RULE 5 - LEASE PROCEDURE
A. Any person who
occupies public trust tidelands and whose activities thereon are not eligible for a
residential use permit pursuant to § 49-27-9 of the Coastal Wetlands Protection Law, or
statutorily exempt, must obtain a lease from the State of Mississippi.
B. Leases are
divided into two categories: Standard leases and Aquaculture leases. Submerged lands,
tidelands and fast lands ("reclaimed" or filled tidelands) are leased under a
Standard Lease. Aquaculture activities require an Aquaculture Lease.
C. Standard Lease
1. Applications for standard leases shall
include the following information:
a. Name, address, telephone number and social security number of applicant and
applicant's authorized agent, if applicable.
b. Location of property to be leased including county, section, township and
range; affected waterbody; vicinity map, preferably a reproduction of the appropriate
portion of the current United States Geological Survey quadrangle map.
c. Satisfactory evidence of title in applicant's upland riparian property or
assignment to applicant from owner of upland riparian property of riparian rights together
with satisfactory evidence of title of assignor's upland riparian property, if parcel
sought to be leased abuts on property which is outside the public trust.
d. Two prints of a survey prepared, signed and sealed by a person properly
registered as a land surveyor by the Mississippi State Board of Registration for
Professional Engineers and Land Surveyors with the following requirements:
- Utilizing an appropriate scale on paper of a size adequate to provide
sufficient clarity and detail;
- Showing the line of mean high tide, if any;
- Showing water depths;
- Showing the location of shoreline and submerged vegetation, if any;
- Showing the location of any proposed structures and all existing
structures, if any;
- Showing the applicant's or assignor's upland parcel property lines, if
property to be leased abuts on property which is outside the public trust;
- Showing the primary navigation channels or direction to the center of
the affected waterbody; and
- Including a legal description for area to be leased.
e. A non-refundable application processing fee in the amount of $150.00.
2. Terms and conditions of a standard lease
in addition to those set forth above, shall include, but not be limited to:
a. The term of the lease, which shall not exceed the statutory maximum
(currently 40 years). An option to renew for an additional period not to exceed 25 years
may be granted.
b. A provision granting the lessee a prior right, exclusive of all other
persons, to re-lease as may be agreed upon between the lessee and the Secretary.
c. The amount of the annual rent which shall be based on the following:
- Leases to pre-1973 occupants of public trust tidelands (Category 1
Standard Lease) will require an annual rental payment which is equal to the ad valorem
taxes on the value of the land, excluding the value of any privately owned improvements
thereon, at the time the lease is executed.
- If the lessee expands his use by more than 50%, then he will
automatically and immediately become a Category 2 Standard Lease lessee and will be
required to make annual rental payments according to Category 2 Standard Lease
computation.
- Category 1 Standard Leases are freely transferable for a period of 15 years
or until July 1, 2003, whichever period is less. After the expiration of said lesser
period, the lease becomes a Category 2 Standard Lease and the lessee must make annual
rental payments according to that calculation.
- In the event that the public trust tidelands to be leased, or any portion of
them, are not on the tax rolls, the lessee must make annual rental payments for such
portion according to Category 2 Standard Lease rental calculation.
- Category 1 Standard Leases shall be effective December 31 of the year in
which they are negotiated; ad valorem property taxes must be paid for that year to the
appropriate taxing authority.
- Leases to post-1973 occupants of public trust tidelands will require an
annual rental payment which shall be negotiated but which in no event shall be less than
3.3% of market value for fast lands and 7¢ per square foot for submerged lands or
tidelands.
- The market value of fast lands is the appraised value of the property as
shown on the tax rolls of the county or other taxing authority. Tidelands which are fast
lands and which do not appear on the tax rolls will be appraised and added to the county's
tax roll by the county tax assessor.
- If the tax roll shows the parcel as a combination of public trust tidelands
and privately owned land, market value of the public trust tidelands is that percentage of
the appraised value of the parcel as a whole that equals the ratio of public trust acreage
to the acreage of the parcel as a whole.
d. A provision for review and rent adjustments at each five year anniversary,
based upon updated county or municipal tax rolls for Category 1 Standard Leases, and based
upon the All Urban Consumer Price Index - All Items (CPI), or an appraisal paid for by the
lessee, whichever would indicate the greater increase for Category 2 Standard Leases. Said
appraisal must deduct the value of any improvements belonging to the lessee which
substantially enhance the value of the property. e. A casualty clause providing
that in the event of destruction by natural causes of improvements on the leased premises,
the lessee may opt to terminate the lease agreement, provided he leaves the property in a
condition equal to or better than its condition at the inception of the lease.
f. A provision requiring the lessee to maintain a policy of liability insurance
and to indemnify and hold harmless the lessor from and against all claims for damages or
injuries, no matter how caused.
g. A provision that in the event of the death of the lessee, the lease shall
descend to his heirs at law who may assume the lease, its rights, duties and obligations.
h. The right to assignment or sublease, upon written approval of the Secretary
of State, which approval shall not arbitrarily be withheld. (Cf. Rule 5 C(2)c.(i)(b), p.
10)
i. A provision guaranteeing public access during the term of the lease if public
access is afforded at the time the lease is contracted or if the lease is for a new
activity, unless the lessee is a qualified industrial applicant. Industrial applicants who
are unable to afford meaningful public access to the premises may seek a waiver of this
requirement. However, leases which fail to provide such public access are to be
discouraged.
D. Aquaculture Lease
1. Applications for aquaculture leases shall include the
following:
a. Name, address, telephone number and social security number of applicant;
b. Legal description and acreage of parcel sought to be leased;
c. Two prints of a survey of the parcel sought to be leased prepared, signed and
sealed by a person properly registered by the Mississippi State Board of Registration for
Professional Engineers and Land Surveyors or an agent of the federal government acceptable
to the Secretary of State;
d. Description of the aquaculture activities to be conducted, including whether
such activities are to be experimental or commercial, and an assessment of the current
capability of the applicant to conduct such activities;
e. Statement setting forth the reasons such a lease would be in the public
interest;
f. A list of the names and addresses of all claimants of littoral or riparian
rights in or adjacent to the parcel to be leased, and all lessees of adjacent or
contiguous properties;
g. Statement of the impact of the proposed use of the public trust tidelands
sought to be leased on the ecology of the area;
h. A $150.00 non-refundable application processing fee.
2. Each aquaculture lease shall include the following terms
and provisions, but not in limitation thereof:
a. The term of the lease which shall not exceed the statutory term, with an
option to renew.
b. The amount of the annual rent which shall be negotiated but which in no event
shall be less than $25.00 per acre to be paid at the time of the execution of the lease
and on each successive anniversary date thereof.
c. A provision for payment of the variable portion of lease fee, if any, at the
end of lessee's fiscal year.
d. The disposition to be made of all improvements and animal and plant life upon
the termination or cancellation of the lease.
e. The right to assignment or sublease, upon approval of the Secretary of State.
f. Casualty clause providing that in the event of destruction by natural causes
of the aquaculture venture on the leased premises, the lessee may opt to terminate the
lease agreement, provided he leaves the property in a condition acceptable to the lessor,
or in its natural state.
g. A clause assuring that lessee will maintain adequate casualty insurance, the
proceeds of which will be used for salvage operations in the event of catastrophic
destruction.
3. The parcel leased shall be identified, well marked and
shall have, except when it will interfere with the development of the animal and plant
life being cultivated by the lessee, reasonable public access for boating, swimming and
fishing. All limitations on the public use of the parcel leased as set forth in the lease
shall be clearly posted in conspicuous places by the lessee. Each parcel leased shall be
marked in compliance with the rules and regulations of the U.S. Coast Guard and the U.S.
Army Corps of Engineers.