Chapter 16.08
TIDELAND LEASES1

Sections:

16.08.010    Availability of lands for lease.

16.08.020    Application.

16.08.030    Costs of transaction – Deposits.

16.08.040    Unauthorized use of lands deemed trespass.

16.08.050    Classification and land use plan.

16.08.060    Lease to governmental agencies.

16.08.070    Classification changes – Renewal lease.

16.08.080    Examination of development plans and lease applications for lease.

16.08.090    Term of lease.

16.08.100    Appraisal – Required improvements.

16.08.110    Payment of annual rentals.

16.08.120    Leasing procedure – Auction – Payments.

16.08.130    Public notice.

16.08.140    Auction – Receipt of bid.

16.08.150    Auction – High bidder other than applicant.

16.08.160    Auction – Appeals.

16.08.170    Completion of bid.

16.08.180    Issuance of lease.

16.08.190    Limitations and conditions of lease.

16.08.200    Proper location of improvements on leased land.

16.08.210    Utilization in compliance with lease and regulations.

16.08.220    Rental adjustments.

16.08.230    Subleasing.

16.08.240    Assignment.

16.08.250    Modification – Extension of term.

16.08.260    Cancellation – Forfeiture.

16.08.270    Notice or demand – Method of giving.

16.08.280    Notices to mortgagee or lienholder.

16.08.290    Entry and reentry by lessor.

16.08.300    Re-lease or other disposition.

16.08.310    Forfeit of rental upon termination.

16.08.320    Nonwaiver of terms or conditions upon certain actions.

16.08.330    Expiration of lease – Surrender of lands.

16.08.340    Expiration of lease – Renewals.

16.08.350    Expiration or termination of lease – Removal or reversion of improvements.

16.08.360    Sanitary maintenance required.

16.08.370    Compliance with building and zoning regulations required.

16.08.380    Fire protection.

16.08.390    Right of entry for inspection.

16.08.400    Use of minerals and resources on leased lands.

16.08.410    Protection of public interest.

16.08.420    Permits for five years or less.

16.08.430    Sale of tide and submerged lands.

16.08.010 Availability of lands for lease.

All tide and submerged land within the limits of the borough to which the borough holds title and which the borough assembly has classified for leasing may be leased for surface use only as provided in this chapter. [Ord. 245 § 5, 1969; prior code § 45.40.010.]

16.08.020 Application.

A. All applications for lease of tidelands shall be filed with the borough clerk on forms provided by him and available at the municipal building. Only forms completed in full and accompanied by a $10.00 filing fee will be accepted for filing. Filing fees are not refundable.

B. With every application the applicant shall submit a development plan showing and stating the following:

1. The purpose of the proposed lease;

2. The use, value and nature of improvements to be constructed;

3. The type of construction;

4. Date construction is estimated to commence and be completed;

5. Whether the intended use complies with the zoning ordinance and comprehensive plan of the borough. [Ord. 245 § 5, 1969; prior code § 45.40.020.]

16.08.030 Costs of transaction – Deposits.

A. All applications filed with the borough clerk will be forwarded to the borough engineer or other designated official to determine his estimate of costs required to handle the application, including but not limited to one or more of the following: survey, appraisal, and advertising of the proposed lease of the area under application.

B. Upon determination of the estimated costs, the official shall notify the applicant in writing of such costs and a deposit thereof must be made within 30 calendar days after notice is mailed. Failure of applicant to pay the deposit shall result in the application being cancelled. If the applicant does not accept a lease within 30 calendar days after it is offered to the applicant, all deposit money spent or encumbered for survey, appraisal or advertising shall be forfeited, and the balance, if any, shall be returned to the applicant.

C. If the land applied for upon which deposit for costs is made is leased to another, the latter shall be required to pay actual costs of survey, appraisal and advertising, and the original deposit shall be returned to the depositor.

D. The lessee shall be required to pay any excess of costs over deposits and, where the deposit exceeds actual costs, the excess shall be credited to present or future rents under the lease.

E. All survey, appraisal and advertising shall be performed only under the control of the borough, and any such work done without such control will not be accepted by the borough. [Ord. 245 § 5, 1969; prior code § 45.40.030.]

16.08.040 Unauthorized use of lands deemed trespass.

The filing of an application for a lease shall give the applicant no right to a lease or to the use of the land applied for. Any use not authorized by a lease shall constitute a trespass against the borough. [Ord. 245 § 5, 1969; prior code § 45.40.040.]

16.08.050 Classification and land use plan.

Before accepting applications to lease tidelands the area involved shall have first been classified for leasing and for particular land uses and a land use plan of the area prepared and publicly posted in the office of the borough clerk for a period of not less than 10 calendar days. The land use plan shall be prepared and approved by the assembly prior to posting. No lease shall be granted except for the particular use for which the tract is classified. [Ord. 245 § 5, 1969; prior code § 45.40.050.]

16.08.060 Lease to governmental agencies.

The lease of any borough tidelands may be made to any state or federal agency or political subdivision of the state for less than the appraised value, and for a consideration to be determined by the assembly to be in the best interests of the borough. [Ord. 245 § 5, 1969; prior code § 45.40.060.]

16.08.070 Classification changes – Renewal lease.

The classification of a tract of leased land may be changed only by the assembly on application of the lessee. No renewal lease may be issued until the proposed renewal has been reviewed and approved by the assembly. [Ord. 245 § 5, 1969; prior code § 45.40.070.]

16.08.080 Examination of development plans and lease applications for lease.

A. Upon receipt of a private or public tidelands lease application or a development plan under WMC 16.04.070, the borough clerk shall transmit same directly to the port commission and the planning and zoning commission for preliminary examination, compliance with applicable codes, compatibility with existing and prospective uses, feasibility of the project and any other feature or aspect which the port commission and the planning and zoning commission in their independent discretion wish to undertake. The commissions’ jurisdiction shall be limited to the power of investigations, findings of fact on the subject matter, and the submission of recommendations to the assembly. The commissions’ findings and recommendations need not be submitted in formal form, but their reports shall be prepared and submitted within one month following submission of the tidelands lease application or development plan to them.

B. The assembly may, at any stage of the proceedings, refer the tidelands lease application to the port commission and/or planning and zoning commission for preliminary examination and/or further recommendations in the manner of the preceding paragraph. Neither the assembly nor the applicant are bound by the port commission’s or the planning and zoning commission’s findings of fact and recommendations to the assembly. [Ord. 656 § 6, 1999; Ord. 406 § 4, 1980; Ord. 361 § 5, 1977; prior code § 45.40.075.]

16.08.090 Term of lease.

Leases may be issued for a term of not less than five nor more than 55 years. The applicant shall state in his application the term desired. In determining whether to grant a lease for the requested term, the assembly shall consider the nature, extent and cost of the improvements which the applicant agrees, as a condition of the lease, to construct thereon, the value of the applicant’s proposed use to the economy of the borough, and other relevant factors. [Ord. 245 § 5, 1969; prior code § 45.40.080.]

16.08.100 Appraisal – Required improvements.

A. No tidelands shall be leased, or a renewal lease issued therefor, unless the same has been appraised within six months prior to the date fixed for beginning of the term of the lease or renewal lease. No land shall be leased for an annual rent less than six percent of the appraised value of the land and any improvements thereon owned by the borough.

B. Upon the filing of an application for a lease of a parcel of classified tidelands and the deposit of the costs estimated by the borough clerk, the borough assessor shall cause the tract, and any improvements thereon owned by the borough, to be appraised at their fair market value. The appraisal shall be transmitted by the assessor to the assembly which shall review the same and determine the appraised value of the tract and improvements thereon owned by the borough. Facilities for supplying utility services shall not be considered as such improvements. The assembly shall determine the annual rental as six percent of the appraised value and shall determine any limitations, reservations, requirements or special conditions to be included in the lease.

C. Each lease shall contain a requirement that the lessee construct improvements suitable for the use of which the land is classified of a specified minimum value within two years from the date of the lease and that a Corps of Engineers permit shall be obtained prior to construction when required. Improvements in the limited context of the tidelands leasing provisions may include a parking lot with fill or surfacing, drainage, ingress and egress as the assembly shall require. The applicant shall be notified of the amount of the minimum annual rental and the value of the improvements required to be constructed thereon. [Ord. 361 § 5, 1977; prior code § 45.40.090.]

16.08.110 Payment of annual rentals.

Unless the lease specifies otherwise, annual rentals of $250.00 and less shall be paid annually, in advance; rentals of an amount between $251.00 and $500.00 shall be paid in two equal installments every six months; annual rentals of an amount between $501.00 and $1,000 shall be paid in advance every calendar quarter; and annual rentals exceeding $1,000 shall be paid in advance each calendar month. [Ord. 245 § 5, 1969; prior code § 45.40.100.]

16.08.120 Leasing procedure – Auction – Payments.

A. Leases of land with an initial annual minimum rental of less than $100.00 shall be issued by the borough clerk after being so instructed by the assembly and without the necessity of a public auction.

B. All leases having a computed annual minimum rental of more than $100.00 shall be offered at public auction.

C. All public auctions of tidelands in the borough shall be held in the assembly chambers, municipal building, by the mayor or, in his absence, the borough clerk. At the completion of the auction of each tract of land, said official shall indicate the apparent high bidder. The apparent high bidder shall thereupon deposit with the official the portion of the annual rental then due together with the unpaid costs of survey, appraisal and advertising.

D. All payments must be made in cash, money order, check or cashier’s check, or any combination thereof within one hour. [Ord. 245 § 5, 1969; prior code § 45.40.110.]

16.08.130 Public notice.

Public notice of lease of land is required to be given under the provisions of this chapter. Thirty days’ notice shall be given by publishing notice thereof in a newspaper of general circulation published in the borough once a week for three weeks prior to final action of public auction. The notice must contain a brief description of the land, its area and general location, proposed use, term, computed annual minimum rental, limitations if any, and time and place set for the lease auction, if auction is required, together with the name or names of the record owner or owners of the adjacent upland. [Ord. 245 § 5, 1969; prior code § 45.40.120.]

16.08.140 Auction – Receipt of bid.

Upon deposit of the required sum by the apparent high bidder, the official conducting the auction shall thereupon issue to the successful bidder a receipt for the required sum. [Ord. 245 § 5, 1969; prior code § 45.40.130.]

16.08.150 Auction – High bidder other than applicant.

Where the apparent high bidder is not the same as the person who filed the original application, then the high bidder will be required to submit all information as submitted by all other applicants pursuant to this chapter. The apparent high bid, complete with application and other required information, shall be submitted to the assembly for acceptance or rejection of the lease. The assembly, at any stage of the proceeding, may refer the tidelands application to the planning and zoning commission pursuant to WMC 16.08.080. [Ord. 361 § 5, 1977; prior code § 45.40.135.]

16.08.160 Auction – Appeals.

An aggrieved bidder may appeal the determination of the apparent high bidder to the assembly within five days (excluding Saturday and Sunday) following such determination. Such appeals must be in writing and contain a short statement of the grounds for appeal and rule thereon. The assembly’s decision shall be final, but without prejudice to any other right or rights the aggrieved bidder may have. [Ord. 245 § 5, 1969; prior code § 45.40.140.]

16.08.170 Completion of bid.

Following the appeal period or the assembly’s ruling, the borough clerk shall notify the successful bidder that the borough is prepared to issue an appropriate lease. The bidder shall be given 15 calendar days from date of mailing the notice in which to remit to the borough clerk any bid balance or any other sums that may be due and sign the lease. Failure to do so shall result in forfeiture of any and all rights previously acquired in the proposed lease and, in addition, any moneys paid or deposited with the borough shall be forfeited. [Ord. 245 § 5, 1969; prior code § 45.40.150.]

16.08.180 Issuance of lease.

After expiration of the five-day appeal period, or after the ruling on the appeal to the assembly, the borough clerk shall execute a lease containing such terms as the assembly by its determination shall establish. [Ord. 245 § 5, 1969; prior code § 45.40.160.]

16.08.190 Limitations and conditions of lease.

All leases shall be issued on standard forms approved by the assembly, but shall contain such limitations, reservations, requirements or special conditions as the assembly has determined, including requirements for improvements of a specified value to be constructed or located on the land within two years from the date of the lease. [Ord. 361 § 5, 1977; prior code § 45.40.170.]

16.08.200 Proper location of improvements on leased land.

It shall be the responsibility of the lessee to properly locate his improvements on the leased land within the one-year period. It is unlawful to encroach on other lands of the borough or on lands owned or leased by another, and violation shall constitute a misdemeanor. [Ord. 245 § 5, 1969; prior code § 45.40.180.]

16.08.210 Utilization in compliance with lease and regulations.

Leased tidelands shall be utilized for purposes within the scope of the land use classification, the terms of the lease, and in conformity with the ordinances of the borough, including any zoning ordinance. Utilization or development for other than the allowed uses shall constitute a violation of the lease and subject the lease to cancellation at any time. The terms of this chapter are made a part of all leases and any violation thereof shall be grounds for cancellation of any leases. [Ord. 245 § 5, 1969; prior code § 45.40.190.]

16.08.220 Rental adjustments.

The annual rental payable pursuant to any lease issued under the provisions of this chapter shall be subject to adjustment by the assembly on the fifth anniversary of the date of the lease and each anniversary date thereafter which is divisible by the number five. All adjusted rates shall be computed at six percent on the fair market value of the land and improvements owned by the borough and leased thereunder. Such value shall be determined by an appraisal made by the borough assessor and reviewed and determined by the assembly as provided in WMC 16.08.100. [Ord. 245 § 5, 1969; prior code § 45.40.200.]

16.08.230 Subleasing.

Any lessee may sublease lands or any part thereof leased to him under this chapter; provided, that the proposed lessee first obtains the approval of the borough assembly to such sublease. Subleases shall be in writing and be subject to the terms and conditions of the original lease. A copy of the sublease shall be filed with the borough clerk. [Ord. 245 § 5, 1969; prior code § 45.40.210.]

16.08.240 Assignment.

Any lessee may assign the lease; provided, that the proposed assignment shall be first approved by the assembly. The assignee shall be subject to all of the provisions of the lease and the assignor shall not be relieved of his obligations thereunder. [Ord. 361 § 5, 1977; prior code § 45.40.220.]

16.08.250 Modification – Extension of term.

A. No lease may be modified orally or in any manner other than by an agreement in writing signed by all parties in interest or their successors in interest.

B. In the event any lessee requires an extension of lease term by reason of the requirements of any mortgagee or lending institution, or the requirements of any government regulatory agency or government agencies insuring or in any way guaranteeing improvements or purchase loans, upon application to the assembly and a showing of good cause, the assembly shall liberally grant extensions of lease terms by modification of existing leases. [Ord. 245 § 5, 1969; prior code § 45.40.230.]

16.08.260 Cancellation – Forfeiture.

A. Leases in good standing may be cancelled in whole or in part at any time upon mutual written agreement by the lessee and the assembly.

B. Any lease of lands used for an unlawful purpose may be terminated by the assembly.

C. If the lessee defaults in the performance or observance of any of the lease terms, covenants, or stipulations, or the terms of this chapter or any of the ordinances of the borough, and the default continues for 30 calendar days after service of written notice by the borough on the lessee without remedy by the lessee of the default, the borough assembly shall take such action as is necessary to protect the rights and best interests of the borough, including the exercise of any or all rights after default permitted by the lease. No improvements may be removed by the lessee or any other person during any time the lessee is in default. [Ord. 245 § 5, 1969; prior code § 45.40.240.]

16.08.270 Notice or demand – Method of giving.

A. Any notice or demand which, under the terms of a lease or under any statute must be given or made by the parties thereto, shall be in writing, and be given or made by registered or certified mail, addressed to the other party at the address of record. However, either party may designate in writing such new or other address to which such notice or demand shall thereafter be so given, made or mailed.

B. A notice given under this chapter shall be deemed delivered when deposited in a United States general or branch post office enclosed in a registered or certified mail prepaid wrapper or envelope addressed as provided in this section. [Ord. 245 § 5, 1969; prior code § 45.40.250.]

16.08.280 Notices to mortgagee or lienholder.

In the event of cancellation or forfeiture of a lease for cause, the holder of a properly recorded mortgage of the improvements on the land and every sublease thereof shall be given a duplicate copy of any notice of default in the same manner as notice is given the lessee, provided such mortgagee or sublessee has given the borough clerk notice of such mortgage or sublease. [Ord. 245 § 5, 1969; prior code § 45.40.260.]

16.08.290 Entry and reentry by lessor.

In the event the lease is terminated, or in the event that the demised lands or any part thereof are abandoned by the lessee during the term, the lessor or its agents, servants, or representative may, immediately or any time thereafter, reenter and resume possession of the lands or such part thereof and remove all persons and property therefrom either by summary proceedings or by a suitable action or proceeding at law without being liable for any damages therefor. No reentry by the lessor shall be deemed an acceptance of a surrender of the lease. [Ord. 245 § 5, 1969; prior code § 45.40.270.]

16.08.300 Re-lease or other disposition.

In the event that a lease is terminated the borough assembly may offer the lands for lease or other appropriate disposal pursuant to the provisions of this chapter. [Ord. 245 § 5, 1969; prior code § 45.40.280.]

16.08.310 Forfeit of rental upon termination.

In the event that the lease should be terminated because of any breach by the lessee, as provided in this chapter, the annual rental payment last made by the lessee shall be forfeited and retained by the lessor. [Ord. 245 § 5, 1969; prior code § 45.40.290.]

16.08.320 Nonwaiver of terms or conditions upon certain actions.

The receipt of rent by the lessor with knowledge of any breach of the lease by the lessee or of any default on the part of the lessee in observance or performance of any of the conditions or covenants of the lease shall not be deemed to be a waiver of any provision of the lease. No failure on the part of the lessor to enforce any covenant or provision therein contained, nor any waiver of any right thereunder by the lessor unless in writing, shall discharge or invalidate such covenants or provisions or affect the right of the lessor to enforce the same in the event of any subsequent breach or default. The receipt, by the lessor, of any other sum of money after the termination, in any manner, of the term demised, or after the giving by the lessor of any notice thereunder to effect such termination, shall not reinstate, continue, or extend the resultant term therein demised, or destroy or in any manner impair the efficacy of any such notice or termination as may have been given thereunder by the lessor to the lessee prior to the receipt of any such sum of money or other consideration, unless so agreed to in writing and signed by the lessor. [Ord. 245 § 5, 1969; prior code § 45.40.300.]

16.08.330 Expiration of lease – Surrender of lands.

Unless the lease is renewed or sooner terminated as provided in this chapter, the lessee shall peaceably and quietly leave, surrender and yield up unto the lessor all of the leased land on the last day of the term of the lease. [Ord. 245 § 5, 1969; prior code § 45.40.310.]

16.08.340 Expiration of lease – Renewals.

A. Upon the expiration of the term of any lease, or the cancellation of a lease by mutual consent of all parties thereto, the assembly may grant a new lease to the lessee or his assignee who owns valuable improvements thereon, without offering the lease at auction, provided:

1. The lessee or his assignee makes written application therefor at least 60 days prior to such termination.

2. The lessee is not in default under the lease.

3. The use to which the land is to be put is compatible with the current use classification and zoning provisions of the borough ordinances on that subject.

4. Mutually agreeable terms are negotiated by the assembly and the prospective lessee.

B. Such lease shall be for an annual rental equal to the percent of the appraised value of the land which is then being charged for new leases and shall be subject to adjustment on every fifth anniversary. [Ord. 245 § 5, 1969; prior code § 45.40.320.]

16.08.350 Expiration or termination of lease – Removal or reversion of improvements.

A. Improvements owned by a lessee may, within 60 calendar days after the termination of the lease, be removed by him; provided, that the borough assembly may extend the time for removing such improvements in cases where hardship is proven. All periods of time granted the lessees to remove improvements are subject to the lessees paying to the borough pro rata lease rentals for said periods.

B. If any improvements and/or chattels are not removed within the time allowed, such improvements and/or chattels shall revert to, and absolute title shall vest in, the borough. [Ord. 245 § 5, 1969; prior code § 45.40.330.]

16.08.360 Sanitary maintenance required.

The lessee shall comply with all ordinances of the borough which are promulgated for the promotion of sanitation. The premises of the lease shall be kept in a neat, clean and sanitary condition and every effort shall be made to prevent the pollution of waters. [Ord. 245 § 5, 1969; prior code § 45.40.340.]

16.08.370 Compliance with building and zoning regulations required.

Leased lands shall be utilized only in accordance with the building and zoning ordinances and rules and regulations thereunder. Failure to do so shall constitute a violation of the lease. [Ord. 245 § 5, 1969; prior code § 45.40.350.]

16.08.380 Fire protection.

The lessee will take all reasonable precaution to comply with all laws, regulations and rules promulgated by the borough for fire protection within the area wherein the leased premises are located. [Ord. 245 § 5, 1969; prior code § 45.40.360.]

16.08.390 Right of entry for inspection.

The lessee shall allow an authorized representative of the borough to enter the leased land at any reasonable time for the purposes of inspecting the land and improvements thereon. [Ord. 245 § 5, 1969; prior code § 45.40.370.]

16.08.400 Use of minerals and resources on leased lands.

All coal, oil, gas and other minerals and all deposits of stone, earth or gravel valuable for extraction or utilization are reserved by lessor and shall not be removed from the land. The lessee shall not sell or remove for use elsewhere any timber, stone, gravel, peatmoss, topsoil, or any other material valuable for building or commercial purposes; provided, however, that material required for the development of the leasehold may be used, if its use is first approved by the borough assembly. [Ord. 245 § 5, 1969; prior code § 45.40.380.]

16.08.410 Protection of public interest.

The lease shall contain such restrictions and reservations as are necessary to protect the public interest. [Ord. 245 § 5, 1969; prior code § 45.40.390.]

16.08.420 Permits for five years or less.

The assembly may authorize the borough clerk to grant permits to applicants and to use such applicant’s permits for the use of tide and/or submerged lands for a period to not exceed five years, without appraisal of the value of the land or public auction of the permit, for any purpose compatible with the land use classification of such lands and on such terms for such rental as the assembly shall determine. The provisions of WMC 16.08.010 through 16.08.070, 16.08.190 through 16.08.210, 16.08.230 through 16.08.330, and 16.08.350 through 16.08.410, pertaining to leases, shall, insofar as practical, apply and be a part of every such permit. Such permit may, however, be granted for the purpose of removing earth, stone or gravel from such lands, in which event the rental may be on a yardage basis and WMC 16.08.400 shall not apply. [Ord. 245 § 5, 1969; prior code § 45.40.410.]

16.08.430 Sale of tide and submerged lands.

A. When it is in the public interest, the assembly may by resolution authorize the sale of small tracts of tidelands and submerged lands; provided, that no such tract shall be greater in area than 400 square feet, such tract is unsuitable for use as a public use area, and such tract cannot be leased.

B. All sales of tidelands and submerged lands shall be public sales and shall be governed by the provisions of this chapter, insofar as may be applicable.

C. The assessed value of the property shall be stated in the notice required by WMC 16.08.130 instead of the annual minimum rental. All sales shall be made for cash and the successful bidder must make payment in full at the time of the sale.

D. The assembly may provide additional requirements not inconsistent with this chapter in the resolution authorizing such sale.

E. Anything in this chapter to the contrary notwithstanding, all such sales shall be subject to Charter provisions. [Ord. 245 § 5, 1969; prior code § 45.40.400.]


1

For statutory provisions on borough tideland leases, see AS 38.05.820(b)(7).