Section 09.55.240. Uses for which authorized; rights-of-way.

   (a) Except as provided in (d) and (e) of this section, the right of eminent domain may be exercised for the following public uses:
        (1) all public uses authorized by the government of the United States;
        (2) public buildings and grounds for the use of the state and all other public uses authorized by the legislature of the state;
        (3) public buildings and grounds for the use of an organized or unorganized borough, city, town, village, school district, or other municipal division, whether incorporated or unincorporated; canals, aqueducts, flumes, ditches, or pipes conducting water, heat, or gas for the use of the inhabitants of an organized or unorganized borough, city, town, or other municipal division, whether incorporated or unincorporated; raising the banks of streams, removing obstructions from them, and widening, deepening, or straightening their channels; and roads, streets, and alleys, and all other public uses for the benefit of an organized or unorganized borough, city, town, or other municipal division whether incorporated or unincorporated, or its inhabitants, which may be authorized by the legislature;
        (4) wharves, docks, piers, chutes, booms, ferries, bridges of all kinds, private roads, plant and turnpike roads, railroads, canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines and farming neighborhoods with water, and draining and reclaiming land, and for floating logs and lumber on streams not navigable, and sites for reservoirs necessary for collecting and storing water;
        (5) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines; also an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse matter from their several mines, and sites for reservoirs necessary for collecting and storing water;
        (6) private roads leading from highways to residences, mines, or farms;
        (7) telephone lines;
        (8) fiber-optic lines;
        (9) telegraph lines;
        (10) sewerage of an organized or unorganized borough, city, town, village, or other municipal division, whether incorporated or unincorporated, or a subdivision of it, or of a settlement consisting of not less than 10 families, or of public buildings belonging to the state or to a college or university;
        (11) tramway lines;
        (12) electric power lines;
        (13) for the location of pipelines for gathering, transmitting, transporting, storing, or delivering natural or artificial gas or oil or any liquid or gaseous hydrocarbons, including pumping stations, terminals, storage tanks, or reservoirs, and related installations.
   (b) The use of water for mining, power, and municipal purposes and the use of pole and power lines for telephone and telegraph wires, for aerial trams, and for the transmission of electric light and electric power, by whomever utilized, are each declared to be beneficial to the public and to be a public use within the provisions of AS 09.55.240 - 09.55.460. Rights-of-way across private property when they are necessary for the operation of the mine or other project in connection with which it is intended to be used may be condemned in the manner as for any other condemnation.  The right-of-way may extend only to a right-of-way along, upon, and across the surface of the land to be condemned and to a strip of the land of sufficient width to permit the construction on the land of a ditch, flume, pipeline, canal, or other means of conveying water as is adequate for the purposes intended, for the setting of poles or the construction of towers upon which to string wires for telephone and telegraph lines and lines for the transmission of electric light or power for the operation of aerial trams, and to permit maintaining the lines and keeping them in repair.
   (c)   [Repealed, Sec. 15 ch 59 SLA 1982]. 
   (d) The power of eminent domain may not be exercised to acquire private property from a private person for the purpose of transferring title to the property to another private person for economic development purposes. This subsection does not apply to transfers of private property to another private person if one or more of the following apply:
        (1) the landowner consents, either before or after a condemnation proceeding has been filed, to the use of the property for a private commercial enterprise or other economic development;
        (2) the private person has been expressly authorized by statute either to exercise the power of eminent domain or to receive an interest in land acquired by the exercise of eminent domain;
        (3) the transferred property is used for a private way of necessity to permit essential access for extraction or use of resources;
        (4) the acquisition is used, in part, for leasing property to a private person that occupies a portion of public property or a public facility, including a private business that occupies a portion of an airport, port, or public building;
        (5) the property is transferred to a person by oil and gas lease under AS 38.05.180;
        (6) the property is transferred to a common carrier.
   (e) The power of eminent domain may not be exercised for the purpose of developing a recreational facility or project if the property to be acquired includes an individual landowner's personal residence or recreational structure or that portion of an individual's property attached to and within 250 linear feet of an individual landowner's personal residence or recreational structure unless the landowner consents either before or after a condemnation proceeding has been filed.
   (f) Notwithstanding the limitations on the power of eminent domain in (d) and (e) of this section, the legislature may approve the exercise of eminent domain against private property in an Act, the subject of which is limited to the transfer of the property for a purpose otherwise restricted under (d) or (e) of this section.
   (g) The power of eminent domain may only be delegated by statute.
   (h) In this section,
        (1) "common carrier" has the meaning given in AS 04.16.125;
        (2) "economic development" means development of property for a commercial enterprise carried on for profit or to increase tax revenue, tax base, or employment;
        (3) "personal residence" means a structure that is the dwelling place of an individual that
             (A) must be used by the owner or beneficiary of a trust holding legal title to the structure as a dwelling unit, as opposed to a rental, storage, or other commercial space;
             (B) must be inhabited by the owner, prior owner, or beneficiary of a trust holding legal title to the structure for at least 90 days during the 12-month period immediately before the date an action for the exercise of the power of eminent domain is filed;
             (C) must constitute an ordinary home for general living purposes; and
             (D) may not have been constructed, placed, or occupied for the purpose of avoiding eminent domain proceedings;
        (4) "private person" means a person that is not a public corporation as defined in AS 45.77.020 or a government as defined in AS 11.81.900;
        (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;
        (6) "recreational structure" means a permanent structure that
             (A) is used by the owner or beneficiary of a trust holding legal title to the structure as a dwelling for seasonal recreational purposes, as opposed to a rental, storage, or other commercial space; and
             (B) may not have been constructed, placed, or occupied for the purpose of avoiding eminent domain proceedings.

Authorities

9.55.240; 9.55.260; 9.55.340; 9.55.390; 9.55.420; 9.55.450; 9.65.202;18.55.100;18.55.550;27.21.300;29.35.030;31.25.080;41.35.060;42.40.385;42.45.310

Notes

Recent Bills that will modify this

SB 35 2015 REVISOR'S BILL

References

AS 9.55.240 .240">Sec. 09.55.240. Uses for which authorized; rights-of-way.
AS 9.55.260 .260">Sec. 09.55.260. Private property subject to be taken.
AS 9.55.340 .340">Sec. 09.55.340. Defective title.
AS 9.55.390 .390">Sec. 09.55.390. Acquisition of easements and additional powers of the court to require surrender of possession to plaintiff.
AS 9.55.420 .420">Sec. 09.55.420. Declaration of taking by state or municipality.
AS 9.55.450 .450">Sec. 09.55.450. Right of entry and possession.
AS 9.65.202 .202">Sec. 09.65.202. Tort immunity for landowners' allowing recreational activity; adverse possession.
AS 18.55.100 Powers of corporation.
AS 18.55.550 Eminent domain.
AS 27.21.300 Acquisition of abandoned mine areas.
AS 29.35.030 Eminent domain.
AS 31.25.080 Powers and duties.
AS 41.35.060 Power to acquire historic, prehistoric, or archeological properties.
AS 42.40.385 Eminent domain.
AS 42.45.310 Acquisition of power project.

History

(Sec. 13.01 ch 101 SLA 1962; am Sec. 2 ch 72 SLA 1972; am Sec. 1 ch 62 SLA 1973; am Sec. 24 ch 3 FSSLA 1973; am Sec. 15 ch 59 SLA 1982; am Sec. 2, 3 ch 84 SLA 2006; am Sec. 1 - 3 ch 51 SLA 2009; am Sec. 5 ch 22 SLA 2015)