31 TAC §155.4, §155.15
The School Land Board (Board) proposes amendments to §155.4,
relating to Permits and §155.15, relating to Fees. The permits authorize
continued use of previously unauthorized structures on coastal public lands
in accordance with Texas Natural Resources Code §§33.119 - 33.131.
The amendment to §155.4(h) delegates authority to the commissioner of
the Texas General Land Office (Land Office) to approve a permit renewal request
without Board approval if the request is consistent with the criteria as set
forth in subsection (c) of §155.4, provided that the permit holder has
not made or proposed modifications to the permitted structure(s) that constitute
major repairs other than a modification that reduces the dimensions of the
structure(s). In addition, the amendments to §155.4(o) establish procedures
for competitive bids for issuance of permits for structures determined to
be abandoned or for which the permit was terminated by the board for cause.
The amendments to §155.15 establish filing fees and fees for bonus payments
for permits awarded on the basis of such competitive bids.
Mr. Rene Truan, Deputy Commissioner and Director for the Asset Inspection
Division, has determined that for the first five-year period that the proposed
rulemaking is in effect there will be no fiscal implications for local government.
Mr. Truan determined that there will be fiscal implications for the state
as a result of enforcing the rules as amended. It is estimated that the Land
Office will experience an increase in revenue from the competitive bid process
as follows: approximately $50,000 in bonus payments from successful bidders
each year (estimated on the basis of $10,000 per permit with an estimated
five cabin permits awarded each year under the program) and approximately
$5,000 in annual payments from new cabin permit holders the first year, increasing
by $5,000 each year ($1,000 per permit with an estimated five additional permits
awarded each year).
Mr. Truan also has determined that for each year of the first five-year
period the proposed rulemaking is in effect, the public benefit will be the
ability of the Land Office to administer the permitted cabin structure program
more efficiently by streamlining the approval process for routine renewal
requests for cabin structure permits. The public will also benefit by a reduction
in the time required for approval of routine renewal requests for cabin structure
permits. The public benefits from establishing a competitive bid process for
abandoned and terminated cabin structure permits are two fold. First, the
process makes available to the public previously inactive permits in a fair
and impartial manner. Secondly, it provides additional revenue for managing
coastal public lands. Mr. Truan has determined that there will be no additional
cost of compliance for small or large businesses since the structures for
which permits may be obtained may be used only for noncommercial, recreational
purposes. Those individuals who are successful bidders for cabin structure
permits under the competitive bid process will experience estimated increased
costs of at least $15,000 over a five year period as a result of implementing
the amended sections, including a minimum $10,000 bonus payment and $1,000
each year in annual payments.
The Board has determined that the proposed rulemaking will have no adverse
local employment impact that requires an impact statement pursuant to the
Government Code, §2001.022.
The Board has evaluated the proposed rulemaking action in light of the
regulatory analysis requirements of Texas Government Code, §2001.0225,
and determined that the action is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
the statute. "Major environmental rule" means a rule, the specific intent
of which is to protect the environment or reduce risks to human health from
environmental exposure and that may adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. The
proposed amendments to §155.4 are not anticipated to adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state because the proposed rulemaking implements legislative requirements
in Texas Natural Resources Code §§33.119 - 33.131 providing that
the Board may issue permits authorizing limited continued use of previously
unauthorized structures on coastal public land if the use is sought by one
who is claiming a interest in the structure but is not incident to the ownership
of littoral property.
The Board has evaluated the proposed rulemaking in accordance with Texas
Government Code, §2007.043(b), and §2.18 of the Attorney General's
Private Real Property Rights Preservation Act Guidelines, to determine whether
a detailed takings impact assessment is required. The Board has determined
that the proposed rulemaking does not affect private real property in a manner
that requires real property owners to be compensated as provided by the Fifth
and Fourteenth Amendments to the United States Constitution or Article I,
Sections 17 and 19, of the Texas Constitution. Furthermore, the Board has
determined that the proposed rulemaking would not affect any private real
property in a manner that restricts or limits the owner's right to the property
that would otherwise exist in the absence of the rule amendments. The Board
has determined that the proposed rulemaking will not result in a taking of
private property and that there are no adverse impacts on private real property
interests inasmuch as the cabin structures are the property of the state.
The proposed rulemaking is subject to the Coastal Management Program (CMP),
31 TAC §505.11(a)(1)(H) and §505.11(c), relating to the Actions
and Rules Subject to the CMP. The Board has reviewed these proposed actions
for consistency with the CMP's goals and policies in accordance with the regulations
of the Coastal Coordination Council (Council). Since the requests for renewal
of structure cabin permits as well as those permits awarded as a result of
the competitive bid process must meet the same criteria as set forth in subsection
(c) of §155.4 for Board approval, the Board has determined that the proposed
actions are consistent with applicable CMP goals and policies. The proposed
amendments will be distributed to council members in order to provide them
an opportunity to provide comment on the consistency of the proposed new rules
during the comment period.
To comment on the proposed rulemaking or its consistency with the CMP goals
and policies, please send a written comment to Ms. Deborah Cantu, Texas Register
Liaison, Texas General Land Office, P. O. Box 12873, Austin, TX 78711, facsimile
number (512) 463-6311 or email to deborah.cantu@glo.state.tx.us. Written comments
must be received no later than thirty (30) days from the date of publication
of this proposal.
The amendments are proposed under the Texas Natural Resources
Code, §§33.119 - 33.131, providing that the Board may issue permits
authorizing limited continued use of previously unauthorized structures on
coastal public land; and Texas Natural Resources Code, §33.064, providing
that the Board may adopt procedural and substantive rules which it considers
necessary to administer, implement and enforce Texas Natural Resources Code,
Chapter 33.
Texas Natural Resources Code, §§33.119 - 33.131 are affected
by the proposed amendments.
§155.4.Permits.
(a)
Issuance. The board may issue permits authorizing limited
continued use of previously unauthorized structures, as defined in subsection
(b) of this section, on coastal public lands, where such use is sought by
one claiming an interest in any such structure but is not incident to the
ownership of littoral property. This section is not intended to limit the
authority granted to the commissioner or the School Land Board in the management
of the surface estate in coastal public lands, or to be the exclusive means
by which the commissioner or board may grant permission for the use of coastal
public lands.
(b)
Definition. A structure under this section shall be defined
as any housing, capable of residential use or which otherwise would typically
be considered an improvement on real property, which is in any manner attached
or affixed to coastal public land and is not associated with the ownership
of littoral property.
(c)
Criteria. Permits granted pursuant to this section shall
be subject to the following policies, provisions, and conditions, in addition
to those generally applicable to the Act.
(1)
The board may not:
(A)
grant any permit authorizing the continued use of any structure
located within 1,000 feet of:
(i)
privately owned littoral property, without the written
consent of the littoral owner;
(ii)
any federal or state wildlife sanctuary or refuge;
(iii)
any federal, state, county, or city park bordering on
coastal public lands;
(B)
grant any permit which would be in violation of the public
policy of this state as expressed in these sections and regulations;
(C)
grant any permit for any structure not in existence on
August 27, 1973;
(D)
grant more than one permit per person, immediate family,
organization, company, or group; or
(E)
grant any permit for dilapidated or derelict structures.
A structure is considered "dilapidated" or "derelict" if it is decayed, deteriorated,
structurally unsound, fallen into partial ruin, or has been abandoned either
through neglect or misuse.
This provision shall not prohibit the issuance
of a new contract for a previously abandoned structure, provided that the
permit holder agrees to rebuild or relocate the structure within one year
of contract issuance.
(2)
A permit authorizing continued use of a previously unauthorized
structure on coastal public lands shall be deemed automatically revoked and
terminated if the coastal public land where the structure is located is subsequently
leased for public purposes or exchanged for littoral property, or if such
land is conveyed to a navigation district as provided by law.
(3)
Every permit shall provide that in the event the terms
of the permit are broken, the permit may, at the option of the board, be terminated.
(4)
Permitted structures may be used only for noncommercial
recreational purposes. Acceptance of payment for use of a permitted structure,
or for services connected with use of the structure, is expressly prohibited.
(d)
Nuisance. All structures now existing or which shall be
built, for which a permit is required pursuant to this section, have been
declared by law to be the property of the state, and any construction, maintenance,
or use of such structure except as authorized in this section is declared
a nuisance per se and is expressly prohibited.
(e)
Interest claim. Any person seeking to obtain an interest
in a structure shall apply to the board for a permit. The application shall
be accompanied by the appropriate fees, as set forth in
§155.15
of this title (relating to Fees)
[
§155.10 of this title (relating
to Coastal Public Land Fees)
], and any documentation requested by the
board.
(f)
Board approval. The board may approve, deny, or approve
with qualifications an application for a permit. If an application is approved
by the board, the appropriate contract forms and related materials shall be
forwarded to the applicant for completion. The board may include in its approval
any provisions deemed necessary to protect the state's interest in coastal
public lands and the public welfare.
(g)
Term. The board shall set the term of the permit, which
shall not exceed five years. No construction or other activities may commence
at the site prior to execution of the structure permit by the commissioner
of the General Land Office.
(h)
Renewal. The board may, at its discretion, renew a permit
upon receipt of a renewal request and the required fees from the current permit
holder if all previous contractual conditions have been met.
The commissioner
may approve a permit renewal request without board approval if the request
is consistent with the criteria as set forth in subsection (c) of this section,
provided that the permit holder has not made or proposed modifications to
the permitted structure(s) that constitute major repairs other than a modification
that reduces the dimensions of the structure(s). If the commissioner approves
a renewal request, the appropriate contract forms and related materials shall
be forwarded to the permittee for completion. The commissioner may include
in his approval any provisions deemed necessary to protect the state's interest
in coastal public lands and the public welfare.
(i)
Relocation. The board may require relocation of any structure
permitted under this section if it is determined to be in the best interest
of the state. The permit holder shall be provided written notice stating that
relocation of the permit is required, and explaining the reasons for relocation.
Failure to comply with terms of a relocation notice may be considered grounds
for termination of a permit.
(j)
Transfer of interest. Board approval is required for the
transfer of any interest in a permit from a current permit holder to another
person. To transfer a permit, the current permit holder shall notify the board
in writing of intent to terminate the existing contract, and shall provide
the name of a person who seeks to assume responsibility for that site. The
prospective permittee shall be forwarded the appropriate forms, and shall
submit a completed permit application request and required fees to the board.
To accomplish the transfer of interest, the board shall then terminate the
original permit and, during the same meeting, issue a new permit for the same
site to the person specified by the original permit holder, providing all
original contract requirements have been complied with and all fees have been
paid.
(k)
Major repairs. Any action which alters the square footage
of an existing permitted structure shall be considered a major repair and
shall require prior approval from the board. The board may approve, deny,
or approve with qualifications a request for major repairs to, or for the
rebuilding of, a permitted structure. Examples of major repairs include, but
are not limited to:
(1)
modification or renovation work which alters the dimensions
of structures currently in existence;
(2)
the addition of any structure to an existing permitted
facility;
(3)
the relocation of any structure or facility from its permitted
location; or
(4)
any activity requiring dredging or filling.
(l)
Minor repairs. Minor repairs may be made to a permitted
structure without prior approval of the board. Minor repairs shall include
routine repairs to existing docks, piers, and the structure, and other normal
maintenance required to maintain a structure in a safe and secure manner but
which does not alter the authorized dimensions. Examples of minor repairs
include, but are not limited to:
(1)
replacement of tin or shingles on roofs, boards on floors,
walls, walkways, or decks when the structural dimensions are not increased;
(2)
replacement of pilings or other structural members that
do not require dredging or filling;
(3)
painting and maintenance activities; and
(4)
addition of windows, doors, or rails to an existing structure.
(m)
Abandoned structures. Structures determined by the board
to be abandoned may be removed from coastal public lands or permitted to an
interested party
through a competitive bid process approved by the board.
Structures may be considered abandoned if:
(1)
no response is received to a notice posted on the structure
citing the Act which requires board authorization for the structure, and containing
a request that the interest holder contact the General Land Office within
a specified period of time;
(2)
the interest holder in an unpermitted structure fails to
complete the permit application process within 60 days
after
[
once
] contact with the General Land Office has been made; or
(3)
all reasonable attempts to contact a permit holder at the
last known address have failed.
(n)
Termination. Failure to comply with these rules and regulations
shall be justification for termination of the permit by the board. A permit
holder shall have 60 days from the date of termination by the board to remove
all personal property from the structure provided all required fees have been
paid. The board shall have discretionary authority to revise this time limit,
to require permittee to remove any or all structures and man-made improvements,
or to assess the costs for repair of any damage to state lands and/or for
any necessary removal of debris at the permit site. Any personal property
remaining at the site after the 60 days, or the prescribed period set by the
board, shall become property of the state and may be disposed of at the board's
discretion.
Structures for which the permit is terminated by the board
for cause under this subsection may be removed from coastal public lands or
permitted to an interested party through a competitive bid process approved
by the board.
(o)
Issuance of permits to new
permit holders for structures determined to be abandoned or for which the
permit was terminated by the board for cause. Structures determined by the
board to be abandoned or for which the interest of the previous permit holder
was terminated for cause may be permitted to an interested party through a
competitive bid process approved by the board in accordance with this subsection.
(1)
Nominations of structures for permitting. The
board, General Land Office staff, or persons seeking to obtain an interest
in a specific structure may nominate for permitting a structure determined
by the board to be abandoned or for which the interest of the previous permit
holder was terminated for cause. Nominated structures will be evaluated by
General Land Office coastal leasing staff as to suitability for permitting,
including consideration of such factors as location, impacts to natural resources,
and condition of the structure. The General Land Office staff may recommend
relocation or rebuilding of a structure nominated for permitting.
(2)
Advertising of availability of nominated structures
for permitting. The board will set the terms and conditions upon which nominated
structures will be offered for permitting. These terms will be advertised
and bids taken.
(3)
Competitive bids for permitting of nominated
structures. Competitive bids may be received by the board. Anyone who notified
the General Land Office, in writing, of a desire to obtain an interest in
a particular nominated structure before the terms are advertised, will be
furnished a bid package at least 10 business days prior to the date set for
awarding of the permit for a nominated structure. Bid proposals for permits
for nominated structures must specify and describe the design of the structure
proposed and must be submitted with the prospective bidder's payment of his
bid offer for the bonus payment and filing fee.
(4)
Permit fees for nominated structures. The appropriate
filing fee, bonus payment, new contract issuance fee, and annual fee for nominated
structures will be determined as provided by §155.15 of this title (relating
to Fees).
(5)
Awards. After evaluation of all proposals, including
consideration of such factors as the prospective bidder's compliance with
the board's structure design guidelines and compliance history relating to
structures on coastal public land, the board may award a permit for a nominated
structure to the bidder submitting the proposal determined by the board to
be in the best interests of the state.
(6)
Improvements. Any structure to be constructed
in accordance with a permit issued pursuant to this bid process is the property
of the State of Texas, as provided in the Texas Natural Resources Code, §33.131.
(p)
[
(o)
] General provisions. Each permit
issued by the board
or commissioner
shall be subject to the following
general provisions.
(1)
The permit number must be displayed on the structure in
block numerals no less than 10 inches high. The numerals must be readily visible
from the normal route of access and should be of a color that contrasts with
the color of the structure. Decals, paint, or metal numerals may be used.
(2)
All structures on coastal public lands shall be subject
to inspection at any time by the board or its authorized representatives without
prior notice to the permit holder.
(3)
All structures shall be maintained in good repair and safe
condition, and shall be kept in a clean and sanitary condition acceptable
to the state.
(4)
No domestic or wild animals of any type shall be permanently
released upon state-owned islands. Domestic animals shall be prevented from
disturbing nesting birds on state-owned islands.
(5)
An applicant, by accepting a permit for a structure on
coastal public land, agrees and consents to the following:
(A)
to comply with all regulations which the board determines
to be necessary and proper for the protection, conservation, and orderly development
of coastal public lands;
(B)
to indemnify the State of Texas against any and all liability
for damage to life, person, or property arising from the permittee's occupation
and use of the area covered by the interest granted; and
(C)
to keep the commissioner of the General Land Office informed
at all times of his or her current mailing address and telephone number.
(6)
The approval of a structure permit by the board
or
commissioner
grants exclusive rights to the permit holder for the permitted
structure only, and does not prevent the board
or commissioner
from
issuing other grants of interest for the same area or implementing specific
land management practices at
their
[
its
] discretion.
§155.15.Fees.
(a)
(No change.)
(b)
School Land Board fees and charges. The School Land Board
is authorized and required under the Natural Resources Code, Chapter 33, to
collect the fees and charges set forth in this subsection where applicable.
(1)
(No change.)
(2)
Coastal fees and charges. The School Land Board will charge
the following coastal lease and coastal easement fees for use of coastal public
land, and will charge the following structure registration and permit fees.
The School Land Board charge will be based on either the fixed fee schedule
or the alternate commercial, industrial, residential, and public formulas
as delineated in subparagraphs (C) and (D) of this paragraph. The greater
of the fixed fee or formula rate will be charged.
(A) - (D)
(No change.)
(E)
Structure (cabin) permits:
(i)
fees:
(I)
refundable deposit: $200;
(II)
annual fee for all structures excluding piers, docks,
and walkways will be calculated at $.60 per square foot per year
/$175
minimum
;
(III)
contract renewal: $175;
(IV)
new contract issuance
or transfer of interest approved
by the board
: $325;
(V)
bonus payment for new contract issuance
for structure determined by the board to be abandoned or for which the permit
was terminated by the board for cause: negotiable/ minimum to be determined
by the board;
(VI)
filing fee for competitive bid proposal
for permit for structure determined by the board to be abandoned or for which
the permit was terminated by the board for cause: $50;
(VII)
[
(V)
]
late payment fee: 25% of
past due amount;
[(VI)
minimum annual payment: $175; ]
(ii)
permittee may apply for a continuation of the previous
fee if the permit was issued prior to July 18, 1983 (the date of the initial
rate increase), and if the annual fee will impose an undue financial hardship
on a current permit holder.
(F) - (J)
(No change.)
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on February 24, 2005.
TRD-200500855
Trace Finley
Policy Director, General Land Office
School Land Board
Earliest possible date of adoption: April 10, 2005
For further information, please call: (512) 305-8598