WSR 06-01-075

PERMANENT RULES

DEPARTMENT OF

NATURAL RESOURCES

[ Resolution No. 1186 -- Filed December 20, 2005, 9:55 a.m. , effective January 20, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The changes increase time provided during the rent review process, by extending filing periods and providing optional extensions for decision making. The changes do not change rents paid by lessees of state-owned aquatic lands. Instead, they are designed to clarify the rules, make them easier to understand and apply, consistent with current DNR standard practice.

Citation of Existing Rules Affected by this Order: Amending WAC 332-30-128.

Statutory Authority for Adoption: RCW 79.90.520.

Adopted under notice filed as WSR 05-17-183 on August 24, 2005.

Changes Other than Editing from Proposed to Adopted Version: Under this amendment, the amount of time allotted to lessees/applicants for submitting a rent review petition to the rental dispute appeals officer would be increased by fifteen days. The amount of time the rental dispute appeals officer has to review a decision would be increased by thirty days with an optional sixty days. The amount of time allotted for a lessee/applicant to submit a petition to the board of natural resources for rent review would be increased by fifteen days. The amount of time the board of natural resources has to review the decision would be increased by thirty days with an optional sixty day extension.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 5, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 5, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: December 6, 2005.

Doug Sutherland

Commissioner of Public Lands

OTS-8538.1


AMENDATORY SECTION(Amending Resolution No. 500, filed 11/5/85)

WAC 332-30-128   Rent review.   This section shall not apply to port districts managing aquatic lands under a management agreement (WAC 332-30-114).

(1) Eligibility to request review. Any lessee or applicant to lease or release state-owned aquatic lands may request review of any rent proposed to be charged by the department.

(2) Dispute officers. The manager of the marine lands division will be the rental dispute officer (RDO). The supervisor of the department, or his designee, will be the rental dispute appeals officer (RDAO).

(3) Submittals. A request for review of the rent (an original and two copies) shall be submitted within thirty days of notification by the department of the rent due from the lessee/applicant. The request for review shall contain sufficient information for the officers to make a decision on the appropriateness of the rent initially determined by the department. The burden of proof for showing that the rent is incorrect shall rest with the lessee/applicant.

(4) Rental due. The request for review shall be accompanied by one year's rent payment based on the preceding year's rate, or a portion thereof as determined by RCW 79.90.530; or based on the rate proposed by the department, or a portion thereof as determined by RCW 79.90.530, whichever is less. The applicant shall pay any additional rent or be entitled to a refund, with interest, within thirty days after completion of the review process provided in this section.

(5) Contents of request. The request for review shall state what the lessee/applicant believes the rent should be and shall contain, at the minimum, all necessary documentation to justify the lessee/applicant's position. This information shall include but not be limited to:

(a) Rationale. Why the rent established by the department is inappropriate. The supporting documentation for nonwater-dependent leases may include appraisals by professionally accredited appraisers.

(b) Lease information. A description of state-owned aquatic land under lease which shall include, but not be limited to:

(i) Lease or application number;

(ii) Map showing location of lease or proposed lease;

(iii) Legal description of lease area including area of lease;

(iv) The permitted or intended use on the leasehold; and

(v) The actual or current use on the leasehold premises.

(c) Substitute upland parcel. A lessee/applicant whose lease rent is determined according to RCW 79.90.480 (water-dependent leases) and who disputes the choice of the upland parcel as provided by WAC 332-30-123, shall indicate the upland parcel that should be substituted in the rental determination and shall provide the following information on the parcel:

(i) The county parcel number;

(ii) Its assessed value;

(iii) Its area in square feet or acres;

(iv) A map showing the location of the parcel; and

(v) A statement indicating the land use on the parcel and justifying why the parcel should be substituted.

(6) RDO review.

(a) The RDO shall evaluate the request for review within fifteen days of filing to determine if any further support materials are needed from the lessee/applicant or the department.

(b) The lessee/applicant or the department shall provide any needed materials to the RDO within thirty days of receiving a request from the RDO.

(c) The RDO may, at any time during the review, order a conference between the lessee/applicant and department staff to try to settle the rent dispute.

(d) The RDO shall issue a decision within sixty days of filing of the request. Such decision shall contain findings of fact for the decision. If a decision cannot be issued within that time, the lessee/applicant's request will automatically be granted and the rent proposed by the lessee/applicant will be the rent for the lease until the next rent revaluation; provided that, the RDO may extend the review period for one sixty-day period.

(7) RDAO review.

(a) The ((RDAO may, within fifteen days of the final decision by the RDO, be petitioned to review)) lessee/applicant may submit a petition within thirty days to the rental dispute appeals officer (RDAO) for review of that decision.

(b) If the RDAO declines to review the petition on the decision of the RDO, the RDO's decision shall be the final decision of the RDAO.

(c) If the RDAO consents to review the decision, the review may only consider the factual record before the RDO and the written findings and decision of the RDO. The RDAO shall issue a decision on the petition containing written findings within ((thirty)) sixty days of the filing of the petition. The RDAO may extend the review period for one sixty-day period. This decision shall be the RDAO's final decision.

(8) Board review.

(a) ((The board of natural resources (board) may, within fifteen days of the final RDAO decision, be petitioned to review that decision.)) The lessee/applicant may submit a petition within thirty days to the board of natural resources (board) for review of the RDAO decision.

(b) If the board declines to review the petition, the RDAO decision shall be the final decision of the board.

(c) If the board decides to review the petition, the department and the lessee/applicant shall present written statements on the final decision of the RDAO within ((fifteen)) thirty days of the decision to review. The board may request oral statements from the lessee/applicant or the department if the board decides a decision cannot be made solely on the written statements.

(d) The board shall issue a decision on the petition within ((sixty)) ninety days of the filing of the written statements by the lessee/applicant and the department.

[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), 332-30-128, filed 11/5/85.]