Legislature(2003 - 2004)

05/08/2004 11:05 AM House CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 560-MUNICIPAL LAND USE REGULATION                                                                                          
CHAIR MORGAN announced  that the only order of  business would be                                                               
HOUSE BILL NO. 560, "An  Act relating to application of municipal                                                               
ordinances  providing  for  planning,   platting,  and  land  use                                                               
regulation  to interests  in land  owned by  the Alaska  Railroad                                                               
Corporation; and providing for an effective date."                                                                              
Number 0090                                                                                                                     
BARBARA  KOTTING,   Staff  to  Representative  Jim   Holm,  House                                                               
Transportation  Standing  Committee,  Alaska  State  Legislature,                                                               
presented  HB   560  on   behalf  of   the  sponsor,   the  House                                                               
Transportation Standing  Committee.   Ms. Kotting  explained that                                                               
Section  1  allows  the Alaska  Railroad  Corporation  (ARRC)  to                                                               
extend  its existing  line from  Eielson Air  Force Base  to Fort                                                               
Greely and acquire  land along the corridor for  the railroad and                                                               
associated facilities.  Sections 2  and 3 authorize ARRC to issue                                                               
bonds  for up  to  $500  million for  this  extension.   However,                                                               
before  issuing  the  bonds  ARRC   must  enter  into  a  binding                                                               
agreement with  the United States  government such that  there is                                                               
sufficient revenue  to pay principal, interest,  and other costs.                                                               
Section 4  creates a  Railroad Planning,  Platting, and  Land Use                                                               
Regulation  Task Force,  which will  make recommendations  to the                                                               
legislature  regarding  the  extent to  which  local  regulations                                                               
should apply to  ARRC land.  The President of  the Senate and the                                                               
Speaker  of the  House  of Representatives  will jointly  appoint                                                               
municipal officials from each of  the 13 governing bodies through                                                               
which the railroad currently passes.   Section 5 sunsets the task                                                               
force  on  the  second  day  of  the  2005  legislative  session.                                                               
Section 6 is the immediate effective date.                                                                                      
Number 0315                                                                                                                     
WENDY  LINDSKOOG,  Director,  External Affairs,  Alaska  Railroad                                                               
Corporation,   explained  that   originally  HB   560  began   as                                                               
legislation addressing  the Alaska  Supreme Court case  of Native                                                             
Village of Eklutna  v. Alaska Railroad.   The aforementioned case                                                             
addressed  whether  the Alaska  Railroad  was  exempt from  local                                                               
planning and zoning  regulations.  The Native  Village of Eklutna                                                               
said  that the  Alaska Railroad  needed to  obtain a  conditional                                                               
permit for  a quarry owned and  operated by the railroad  for the                                                               
last  50 years.    The case  has  been in  court  for some  time,                                                               
although the  lower court ruled  with the Alaska  Railroad saying                                                               
that  as a  state instrumentality  the railroad  was exempt  from                                                               
local  planning  and zoning  regulations.    However, the  Alaska                                                               
Supreme Court  overruled the  lower court  decision.   The Alaska                                                               
Supreme Court said that the  Alaska Railroad statute wasn't clear                                                               
enough in that  area.  Therefore, the  original legislation seeks                                                               
to clarify that portion of  statute such that the Alaska Railroad                                                               
is  exempt  from  local  planning   and  zoning.    However,  the                                                               
aforementioned caused  quite a  stir with  the Native  Village of                                                               
Eklutna as well as the municipalities along the Rail Belt.                                                                      
MS. LINDSKOOG pointed out that  although the municipalities along                                                               
the Rail  Belt haven't had  power [over the Alaska  Railroad with                                                               
regard  to  local  planning  and   zoning],  the  debate  is  now                                                               
regarding whether  there are parts  of Alaska Railroad  land that                                                               
should be under  local authority.  This all led  to the formation                                                               
of  the task  force in  the current  legislation.   Ms. Lindskoog                                                               
said there  are a lot  of good arguments  with regard to  why the                                                               
Alaska Railroad  should be protected from  jurisdictional control                                                               
of  the 13  different  municipalities through  which it  travels.                                                               
For instance,  hours of operation  and whistle blowing  and other                                                               
things  would   directly  impact   operations  if   13  different                                                               
communities  could have  their  own rules.    However, ARRC  owns                                                               
36,000 acres  of land, of which  half is used for  operations and                                                               
half  can be  leased.   When  ARRC leases  land, the  leaseholder                                                               
falls under  local planning and  zoning.  Therefore, the  land in                                                               
question may be a small bit of land.                                                                                            
MS. LINDSKOOG  highlighted that  there is also  a lot  of federal                                                               
protection for many interstate commerce  concerns.  Ms. Lindskoog                                                               
explained  that  the Alaska  Supreme  Court  case said  that  the                                                               
Alaska Railroad should go through  local planning and zoning, and                                                               
if there  is disagreement with  regard to the local  planning and                                                               
zoning,  the  railroad  should litigate  that.    Therefore,  the                                                               
railroad has been  set up to litigate just  about everything that                                                               
has some kind of conflict.   Ms. Lindskoog expressed the need for                                                               
there to  be a solution such  that there are consistent  rules by                                                               
which the  railroad can develop.   Because there isn't  much time                                                               
left in the  session for such a large policy  decision, there was                                                               
a  decision to  form a  task force  with members  from the  local                                                               
municipalities,  the railroad,  and state  leadership.   The task                                                               
force  would  provide  recommendations to  the  legislature  next                                                               
Number 0684                                                                                                                     
REPRESENTATIVE  CISSNA asked  whether the  governments of  Native                                                               
corporation  lands or  tribal lands  are involved  with the  task                                                               
force when the railroad passes through such land.                                                                               
MS.  LINDSKOOG pointed  out that  the Native  Village of  Eklutna                                                               
falls  under the  Municipality of  Anchorage,  and therefore  the                                                               
Native  Village of  Eklutna suggested  that  the railroad  should                                                               
obtain  a  conditional  use  permit   from  the  Municipality  of                                                               
Anchorage.  Therefore, the task  force would have membership from                                                               
each community with the jurisdiction.                                                                                           
MS.  LINDSKOOG, in  further  response  to Representative  Cissna,                                                               
said that  there is a  lot of  process involved with  about every                                                               
project with  which the railroad  is involved.  About  80 percent                                                               
of  ARRC's  capital program  is  touched  by federal  dollars  or                                                               
permits.    For  example,   vast  archaeological  and  historical                                                               
studies  were performed  for a  track-straightening project  ARRC                                                               
did  through Eklutna.   She  reiterated  that the  case over  the                                                               
quarry is a quarry in which ARRC  has owned and mined in for over                                                               
50  years.   Furthermore,  when  land  choices under  the  Alaska                                                               
National Interest  Lands Conservation Act (ANILCA)  were made, it                                                               
was recognized that ARRC would  continue to perform operations in                                                               
the quarry.   The  ARRC has a  memorandum of  understanding (MOU)                                                               
signed  with the  Native corporation  of Eklutna.   However,  she                                                               
acknowledged that  the Native  Village of  Eklutna is  the entity                                                               
that actually sued the Alaska Railroad.                                                                                         
Number 0923                                                                                                                     
REPRESENTATIVE CISSNA  noted that  when she  lived in  Kodiak she                                                               
spent  a lot  of time  with the  historical society  there.   She                                                               
recalled  that  often something  of  significance  would come  to                                                               
light  in  an existing  area  being  used for  whatever  purpose.                                                               
Therefore,  she  surmised  that  this can't  be  the  first  time                                                               
"that's" happened.   She asked  if there are laws  or regulations                                                               
that apply  in a  situation [in  which something  of significance                                                               
comes to light on land that  has been used for a specific purpose                                                               
for some time].                                                                                                                 
MS. LINDSKOOG  said that she  wasn't aware  of any other  time in                                                               
which  the ARRC  has  ran into  such a  problem.   Ms.  Lindskoog                                                               
opined, "I  think what  you're getting at,  however, is  ... that                                                               
... if we're not doing a project,  what's going to kick us into a                                                               
situation where we're going to  resolve something like a cultural                                                               
significance issue."  To that  Ms. Lindskoog reiterated that this                                                               
legislation   seeks   to   address   a   very   important   legal                                                               
clarification to the current law  that has placed the railroad in                                                               
a difficult  position.  However,  she acknowledged that  there is                                                               
also  a real  cultural situation  that  has to  be addressed  and                                                               
should  be addressed  separately,  which the  railroad is  doing.                                                               
For the  last couple of  years, the  railroad has been  trying to                                                               
address this.   She  explained that  the quarry  and the  rock is                                                               
virtually  unusable  on  any  federal   project  because  of  the                                                               
cultural issue.   Although a lot  of work is being  done with the                                                               
Native Village  of Eklutna,  she wasn't  sure where  the solution                                                               
would lay.   However,  she reiterated that  the two  are separate                                                               
CHAIR MORGAN, upon  determining there was no one  else who wished                                                               
to testify, closed public testimony.                                                                                            
Number 1133                                                                                                                     
REPRESENTATIVE  WOLF  moved  to   report  CSHB  560(TRA)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSHB  560(TRA)  was                                                               
reported from  the House Community and  Regional Affairs Standing                                                               

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