Legislature(2009 - 2010)

02/09/2009 02:09 PM JUD


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02:09:36 PM Start
02:09:45 PM HB49
02:46:53 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 49 - EMINENT DOMAIN: RECREATIONAL STRUCTURES                                                                               
                                                                                                                                
2:09:45 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced  that the only order of  business would be                                                               
HOUSE BILL  NO. 49, "An  Act relating  to the prohibition  of the                                                               
exercise of  the power of  eminent domain against  a recreational                                                               
structure for the purposes of  developing a recreational facility                                                               
or project."                                                                                                                    
                                                                                                                                
2:10:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CRAIG JOHNSON,  Alaska State Legislature, sponsor,                                                               
relayed that legislation  similar to HB 49 passed  the House last                                                               
year,  and that  HB 49  does not  contain the  language that  the                                                               
Senate disapproved  of in  that past  legislation.   He recounted                                                               
that the  provision of Alaska  statute prohibiting the  taking of                                                               
someone's personal  residence for  recreational purposes  via the                                                               
exercise of eminent  domain was engendered by [the  ruling in the                                                               
U.S. Supreme  Court case, Kelo v.  City of New London].   Because                                                             
many Alaskans build  a second home for  recreational purposes but                                                               
intend to  live in  that second home  full time  upon retirement,                                                               
HB 49  would  ensure  that  that   same  protection  against  the                                                               
exercise of  eminent domain applies to  an individual landowner's                                                               
recreational  structure.    Nothing  in HB  49,  he  assured  the                                                               
committee,  would preclude  the  exercise of  eminent domain  for                                                               
"traditional"  purposes.    He offered  his  belief  that  taking                                                               
someone's   home  or   recreational  property   for  recreational                                                               
purposes doesn't  rise to the level  of being in the  best public                                                               
interest.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  JOHNSON, in  response  to  a question,  explained                                                               
that the language  the Senate objected to would  have allowed the                                                               
Department  of  Natural  Resources  (DNR)  to  inventory  fishing                                                               
streams  and  provide  replacements, adding  that  although  he'd                                                               
supported  the  inclusion  of  that language  at  the  time,  its                                                               
inclusion resulted in the legislation  languishing in the Senate,                                                               
and  so  he would,  therefore,  oppose  any future  amendment  to                                                               
reinsert  it.   He  indicated that  HB  49 defines  "recreational                                                               
structure"  to mean  a permanent  structure that  is used  by the                                                               
owner of  or beneficiary of  a trust  holding legal title  to the                                                               
structure as a dwelling for seasonal recreational purposes.                                                                     
                                                                                                                                
REPRESENTATIVE GATTO  asked whether  the bill would  preclude the                                                               
exercise of eminent domain by utility companies.                                                                                
                                                                                                                                
REPRESENTATIVE  JOHNSON  said it  would  not;  HB 49  would  only                                                               
preclude the taking of a  person's recreational structure via the                                                               
exercise  of  eminent domain  for  the  purpose of  developing  a                                                               
recreational facility or project.                                                                                               
                                                                                                                                
2:17:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL, in response  to a question, too, observed                                                               
that  the  bill  addresses recreational  structures  intended  as                                                               
dwellings for seasonal recreational purposes.                                                                                   
                                                                                                                                
REPRESENTATIVE   GRUENBERG    questioned   whether    the   term,                                                               
"recreational  facility  or  project"  -  as  currently  used  in                                                               
existing  AS 09.55.240(e)  -  is already  defined,  and, if  not,                                                               
whether it ought to be.                                                                                                         
                                                                                                                                
REPRESENTATIVE   JOHNSON   mentioned   that  HB   49's   proposed                                                               
limitation on the  exercise of eminent domain for  the purpose of                                                               
developing  a recreational  facility or  project also  applies to                                                               
property attached to and within  250 linear feet of an individual                                                               
landowner's  personal residence  or recreational  structure.   In                                                               
response  to  questions,  he relayed  his  understanding  that  a                                                               
performing  arts  center  would   be  considered  a  recreational                                                               
facility or project, reiterated the  type of taking that would be                                                               
precluded by  HB 49,  offered that  he is not  aware of  any such                                                               
taking  have  occurred in  Alaska,  and  surmised that  the  real                                                               
estate industry in Alaska is in support of HB 49.                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG turned  attention  to  the language  on                                                               
page 1,  line 13, that  read, "the  owner of or  beneficiary of",                                                               
and opined  that that language  reads strangely.   Representative                                                               
Gruenberg  asked  Representative  Johnson  whether  he  would  be                                                               
amenable to having the first instance of the word, "of" deleted.                                                                
                                                                                                                                
REPRESENTATIVE  JOHNSON indicated  that  as long  as it  wouldn't                                                               
alter the  intent of the  bill, he  wouldn't have a  problem with                                                               
such a change.                                                                                                                  
                                                                                                                                
2:26:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG,   in  response  to  his   own  earlier                                                               
question,   observed  that   AS   09.55.240(h)(5)  provides   the                                                               
following definition:                                                                                                           
                                                                                                                                
          (5) "recreational facility or project"                                                                                
          (A) means a facility or project, the primary                                                                          
     purpose of which is recreational;                                                                                          
          (B) includes a park, trail or pedestrian pathway,                                                                     
     greenbelt,  amusement park,  fresh  water boat  harbor,                                                                    
     sports facility,  playground, infrastructure,  or other                                                                    
     facility  related to  or  in support  of  an indoor  or                                                                    
     outdoor recreational facility or project;                                                                                  
          (C) does not include                                                                                                  
          (i) a highway, sidewalk, or path within the                                                                           
     right-of-way of a highway;                                                                                                 
          (ii) a path, trail, or lane used as a safe route                                                                      
     to a school program;                                                                                                       
          (iii) a wayside or rest stop;                                                                                         
          (iv) a development, the primary purpose of which                                                                      
     is not  recreational, such  as a  path, trail,  or lane                                                                    
     developed to reduce congestion,  or to encourage use of                                                                    
     an alternate, gas-saving mode of transportation;                                                                           
          (v) a path or trail to or between villages or                                                                         
     from a village to a facility or resource;                                                                                  
          (vi) a stormwater retention or treatment facility                                                                     
     or wetland,  habitat, or other acquisition  required to                                                                    
     obtain  a  permit  for a  highway,  airport,  or  other                                                                    
     public project;                                                                                                            
          (vii) a taking under AS 19.05.110, 19.05.120, AS                                                                      
     19.22.020,  AS 27.21.300,  AS 35.20.040,  35.20.050, or                                                                    
     AS 41.35.060;                                                                                                              
          (viii) a taking not prohibited by law before                                                                          
     January 1, 2007, under AS 41.21; and                                                                                       
          (ix) a path, trail, road, or site for which no                                                                        
     reasonable  alternative exists  and which  is necessary                                                                    
     to  preserve or  establish  public access  to or  along                                                                    
     publicly owned land  or water, if the use  of the path,                                                                    
     trail, road,  or site itself  is for  transportation to                                                                    
     or to facilitate use of publicly owned land or water.                                                                      
                                                                                                                                
REPRESENTATIVE   GRUENBERG  characterized   this  definition   as                                                               
circular and imprecise.                                                                                                         
                                                                                                                                
2:29:37 PM                                                                                                                    
                                                                                                                                
CAROLE  WINTON, Alaska  Association  of  Realtors (AAR),  relayed                                                               
that the  AAR was in  support of House  Bill 318 that  passed the                                                               
legislature in 2006, and is now in  support of HB 49.  It is very                                                               
important  that  Alaskans who  own  cabins  or homes  which  they                                                               
ultimately wish  to retire  to don't have  those homes  or cabins                                                               
taken for the purpose of a recreational facility or project.                                                                    
                                                                                                                                
2:30:17 PM                                                                                                                    
                                                                                                                                
ERROL CHAMPION,  Associate Broker,  Coldwell Banker  Race Realty,                                                               
characterized HB  49 as a  great bill, and expressed  support for                                                               
it.                                                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG   disclosed  a  possible   conflict  of                                                               
interest in that Ms. Winton is his realtor.                                                                                     
                                                                                                                                
MR. CHAMPION, in  response to a question, said that  how a person                                                               
intends to use his/her private property  is up to him/her, and so                                                               
a person could leave [some]  of his/her property undeveloped [and                                                               
still be afforded the protection offered by HB 49].                                                                             
                                                                                                                                
2:33:03 PM                                                                                                                    
                                                                                                                                
[Following was  a brief  discussion on a  topic unrelated  to the                                                               
bill before the committee.]                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether  a  project  "like  the                                                               
performing  arts  center" or  the  Morris  Thompson Cultural  and                                                               
Visitors  Center  would  clearly  be  considered  a  recreational                                                               
facility or project as defined under AS 09.55.240(h)(5).                                                                        
                                                                                                                                
2:38:04 PM                                                                                                                    
                                                                                                                                
DON  BULLOCK, Attorney,  Legislative  Legal Counsel,  Legislative                                                               
Legal and  Research Services,  Legislative Affairs  Agency (LAA),                                                               
said  he is  not  familiar  with those  projects  but noted  that                                                               
sometimes  one   sees  the   phrase  "cultural   or  recreational                                                               
project", which could  include a museum, for example.   There was                                                               
quite  a  bit of  work  that  went  into crafting  the  statutory                                                               
definition of  "recreational facility  or project"  he explained,                                                               
and  the   definition  contains  both   a  list  of  what   is  a                                                               
recreational  facility  or project  and  a  list of  what  isn't;                                                               
inclusion of both  lists was necessary because  of the difficulty                                                               
in identifying  exactly what a  recreational facility  or project                                                               
is.   He also pointed out  that the word, "recreational"  as used                                                               
in  the bill's  phrase,  "seasonal  recreational purposes"  might                                                               
have a  broader meaning  then it  does when  used in  the phrase,                                                               
"recreational facility or project".                                                                                             
                                                                                                                                
MR. BULLOCK, in  response to questions, said  that in determining                                                               
whether the protection  afforded by the bill  applies, two points                                                               
need to  be considered:  whether  the taking of the  structure is                                                               
for the purpose of developing  a recreational facility or project                                                               
- if it is not, then  the protection afforded by the bill doesn't                                                               
apply;  and  whether  the  structure  being  taken  is  either  a                                                               
personal residence or a recreational  structure - if it is either                                                               
type  of  structure  and  the   taking  is  for  the  purpose  of                                                               
developing  a   recreational  facility   or  project,   then  the                                                               
protection afforded  by the bill  does apply.   In response  to a                                                               
further   question,  he   offered  his   understanding  that   AS                                                               
09.55.240(h)(5)  defines  the  term,  "recreational  facility  or                                                               
project" as a unit.                                                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG    added   his    understanding   that                                                               
"recreational facility or  project" is considered a  term of art,                                                               
and that  the courts would  rely on the  aforementioned statutory                                                               
definition.   He remarked  that it is  still unclear  whether the                                                               
performing  arts  center  or the  Morris  Thompson  Cultural  and                                                               
Visitors Center  would be considered  a recreational  facility or                                                               
project as defined under AS 09.55.240(h)(5).                                                                                    
                                                                                                                                
CHAIR  RAMRAS, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on HB 49.                                                                                      
                                                                                                                                
2:46:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 1, to                                                               
delete  the word  "of"  from  page 1,  line  13,  after the  word                                                               
"owner".  There being no objection, Amendment 1 was adopted.                                                                    
                                                                                                                                
2:46:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM moved  to report HB 49,  as amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying  zero  fiscal  note.    There  being  no  objection,                                                               
CSHB 49(JUD)  was  reported  from the  House  Judiciary  Standing                                                               
Committee.                                                                                                                      

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