SB 382-EMINENT DOMAIN/REPLAT OF BOUNDARY CHANGES CHAIR HOLM announced that the final order of business would be CS FOR SENATE BILL NO. 382(CRA) am, "An Act relating to replat approval; relating to the platting of right-of-way acquired through eminent domain proceedings; and providing for an effective date." REPRESENTATIVE OGG moved to adopt CSSB 382(CRA) am as the working document. There being no objection, it was before the committee. Number 0463 MARY JACKSON, Staff to Senator Tom Wagoner, Alaska State Legislature, presented CSSB 382(CRA) am on behalf of the Senate Transportation Standing Committee. Ms. Jackson informed the committee that this legislation was introduced upon the request of the commissioner of the Department of Transportation & Public Facilities (DOT&PF). The legislation answers an immediate legal issue for a project on the Kenai peninsula and a project in Anchorage. REPRESENTATIVE STEPOVICH asked if Ms. Jackson was familiar with any of the concerns Representative Wolf had regarding how this legislation would impact his district. MS. JACKSON replied yes, and related that Representative Wolf just discussed his concerns with the representative from the Department of Law who provided some clarity on the issue. She acknowledged that Representative Wolf voted against this legislation in its prior committee of referral. Number 0583 PETER PUTZIER, Senior Assistant Attorney General, Transportation Section, Civil Division (Juneau), Department of Law, remarked that CSSB 382(CRA) am is very narrow. The primary effect of this legislation is to change one sentence of AS 09.55.275. He explained that there were two back-to-back challenges to AS 09.55.275 in the Anchorage Superior Court. The statute, AS 09.55.275, refers to replat approval, which he explained is DOT&PF providing notification to a municipality regarding boundary changes that might occur in the context of a highway. Municipalities also have to follow this statute, and therefore have to provide notice and obtain proper approval. The argument being made and trying to be changed by this legislation is in relation to the last sentence of AS 09.55.275, which says: "The platting authority shall treat applications for replat made by state or local governmental agencies in the same manner as replat petitions originated by private landowners." Mr. Putzier noted that some of the more sophisticated entities, such as Anchorage, have specific processes for analyzing replat approval or petitions because it's a unique procedure. However, the argument being made in court is that the entire process is rendered improper based on the mere fact that the entity has a unique procedure. Mr. Putzier opined that he didn't believe that was the intent back when the statute was passed in 1975, rather the intent was for DOT&PF to provide notice, not to tell municipalities how to analyze replat petitions. This legislation merely clarifies the intent of the legislature in 1975 and provide municipalities the right to control how the replat process is conducted. CHAIR HOLM turned attention to the second to the last sentence of AS 09.55.275, which read: "However, if a state agency clearly demonstrates an overriding state interest, a waiver to the approval requirements of this section may be granted by the governor." He asked if the governor can override the court challenge. MR. PUTZIER answered that theoretically, it's possible. He noted the difficulties with the term "overriding state interest." He said that, to his knowledge, the provision hasn't been used and it isn't clear what would happen if there was an attempt to use it. Number 0830 CHAIR HOLM noted that a series of things occur before eminent domain occurs and the property is actually taken. He related his understanding that once [the property is actually to be taken], this [court challenge] came into play. MR. PUTZIER agreed. REPRESENTATIVE STEPOVICH agreed with Chair Holm that the statute specifies that the governor could make a decision in this case. He acknowledged Mr. Putzier's comment regarding a possible challenge, and pointed out that anything can be challenged. MR. PUTZIER said that the state couldn't realistically rely on the waiver as a means to proceed with public projects. There is some question, he noted, regarding whether the governor can exercise his authority once there is already a problem. Arguably, the governor has to make a decision before there is a problem. Therefore, every municipal and state project would have to be brought to the governor's attention in order to obtain a waiver. Mr. Putzier opined that such wouldn't be a good policy. CHAIR HOLM suspected that this would limit the "political changing" of eminent domain. MR. PUTZIER agreed. Number 0966 REPRESENTATIVE MASEK moved to report CSSB 382(CRA) am out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, it was so ordered.