Legislature(2003 - 2004)

02/12/2004 03:35 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
       CSHB 230(STA)-POLITICAL SIGNS ON PRIVATE PROPERTY                                                                    
CHAIR  GARY  STEVENS  announced  CSHB   230(STA)  to  be  up  for                                                               
consideration.  The bill  relates to  political signs  on private                                                               
property. He stated he did not  intend to move the bill that day.                                                               
He asked Mr. Larkin to step forward and introduce the bill.                                                                     
TODD  LARKIN, staff  to Representative  Jim  Holm, described  the                                                               
legislation as follows:                                                                                                         
     HB 230,  we brought  it forward  because we  thought it                                                                    
     was  an  issue  of  free  speech  that  the  state  had                                                                    
     overlooked in  its zeal to keep  the federal government                                                                    
     happy  and comply  with what  it  thought were  federal                                                                    
     requirements.  We've  talked  to  the  Federal  Highway                                                                    
     Administration and we found  that we didn't necessarily                                                                    
     have to make all the restrictions we were making.                                                                          
MR. LARKIN read the following from the sponsor statement:                                                                       
     The ability  of citizens to express  political opinion,                                                                    
     even to advocate for the  same, is a fundamental right.                                                                    
     This basic right becomes even  more pronounced when the                                                                    
     expression is made on one's own private property.                                                                          
     Currently, state law prohibits  the posting of campaign                                                                    
     or  political  signs  within  road  view  or  660  feet                                                                    
     (whichever  is  greater).  This  applies  to  federally                                                                    
     funded roads and state  roads. The restriction includes                                                                    
     private property. If  you or I were to erect  a "NO WAR                                                                    
     IN IRAQ" or "SUPPORT THE  TROOPS" sign today within the                                                                    
     distance  limits, we  would be  in  violation of  state                                                                    
     law.  The  reasoning  for   this  restriction  has  its                                                                    
     genesis in  the Federal  Highway Beautification  Act of                                                                    
     '65.  It has  been interpreted  to say  that without  a                                                                    
     sign  restriction, political  or otherwise,  Alaska may                                                                    
     lose   federal  highway   funds   for   being  out   of                                                                    
     compliance.  Correspondence  with the  Federal  Highway                                                                    
     Administration  on  this  subject   shows  this  to  be                                                                    
     Similar   restrictions,    contained   in   city/county                                                                    
     ordinance or state law, have  been struck down in three                                                                    
     out of  four state supreme courts:  Washington, Oregon,                                                                    
     Colorado,  and California.  A  U.S.  district court  in                                                                    
     Missouri found in '93 that  very few restrictions could                                                                    
     be placed  on signage erected on  private property. The                                                                    
     U.S.  Supreme  court heard  a  case  in '94  concerning                                                                    
     private property and upheld the  rights of the property                                                                    
     owner.  Further, there  is  a  landslide of  peripheral                                                                    
     case  law relating  to this  subject.  If AS  19.25.105                                                                    
     stands as currently written, the  state of Alaska is in                                                                    
     danger of litigation and certain defeat.                                                                                   
     We have a  country, which is based on  the premise that                                                                    
     all  powers   reside  in  the   people  and   that  the                                                                    
     government derives  its authority  from the  consent of                                                                    
     the governed.  Hence, we the  people have the  right to                                                                    
     advocate or  choose who governs  us. This  right should                                                                    
     have little or no restriction.                                                                                             
     This law  needs to be  amended, first to save  the time                                                                    
     and  expense   to  the  individual  citizen   who  must                                                                    
     challenge the  current restriction of free  speech, and                                                                    
     second to save  the state the cost of  defense plus the                                                                    
     likely legal fees awarded to a victorious citizen.                                                                         
MR. LARKIN  stated that the sponsor  had no objection to  the two                                                               
proposed amendments.  Federal highways recommended  the amendment                                                               
to  tightly  define  the  intent   of  the  statement  "political                                                               
noncommercial  sign" so  it  wouldn't  allow indirect  commercial                                                               
advertising. Department of Transportation  asked that it be clear                                                               
in statute  that they retain all  authority in rights of  way and                                                               
department easements. The  bill covers the land from  the edge of                                                               
that line out to 660 feet.                                                                                                      
SENATOR  COWDERY  asked   if  the  state  is   currently  out  of                                                               
compliance and has any federal funding been lost.                                                                               
MR. LARKIN  replied the state has  not lost any funding.  The one                                                               
state  that did  lose funding  had the  money refunded  once they                                                               
became compliant and it wasn't related to this issue.                                                                           
SENATOR COWDERY asked  if there is a size limitation  and used an                                                               
Acme fence sign as an example.                                                                                                  
MR.  LARKIN  replied   he  would  defer  to   the  Department  of                                                               
Transportation  and  Public   Facilities  (DOT/PF),  but  current                                                               
statutes deal with that type  of example. This issue is something                                                               
CHAIR GARY STEVENS  noted Nona Wilson from DOT/PF  was present to                                                               
answer questions.                                                                                                               
SENATOR  COWDERY  remarked  DOT/PF  expended  little  enforcement                                                               
effort in  the last  governor's election,  but there  have always                                                               
been games associated  with the placement of  political signs. He                                                               
asked what  provisions there would  be for enforcement  and would                                                               
four small grouped signs be the same as one large sign.                                                                         
MR. LARKIN reported  that one of the first  restrictions they set                                                               
on the  new exception to the  660-foot rule is addressed  on page                                                               
2, line  15-16. It  says, "individual or  conjoined signs  do not                                                               
exceed 32 square feet total per side;"                                                                                          
SENATOR COWDERY announced  he places his political  signs on each                                                               
of his driveways. One sign is  placed so that traffic flowing out                                                               
of Anchorage can  view it and the other is  placed to accommodate                                                               
incoming  traffic. He  asked if  this would  be illegal  since he                                                               
owns two lots or is it a grey area.                                                                                             
MR.  LARKIN called  political  signs a  super  protected form  of                                                               
speech. This  legislation makes it clear  that you may not  be on                                                               
the  land that  DOT/FP controls,  but if  you're on  your private                                                               
property from the line where DOT/FP  control stops out to the 660                                                               
foot beautification  margin, his reading  and the intent  is that                                                               
the signs are legal.                                                                                                            
SENATOR  COWDERY  then  said  he   would  like  to  have  a  site                                                               
CHAIR  GARY   STEVENS  labeled   the  proposed   amendment  \U.3,                                                               
amendment  number 1  and the  proposed amendment  \U.1, amendment                                                               
number 2 then asked Mr. Larkin to explain amendment number 1.                                                                   
                      A M E N D M E N T 1                                                                                   
OFFERED IN THE SENATE                                                                                                           
TO:  CSHB 230(STA)                                                                                                              
Page 2, line 18, following "hazard;":                                                                                       
                    "(C)  the signs are located outside of                                                                  
          department easements;"                                                                                            
Page 2, line 19:                                                                                                                
     Delete "(C)"                                                                                                           
     Insert "(D)"                                                                                                           
                      A M E N D M E N T 2                                                                                   
OFFERED IN THE SENATE                                                                                                           
     TO:  CSHB 230(STA)                                                                                                         
Page 1, following line 2:                                                                                                       
     Insert a new bill section to read:                                                                                         
   "* Section  1.  The uncodified  law of the State  of Alaska is                                                             
amended by adding a new section to read:                                                                                        
     INTENT.  It is the intent of the Alaska State Legislature                                                                  
that political signs on private  property not pose an opportunity                                                               
for indirect commercial advertising."                                                                                           
Page 1, line 3:                                                                                                                 
     Delete "Section 1"                                                                                                       
     Insert "Sec. 2"                                                                                                          
     Renumber the following bill section accordingly.                                                                           
MR. LARKIN replied, "The original  suggestion from DOT was to say                                                               
that  all  of  this  occurs  outside  of  [the]  right-of-way  or                                                               
department easements."  He continued to say  that AS 19.25.105(a)                                                               
speaks to  outside the  right-of-way and  they are  expanding the                                                               
language slightly to include easements  in an effort to clear any                                                               
ambiguity  regarding easement  versus  right-of-way because  "DOT                                                               
uses their easements in the exact same fashion."                                                                                
SENATOR HOFFMAN  made a point  of clarification saying,  "DOT has                                                               
the right-of-way. They don't own it  we own it; the state owns it                                                               
so we decide what happens there."                                                                                               
MR. LARKIN agreed that Senator Hoffman is correct.                                                                              
SENATOR   COWDERY  touched   on  signs   placed  in   windows  in                                                               
subdivisions  to emphasize  the point  that enforcement  might be                                                               
MR. LARKIN  noted he  included a  number of  court cases  on this                                                               
detail in the packets. He  assured members that there wouldn't be                                                               
ambiguity when referring to the precedents.                                                                                     
SENATOR HOFFMAN  asked whether the two  proposed amendments might                                                               
not open the door to legal challenges.                                                                                          
MR. LARKIN  replied his office  holds the opinion that  the State                                                               
of Alaska  and DOT does not  and, even with the  amendments, will                                                               
not have  the constitutional authority to  restrict that specific                                                               
form of speech.                                                                                                                 
CHAIR GARY STEVENS asked Senator Guess if she had any questions.                                                                
SENATOR  GRETCHEN GUESS,  attending  via teleconference,  thanked                                                               
him for checking and said she had no questions at that time.                                                                    
5:00 pm                                                                                                                       
NONA  WILSON,  legislative  liaison  with  DOT/PF,  prefaced  her                                                               
testimony by saying Rick Kauzlarich who handles all rights-of-                                                                  
way and easement  issues was in Anchorage and  although she would                                                               
try to answer all questions, she was not an expert.                                                                             
CHAIR GARY  STEVENS asked  if the  proposed amendments  came from                                                               
the department.                                                                                                                 
MS.  WILSON   advised  that  the   department  reviewed   HB  230                                                               
thoroughly  and  requested  including  amendment  number  1,  23-                                                               
LS078\U.3,  to make  a clear  line of  demarcation where  private                                                               
property stops  and the DOT  easement or right-of-way  starts and                                                               
who has  the say when you  have a political sign.  She suggested,                                                               
"This is mostly just a housekeeping point."                                                                                     
CHAIR GARY STEVENS asked for  verification that even though it is                                                               
private property, the  intention is that no signs  are allowed on                                                               
the department easement.                                                                                                        
MS. WILSON confessed it gets fuzzy  for her at this point, so she                                                               
used Mr. Kauzlarich's example.                                                                                                  
     Say you're  going down  Egan Expressway...and  it comes                                                                    
     up that we  [DOT] need to build a sidewalk.  It just so                                                                    
     happens  that someone's  private  property abuts  right                                                                    
     where we want  to build. So, I believe,  an easement in                                                                    
     an  agreement between  the private  property owner  and                                                                    
     say the  Department of  Transportation that  says okay,                                                                    
     you can  have this ten  feet of my private  property to                                                                    
     have a sidewalk  on it. When that  happens, DOT assumes                                                                    
     the authority over that ten  feet and everything behind                                                                    
     it is up to the private property owner.                                                                                    
MS. WILSON  said she  asked Mr.  Kauzlarich whether  the property                                                               
owner could  place a sign just  beyond the sidewalk and  was told                                                               
the property  owner could do  that. She admitted she  didn't know                                                               
how many signs would be allowed or the size requirements either.                                                                
TAPE 04-6, SIDE A                                                                                                             
5:10 pm                                                                                                                       
SENATOR COWDERY said  his comment about signs  in windows stemmed                                                               
from the fact that federal funds  might be used on roads in front                                                               
of a house with a sign in the window.                                                                                           
MS.  WILSON said  she hasn't  considered that  problem since  his                                                               
question was the first to raise that point.                                                                                     
SENATOR  COWDERY  followed  up  to ask  about  whether  this  has                                                               
anything to do with utility easements that are not owned by DOT.                                                                
MS. WILSON didn't care to speculate,  but agreed to get an answer                                                               
for him.                                                                                                                        
SENATOR COWDERY  noted that  the property owner  pays taxes  on a                                                               
utility  easement,  but  they  can't  use  that  portion  of  the                                                               
MS. WILSON said that would be a municipal issue.                                                                                
SENATOR BERT  STEDMAN asked if  he heard  her say that  the state                                                               
would have  more authority over  an easement than  a municipality                                                               
would have.                                                                                                                     
MS.  WILSON understood  that  when an  easement  is granted,  the                                                               
party that  is granted the  easement has control of  that portion                                                               
of the property.  "If DOT had an easement with  the utility, that                                                               
chunk of  land would  be under DOT's  control. That  wouldn't say                                                               
that  it   would  keep  maintenance   operators  and   maybe  the                                                               
municipality from  going on  there and  doing their  work..." She                                                               
continued to say that there might by an exception for utilities.                                                                
SENATOR STEDMAN  said that  is a  point to  clarify and  he would                                                               
appreciate knowing  a bit  more about the  rights granted  on the                                                               
issuance of an easement.                                                                                                        
MS. WILSON admitted  that was a good question and  she would talk                                                               
to Mr. Kauzlarich.                                                                                                              
CHAIR GARY  STEVENS announced that  even though he  didn't intend                                                               
to  move the  bill  then,  he would  like  to  adopt amendment  1                                                               
because it offers some clarification.                                                                                           
SENATOR   HOFFMAN  raised   the  question   of  whether   or  not                                                               
"department" is defined in the statute.                                                                                         
MR.  LARKIN  conceded  he was  wondering  whether  the  amendment                                                               
should specify the Department of Transportation.                                                                                
CHAIR GARY  STEVENS thought that  was an  important clarification                                                               
and asked for a motion.                                                                                                         
SENATOR COWDERY said he would move the amendment.                                                                               
CHAIR GARY STEVENS said that would  be as amended, which is, "the                                                               
signs  are  located  outside   of  Department  of  Transportation                                                               
                      A M E N D M E N T 1                                                                                   
         [AS AMENDED BY SENATE STATE AFFAIRS COMMITTEE]                                                                         
OFFERED IN THE SENATE                                                                                                           
TO:  CSHB 230(STA)                                                                                                              
Page 2, line 18, following "hazard;":                                                                                       
                    "(C)  the signs are located outside of                                                                  
          Department of Transportation easements;"                                                                          
Page 2, line 19:                                                                                                                
     Delete "(C)"                                                                                                           
     Insert "(D)"                                                                                                           
MS. WILSON agreed with the wording.                                                                                             
CHAIR GARY  STEVENS asked  if there was  objection and  there was                                                               
none.  He stated  he would  hold  proposed amendment  2 until  it                                                               
could be discussed further.                                                                                                     
MR. LARKIN advised  that proposed amendment 2  is a clarification                                                               
requested  by both  DOT and  Federal  Highway Administration.  It                                                               
states the  Legislature's intent that political  signs on private                                                               
property   are  not   providing  an   opportunity  for   indirect                                                               
commercial advertising.                                                                                                         
He reported the sponsor supports that proposed amendment.                                                                       
CHAIR GARY  STEVENS replied the  committee would hold  that until                                                               
another hearing.                                                                                                                
There were no further questions or comments.                                                                                    
CHAIR GARY STEVENS  held CSHB 230 in committee  and adjourned the                                                               
meeting at 5:20 pm                                                                                                              

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