted that liability is covered as part of the permit holder's homeowners' insurance. He stated that he was more concern with the public coming through and getting injured. 4:41:24 PM There being NO OBJECTION, Amendment #1 was adopted. 4:41:41 PM Representative Holm asked for more information on Section E. Mr. MacKinnon replied that the intent was not to run a foul of on site wastewater requirements. Representative Hawker stressed that they are attempting to walk among existing rights, standards and regulations, while addressing individual problems. 4:44:19 PM Mr. MacKinnon spoke in support of the legislation. 4:45:00 PM Representative Foster MOVED to REPORT CS HB 279 (FIN) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CSHB 279 (FIN) was reported out of Committee with a "no recommendation" recommendation and with zero fiscal note #1 by the Department of Transportation and Public Facilities. 4:46:13 PM