HB 318-LIMITATION ON EMINENT DOMAIN  8:37:05 AM CHAIR RALPH SEEKINS announced CSHB 318(FIN) AM to be up for consideration. He said his intent for the day was to have a good round table discussion on the bill. REPRESENTATIVE LESIL MCGUIRE introduced herself for the record. 8:38:18 AM SENATOR HOLLIS FRENCH advised Representative McGuire of a memorandum received from Don Bullock of the Legislative Legal and Research Services Division dated March 22, 2006 that advised that any "escape hatch" from the eminent domain bill would be problematic. He expressed concern that a local government would not be able to control eminent domain in its own community. Senator Gene Therriault joined the meeting. REPRESENTATIVE MCGUIRE responded she would look favorably at a "voting threshold" if that is what the committee preferred. She reminded the committee that Kelo versus City of New London came about due to a local action taken by a local government. She speculated that the people of the City of New London might wish that their state had legislation to protect them at the state level when the city let them down. 8:44:12 AM SENATOR GRETCHEN GUESS advised that the discussion in the Senate Judiciary Standing Committee has been whether or not to allow a local governing body by a two-thirds majority to make the decision. She noted the subject was a difficult balance between local control and free will and expressed concern that smaller communities do not get the representation that they need in the state capitol. REPRESENTATIVE MCGUIRE said she liked the idea of a two-thirds threshold. SENATOR FRENCH noted the non-delegable aspect is important and the greater majority provision protects minority rights. He expressed support for the idea. CHAIR SEEKINS agreed. He said he objects when the city assembly responsibility is handed off to private developers. 8:48:48 AM REPRESENTATIVE MCGUIRE noted state policy makers should ensure that the rights of the people are equal for all. She said she would accept the will of the committee. Paragraph 7 on page 4 allows for a stopgap because it is difficult to think of every situation that the bill might cover. 8:51:57 AM MR. JOHNSON added four large communities have already made the decision to enact ordinances similar to this legislation. The discussion on the bill is really whether to afford the rest of the state the same protection of eminent domain. CHAIR SEEKINS said he did not want to step on local control. Everyone wants to protect private property but at the same time Alaskans know the importance of access to recreational areas. 8:54:26 AM REPRESENTATIVE MCGUIRE pointed out that the issue goes both ways. The Tony Knowles Coastal Trail runs right through her district, she stated, and some people love it while some hate it. The local control bypass allows a measure of balance to the bill. CHAIR SEEKINS noted the difference between a developer and conservationist is that the developer wants to build a cabin this summer where as the conservationist built his last summer. He said access to recreation was a huge topic in Alaska. 8:57:38 AM REPRESENTATIVE MCGUIRE agreed there are unique circumstances in this state. She said the argue against local control would be that the bill takes care of people's concerns regarding access to recreational areas, such as navigable waters and hunting and fishing rights. The bill would not limit the state's ability to use the power of eminent domain in any other circumstance except to take property from one private entity and transfer it to another private entity. In a state where private ownership represents one percent of the land, there should be creative options for taking land to accomplish the goal. CHAIR SEEKINS stated the recreational side was not restricted to private-to-private transfer. REPRESENTATIVE MCGUIRE stood corrected. 9:00:41 AM SENATOR GUESS noted page 5, line 11 lists what is excluded from the definition of recreational. She referred to subsection (e) on page 4 and said there is nothing to override that provision. REPRESENTATIVE MCGUIRE responded that subsection (7) was added due to the fact that the bill already had many exclusions. She said she would support it if the committee chose to add the same legislative approval provision to the recreational side of the bill. MR. JOHNSON advised it would be a simple fix for the committee. On page 6 line 18 simply just change the (1)-(6) to (1)-(7). That would roll the legislative oversight into the private property prong. 9:03:55 AM REPRESENTATIVE MCGUIRE advised the committee that the concepts developed separately for the economic and recreational aspects. People question the reason the state could take their homes for recreational reasons if they can't for economic purposes. SENATOR GUESS referred to page 3, lines 29-31 and asked whether that would allow for a statute to be created that would allow a real estate company to exercise eminent domain. MR. JOHNSON said the definition of private person could be utilities, pipeline companies, or any one other than the government. REPRESENTATIVE MCGUIRE advised "private person" is defined in AS 09.55.240. 9:08:41 AM PETER PUTZIER, Senior Assistant Attorney General, Department of Law (DOL), responded to the question regarding "private person." He handed out a default definition of " private person" and said it includes corporations and a wide variety of other entities. Utilities have been granted the right of eminent domain. Lines 29-31 are in the bill to make it clear that their authority remains status quo. 9:09:51 AM SENATOR GUESS said for the record she read AS 09.55.240 and there is no definition. MR. PUTZIER said if there were a question regarding what "private person" means, it would be as defined in Title 1. SENATOR FRENCH asked the number of express authorizations that exist in statute regarding eminent domain. MR. PUTZIER offered a list of all the authorizations to committee members. 9:12:28 AM DAVE FEEKEN, Alaska Association of Realtors testified that the Kelo decision defined economic development as a public use, taking private property from one owner and giving it to another for the purpose of economic development. In a survey conducted by the Association of Realtors, 97 percent were opposed to that type of eminent domain powers. The US Supreme Court found in the Kelo case that pursuant to a well conceived plan, the public benefits through increased tax revenues was good enough to be called a public use. With only one percent of Alaska's land in private hands, the use of eminent domain needs to be severely restricted. Currently there are 10,000 active private-to-private eminent domain case takings in process in the United States. "Your home is only your castle so long as somebody doesn't come along and convince the city council they have a better use," he stated. The key to eminent domain use is a good definition of "public use" and "economic development," he advised. The Alaska Association of Realtors will continue to work on eminent domain legislation throughout the summer. 9:16:02 AM GARVAN BUCARIA, Wasilla, testified that the language of the bill was perplexing and difficult to keep up with. His previous testimony questioned the need for using eminent domain for recreational purposes. He said he is subject to eminent domain under the 2004-2005 Department of Transportation and Public Facilities study, which has notified him that his property might be taken for a main street widening project in Wasilla. Two years later, he said, he still does not know what the DOT is planning to do and it has been very stressful. He agreed with the local control provision but said it was a relative question. He has attended many meetings on the issue and said he is aggrieved by the lack of public participation even though it affects everyone in the community. He believes there is not sufficient public notification within the communities. 9:20:37 AM SENATOR HUGGINS asked the location of Mr. Bucaria's property. MR. BUCARIA responded with the location of his property. The proposed road would go through his house and completely destroy the center of Wasilla, he stated. SENATOR HUGGINS asked the length of time he has lived in his house. MR. BUCARIA said he has lived in his house since 1986 but has been an Alaska resident since 1975. 9:23:23 AM SENATOR GUESS moved Amendment 1. Page 4, line 9: Delete "by law" and following "transfer": Insert "in an Act, the subject of which is limited to the transfer." CHAIR SEEKINS objected for the purpose of discussion. SENATOR GUESS explained Amendment 1 would ensure that if the Legislature does approve a transfer of property that it does so under a separate bill, which would ensure public process. REPRESENTATIVE MCGUIRE expressed support. Hearing no further objections, Amendment 1 was adopted unanimously. SENATOR GUESS moved Amendment 2. Page 5, line 8: Delete "small boat harbor." CHAIR SEEKINS objected for the purpose of discussion. SENATOR GUESS advised Amendment 2 would remove "small boat harbor" from recreational facility or project. She expressed concern over unintended consequences due to a lack of definition. SENATOR THERRIAULT said the small boat harbor land would already be owned by the state and wondered whether Senator Guess's concern was over the access to it. 9:25:50 AM SENATOR GUESS responded she was uncomfortable since the phrase was undefined and nebulous. SENATOR THERRIAULT asked the bill sponsor where the language came from. MR. JOHNSON advised they tried to encompass as much as possible with regard to recreational facilities. He said they could not come up with a scenario where a home would be taken for a small boat harbor. CHAIR SEEKINS noted the restrictions would be to within 250 feet of the home. MR. JOHNSON surmised the small boat harbor would be mainly in the water anyway so the likelihood of the taking of any property would be difficult to conceive. CHAIR SEEKINS speculated that the access to the harbor could affect private property. MR. JOHNSON agreed. 9:27:55 AM CHAIR SEEKINS removed his objection. SENATOR HUGGINS cautioned the committee against deleting "small boat harbor" too quickly. He suggested the committee work on a definition first. 9:30:55 AM SENATOR GUESS asked Senator Huggins whether page 5, line 9 wouldn't cover his concerns. SENATOR HUGGINS indicated no. 9:33:12 AM CHAIR SEEKINS expressed concern over the lack of definition. He posed a hypothetical scenario of a right-of-way to a navigable stream. In order to accommodate the ability to launch a boat, the city might need to take a small portion of the waterfront and that could be within 250 feet of someone's home. The question remains whether that would be defined as a small boat harbor. 9:36:04 AM SENATOR GUESS withdrew Amendment 2 in order to obtain a definition of small boat harbor. REPRESENTATIVE MCGUIRE committed to work on that issue. SENATOR GUESS moved Amendment 3. Page 6, line 4: Delete "rather than primarily for recreation." CHAIR SEEKINS objected for the purpose of discussion. SENATOR GUESS explained that the words "rather than primarily for recreation" bother her since the committee has not defined the word "recreation." 9:38:20 AM REPRESENTATIVE MCGUIRE did not object to the proposed amendment. CHAIR SEEKINS removed his objection and the committee adopted Amendment 3 unanimously. 9:40:38 AM SENATOR FRENCH advised the committee that he would have a proposed amendment concerning the locally elected body having to approve transfer of property by a two-thirds vote and that it is non-delegable. CHAIR SEEKINS said he did not object provided there were provisions for notice and public hearings. SENATOR HUGGINS expressed support for local control. CHAIR SEEKINS held the bill in committee.