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24th Legislature(2005-2006)

Bill Text 24th Legislature


00 Enrolled HB 318                                                                                                         
01 Limiting the exercise of eminent domain.                                                                                
02                           _______________                                                                               
03    * Section 1. The uncodified law of the State of Alaska is amended by adding a new section                          
04 to read:                                                                                                                
05       LEGISLATIVE INTENT AND FINDINGS. (a) The legislature finds that                                                   
06            (1)  the United States Supreme Court decision in Kelo v. City of New London,                                 
07 545 U.S. ___, 125 S.Ct. 2655, 162 L. Ed. 2d 439 (2005) demonstrates that an overly                                      
08 expansive application of eminent domain powers can be a threat to the property rights of all                            
09 private property owners;                                                                                                
10            (2)  it is necessary to provide clarification regarding the exercise of eminent                              
11 domain in the following two situations:                                                                                 
12                 (A)  the taking of private property if the purpose is to transfer the                                   
13       property to another private person for economic development;                                                      
14                 (B)  the taking of a landowner's personal residence to develop an indoor                                
15       or outdoor recreational facility or project.                                                                      
01       (b)  In recognizing that many public projects will have economic effects, the                                     
02 legislature intends by this Act not to                                                                                  
03            (1)  restrict those public uses already recognized in state law merely because                               
04 the project may have an associated economic effect; or                                                                  
05            (2)  provide an absolute bar on transfers of land to private entities, but to place                          
06 restrictions on when such transfers occur.                                                                              
07       (c)  In this section, "economic development" means development of property for a                                  
08 commercial enterprise carried on for profit or to increase tax revenue, tax base, or                                    
09 employment.                                                                                                             
10    * Sec. 2. AS 09.55.240(a) is amended to read:                                                                      
11            (a)  Except as provided in (d) and (e) of this section, the [THE] right of                               
12       eminent domain may be exercised for the following public uses:                                                    
13                 (1)  all public uses authorized by the government of the United States;                                 
14                 (2)  public buildings and grounds for the use of the state and all other                                
15       public uses authorized by the legislature of the state;                                                           
16                 (3)  public buildings and grounds for the use of an organized or                                        
17       unorganized borough, city, town, village, school district, or other municipal division,                           
18       whether incorporated or unincorporated; canals, aqueducts, flumes, ditches, or pipes                              
19       conducting water, heat, or gas for the use of the inhabitants of an organized or                                  
20       unorganized borough, city, town, or other municipal division, whether incorporated or                             
21       unincorporated; raising the banks of streams, removing obstructions from them, and                            
22       widening, deepening, or straightening their channels; and roads, streets, and alleys,                         
23       and all other public uses for the benefit of an organized or unorganized borough, city,                           
24       town, or other municipal division whether incorporated or unincorporated, or its                                  
25       inhabitants, which may be authorized by the legislature;                                                          
26                 (4)  wharves, docks, piers, chutes, booms, ferries, bridges of all kinds,                               
27       private roads, plant and turnpike roads, railroads, canals, ditches, flumes, aqueducts,                           
28       and pipes for public transportation, supplying mines and farming neighborhoods with                               
29       water, and draining and reclaiming land, and for floating logs and lumber on streams                              
30       not navigable, and sites for reservoirs necessary for collecting and storing water;                               
31                 (5)  roads, tunnels, ditches, flumes, pipes, and dumping places for                                     
01       working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of                           
02       tailings or refuse matter from mines; also an occupancy in common by the owners or                                
03       possessors of different mines of any place for the flow, deposit, or conduct of tailings                          
04       or refuse matter from their several mines, and sites for reservoirs necessary for                                 
05       collecting and storing water;                                                                                     
06                 (6)  private roads leading from highways to residences, mines, or farms;                                
07                 (7)  telephone lines;                                                                                   
08                 (8)  fiber-optic lines;                                                                             
09                 (9)  telegraph lines;                                                                               
10                 (10) [(9)]  sewerage of an organized or unorganized borough, city,                                  
11       town, village, or other municipal division, whether incorporated or unincorporated, or                            
12       a subdivision of it, or of a settlement consisting of not less than 10 families, or of                            
13       public buildings belonging to the state or to a college or university;                                            
14                 (11) [(10)]  tramway lines;                                                                         
15                 (12) [(11)]  electric power lines;                                                                  
16                 (13) [(12)]  for the location of pipelines for gathering, transmitting,                             
17       transporting, storing, or delivering natural or artificial gas or oil or any liquid or                            
18       gaseous hydrocarbons, including, but not limited to, pumping stations, terminals,                                 
19       storage tanks, or reservoirs, and related installations.                                                          
20    * Sec. 3. AS 09.55.240 is amended by adding new subsections to read:                                               
21            (d)  The power of eminent domain may not be exercised to acquire private                                     
22       property from a private person for the purpose of transferring title to the property to                           
23       another private person for economic development purposes. This subsection does not                                
24       apply to transfers of private property to another private person if one or more of the                            
25       following apply:                                                                                                  
26                 (1)  the landowner consents, either before or after a condemnation                                      
27       proceeding has been filed, to the use of the property for a private commercial                                    
28       enterprise or other economic development;                                                                         
29                 (2)  the private person has been expressly authorized by statute either to                              
30       exercise the power of eminent domain or to receive an interest in land acquired by the                            
31       exercise of eminent domain;                                                                                       
01                 (3)  the transferred property is used for a private way of necessity to                                 
02       permit essential access for extraction or use of resources;                                                       
03                 (4)  the acquisition is used, in part, for leasing property to a private                                
04       person that occupies a portion of public property or a public facility, including a                               
05       private business that occupies a portion of an airport, port, or public building;                                 
06                 (5)  the property is transferred to a person by oil and gas lease under                                 
07       AS 38.05.180;                                                                                                     
08                 (6)  the property is transferred to a common carrier.                                                   
09            (e)  The power of eminent domain may not be exercised for the purpose of                                     
10       developing a recreational facility or project if the property to be acquired includes an                          
11       individual landowner's personal residence or that portion of an individual's property                             
12       attached to and within 250 linear feet of an individual landowner's personal residence                            
13       unless the landowner consents either before or after a condemnation proceeding has                                
14       been filed.                                                                                                       
15            (f)  Notwithstanding the limitations on the power of eminent domain in (d) and                               
16       (e) of this section, the legislature may approve the exercise of eminent domain against                           
17       private property in an Act, the subject of which is limited to the transfer of the                                
18       property for a purpose otherwise restricted under (d) or (e) of this section.                                     
19            (g)  The power of eminent domain may only be delegated by statute.                                           
20            (h)  In this section,                                                                                        
21                 (1)  "common carrier" has the meaning given in AS 04.16.125;                                            
22                 (2)  "economic development" means development of property for a                                         
23       commercial enterprise carried on for profit or to increase tax revenue, tax base, or                              
24       employment;                                                                                                       
25                 (3)  "personal residence" means a structure that is the dwelling place of                               
26       an individual that                                                                                                
27                      (A)  must be used by the owner or beneficiary of a trust holding                                   
28            legal title to the structure as a dwelling unit, as opposed to a rental, storage, or                         
29            other commercial space;                                                                                      
30                      (B)  must be inhabited by the owner, prior owner, or beneficiary                                   
31            of a trust holding legal title to the structure for at least 90 days during the 12-                          
01            month period immediately before the date an action for the exercise of the                                   
02            power of eminent domain is filed;                                                                            
03                      (C)  must constitute an ordinary home for general living                                           
04            purposes, as opposed to a dwelling used only for seasonal recreational or                                    
05            temporary purposes; and                                                                                      
06                      (D)  may not have been constructed, placed, or occupied for the                                    
07            purpose of avoiding eminent domain proceedings;                                                              
08                 (4)  "private person" means a person that is not a public corporation as                                
09       defined in AS 45.77.020 or a government as defined in AS 11.81.900;                                               
10                 (5)  "recreational facility or project"                                                                 
11                      (A)  means a facility or project, the primary purpose of which is                                  
12            recreational;                                                                                                
13                      (B)  includes a park, trail or pedestrian pathway, greenbelt,                                      
14            amusement park, fresh water boat harbor, sports facility, playground,                                        
15            infrastructure, or other facility related to or in support of an indoor or outdoor                           
16            recreational facility or project;                                                                            
17                      (C)  does not include                                                                              
18                           (i)  a highway, sidewalk, or path within the right-of-way                                     
19                 of a highway;                                                                                           
20                           (ii)  a path, trail, or lane used as a safe route to a school                                 
21                 program;                                                                                                
22                           (iii)  a wayside or rest stop;                                                                
23                           (iv)  a development, the primary purpose of which is not                                      
24                 recreational, such as a path, trail, or lane developed to reduce                                        
25                 congestion, or to encourage use of an alternate, gas-saving mode of                                     
26                 transportation;                                                                                         
27                           (v)  a path or trail to or between villages or from a                                         
28                 village to a facility or resource;                                                                      
29                           (vi)  a stormwater retention or treatment facility or                                         
30                 wetland, habitat, or other acquisition required to obtain a permit for a                                
31                 highway, airport, or other public project;                                                              
01                           (vii)  a taking under AS 19.05.110, 19.05.120,                                                
02                 AS 19.22.020, AS 27.21.300, AS 35.20.040, 35.20.050, or                                                 
03                 AS 41.35.060;                                                                                           
04                           (viii)  a taking not prohibited by law before January 1,                                      
05                 2007, under AS 41.21; and                                                                               
06                           (ix)  a path, trail, road, or site for which no reasonable                                    
07                 alternative exists and which is necessary to preserve or establish public                               
08                 access to or along publicly owned land or water, if the use of the path,                                
09                 trail, road, or site itself is for transportation to or to facilitate use of                            
10                 publicly owned land or water.                                                                           
11    * Sec. 4. AS 29.35.030(a) is amended to read:                                                                      
12            (a)  Except as provided in (c) of this section, a [A] municipality may, only                             
13       within its boundaries, exercise the powers of eminent domain and declaration of taking                            
14       in the performance of a power or function of the municipality under the procedures set                            
15       out in AS 09.55.250 - 09.55.460. In the case of a second class city, the exercise of the                          
16       power of eminent domain or declaration of taking must be by ordinance that is                                     
17       submitted to the voters at the next general election or at a special election called for                          
18       that purpose. A majority of the votes on the question is required for approval of the                             
19       ordinance.                                                                                                        
20    * Sec. 5. AS 29.35.030 is amended by adding new subsections to read:                                               
21            (c)  The power of eminent domain may not be exercised to acquire private                                     
22       property from a private person for the purpose of transferring title to the property to                           
23       another private person for economic development, except as provided by                                            
24       AS 09.55.240(d)(1) - (6), and may not be exercised for purposes expressed in                                      
25       AS 09.55.240(e).                                                                                                  
26            (d)  In this section,                                                                                        
27                 (1)  "economic development" has the meaning given in AS 09.55.240;                                      
28                 (2)  "private person" has the meaning given in AS 09.55.240.                                            
29    * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to                          
30 read:                                                                                                                   
31       APPLICABILITY. This Act applies only to condemnation actions filed on or after the                                
01 effective date of this Act.                                                                                             
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