TITLE 145

DEPARTMENT OF PUBLIC LANDS

 

Chapter 145-10          Administrative Hearing Procedure Rules and Regulations

Chapter 145-20          Agricultural and Village Homestead Rules and Regulations

Subchapter 145-20.1 Agricultural Homestead Waiver Program Rules and Regulations

Subchapter 145-20.2 Rota Agricultural Homestead Program Rules and Regulations

Subchapter 145-20.3 Tinian Agricultural Homestead Program Rules and Regulations

Subchapter 145-20.4 Village Homestead Rules and Regulations

Chapter 145-30          Commercial Use of Managaha Island Rules and Regulations

Chapter 145-40          Land Compensation Claims Rules and Regulations

Chapter 145-50          Public Purpose Land Exchange Rules and Regulations

Chapter 145-60          Submerged Land Rules and Regulations

Chapter 145-70          Temporary Occupancy Rules and Regulations

 

CHAPTER 145-10

ADMINISTRATIVE HEARING PROCEDURE RULES AND REGULATIONS

 


Part 001 -       General Provisions

§ 145-10-001   Authority

§ 145-10-005   Purpose of Regulations

§ 145-10-010   Definitions

 

Part 100 -       Administrative Hearing Procedures

§ 145-10-101   Administrative Hearing Officer Position

§ 145-10-105   Hearing; Conduct and Procedure

§ 145-10-110   Appealable Decisions of the Administrator or His/Her Designee

§ 145-10-115   Appeal to the Board of Public Lands

§ 145-10-120   Appeal of the Board of Public Lands Decision

§ 145-10-125   Timing; Issuance of Decisions and Orders

§ 145-10-130   Severability


 

Chapter Authority: 1 CMC §§ 2801-2808.

 

Chapter History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 104 and 306(a):

 

Section 104. Department of Lands and Natural Resources.

 

The Department of Natural Resources is re-designated the Department of Lands and Natural Resources.

 

 

Section 306. Department of Lands and Natural Resources

 

(a)           Marianas Public Land Corporation. Pursuant to [N.M.I. Const. art. XI, §4(f)], the Marianas Public Land Corporation is dissolved and its functions transferred to a Division of Public Lands in the Department of Lands and Natural Resources, which shall have at its head a Director of Public Lands.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

In 1997, the Legislature passed the “Public Lands and Natural Resources Administration Act of 1997,” PL 10-57 (effective Apr. 18, 1997), codified as amended at 1 CMC §§ 2651-2691. PL 10-57 repealed and reenacted chapter 13, division 2 of title 1 of the Commonwealth Code, 1 CMC §§ 2651, et seq., and statutorily established the Department of Lands and Natural Resources (DLNR) with the structure, duties, and responsibilities set forth in the act. See 1 CMC § 2651 and the commission comment thereto.

 

PL 10-57 § 4 vacated Executive Order 94-3 § 306. PL 10-57 § 3, enacted a new article 3, entitled “Public Lands,” in title 1, div. 2 of the Commonwealth Code, formerly codified as amended at 1 CMC §§ 2671-2678. The article created a Division of Public Lands within DLNR “headed by a Director serving under the supervision and control of the Secretary and the Board of Public Lands.” PL 10-57 § 3 (§ 2671) (formerly codified at 1 CMC § 2671(a)). 1 CMC § 2671(b) provided that the Division of Public Lands is the successor to the Marianas Public Lands Corporation pursuant to N.M.I. Const. art. XI §4(f) and assigned all statutory powers and duties of the MPLC to the Division of Public Lands.

 

PL 10-57 § 3 (§ 2672) (formerly codified at 1 CMC § 2672(a)(2)) empowered the Division of Public Lands to manage, use and dispose of surface lands in the Commonwealth, subject to the supervision of the Board of Public Lands and the policies of the act. PL 10-57 § 3 (§ 2673) (formerly codified at 1 CMC § 2673(a)) established a Board of Public Lands to set policy for the Division of Public Lands and directed the Secretary of DLNR and the Director of the Division of Public Lands to carry out the policies of the board concerning matters under its jurisdiction.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” repealed PL 10-57 § 3 as codified in title 3, div. 2, art. 3 of the Commonwealth Code, 1 CMC §§ 2671-2678. PL 12-33 § 3 (§ 101(a)) created a Board of Public Lands Management and an Office of Public Lands under the direction of the Board. PL 12-71 (effective Nov. 13, 2001) amended § 101(a) to create the Marianas Public Lands Authority as an independent public corporation of the CNMI under the control and supervision of a Board of Directors. See PL 12-71 § 2(a).

 

According to PL 12-33:

 

Section 2. Findings. The Legislature finds that an inherent conflict exists by placing the Board of Public Lands (BPL) and Division of Public Lands (DPL) within the Department of Lands and Natural Resources (DLNR). See PL 10-57, as amended. The Secretary of DLNR is required to implement the policies put forth by the BPL. However, the Secretary, who serves at the pleasure of the Governor, must also implement the policies of the administration. A potential conflict arises when BPL and the administration’s policies differ or are inconsistent. By separating BPL and DPL from DLNR, such conflict would be avoided and help ensure that public land policy is dictated by an independent Board.

 

Section 3. Repeal and Re-enactment. Except as provided in Section 4 of this act, Public Law 10-57, as amended and codified under Article 3, Chapter 13, Part 2 of Title 1 of the Commonwealth Code is hereby repealed and re-enacted as a new Chapter 14 under Division 2 of Title 1 as follows:

 

Chapter 14

 

Section 101. Board of Public Lands Management.

(a)           There is established within the Executive Branch an independent Board of Public Lands. An Office of Public Lands, headed by a Public Lands Administrator, is established under the control and general supervision of the Board to execute, implement and enforce the policies, decisions, orders, rules and regulations of the Board.

(b)           The Board of Public Lands is declared to be the successor to the Marianas Public Lands Corporation pursuant to N.M.I. Const. Art. XI, § 4(f). Except as provided in this act, all powers and duties assigned to the Marianas Public Land Corporation by existing statute shall be considered as assigned to the Board of Public Lands Management.

 

Section 102. Board Powers and Duties.

(a)           The Board of Public Lands shall have the following powers and duties:

(1)           To be responsible for the management, use, and disposition of submerged lands off the coast of the Commonwealth, pursuant to the Submerged Lands Act, as amended (2 CMC §§ 1201 et seq.);

(2)           To be responsible for the management, use and disposition of surface lands of the Commonwealth.

(b)           The authority of the Board of Public Lands extends to all those lands defined as public lands by N.M.I. Const. Art. XI, § 1 or any other provision of law, subject to the provisions of this chapter and except as limited by transfers of freehold interests.

 

. . . .

 

Section 4. Global Amendment. Any reference to the Division of Public Lands in the Commonwealth code is hereby amended to read “Office of Public Lands.”

 

Section 5. Transition. All property, equipment, supplies, and personnel of the Board of Public Lands and the Division of Public Lands under PL 10-57, as amended are transferred to the Board of Public Lands established under this act. The provisions of this act shall not affect the appointment and service term of the Board of [D]irectors, serving on the effective date of this act.

 

According to PL 12-71:

 

Section 1. Findings. The Legislature finds that questions have arisen to the extent of the powers and duties of the Board of Public Lands. It is the intent of the Legislature that the Board of Public Lands be given broad powers over its operations, and the leasing of public lands.

 

Section 2. Amendment.

 (a)          1 CMC § 101(a) as enacted by the Board of Public Lands Act of 2000 (H.B. No. 12-257), is hereby amended as follows:

“(a)         There is established within the Executive Branch an independent public corporation of the Commonwealth of the Northern Mariana Islands, a public corporation to be known as the Marianas Public Lands Authority. The office of Marianas Public Lands Authority shall be headed by Commissioner of Marianas Public Lands Authority and Deputy Commissioner for each Senatorial District. All other Division[s] of the Marianas Public Lands Authority shall be headed by the Division Chief. The Commissioner shall serve at the pleasure of the Board of Directors. Each Deputy Commissioner shall be appointed by the Board of Directors. This Public Corporation is established under the control and general supervision of the Board of Directors to execute, implement and enforce the policies, decisions, orders, rules and regulations of the Board. The Board of Directors shall serve every five years with three serving four and two serving five years. The present board is not effected by this amendment upon effective of this Act. [sic]”

 (b)          1 CMC Section 102 as enacted by the Board of Public Lands Act of 2000 (H.B. No. 12-257), is hereby amended to include a new subsection (c) to read as follows:

“(c)         The Board of Directors may select, employ, promote and terminate employees, employ contractors and consultants, employ legal counsels, sue and be sued in its own name, provide liability insurance as it considers necessary, make contracts, borrow money within the limitations contained in Article X of the Constitution of the Northern Mariana Islands, and take any other action necessary for the management or disposition of surface and submerge [sic] public lands.”

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands and transferred the powers and duties of the Marianas Public Lands Authority to the Department of Public Lands within the executive branch. 1 CMC § 2801. PL 15-2 did not address authority over submerged lands.

 

PL 15-2 found:

 

Art. XI section 4(f) of the Constitution, as amended in 1985, provides that the functions previously performed by the Marianas Public Land Corporation “shall be transferred to the executive branch of government” after its dissolution. The Marianas Public Lands Authority in its current structure as an autonomous agency outside the executive branch fails to comply with this constitutional mandate.

 

PL 15-2 § 2(a) [Commission comment to 1 CMC § 2801].

 

PL 15-2 created the Department of Public Lands within the executive branch “to manage and administer the Commonwealth’s public lands under the provisions of Article XI of the Constitution.” 1 CMC § 2801. PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801]. Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4.

 

Pursuant to PL 15-2:

 

The Department [of Public Lands] shall be responsible for the administration, use, leasing, development, and disposition of all those lands defined as public lands by N.M.I. Const. art. XI, §1 or any other provision of law, subject to the provisions of this chapter and except as limited by transfers of freehold interests to individuals, entities, or other government agencies. The Department’s authority does not extend to the issuance of land use permits and licenses, except as specifically provided for in this Act, and does not limit in any respect the authority of other Commonwealth agencies to issue permits and licenses pursuant to their respective enabling legislation.

 

1 CMC § 2803(a).

 

PL 15-2 created a Secretary of the Department of Public Lands and an Advisory Board to the Secretary. 1 CMC §§ 2801 and 2804.

 

The Law Revision Commission notes that PL 12-33, PL 12-71 and PL 15-2 failed to repeal 1 CMC § 2653(c) and (k), which grant DLNR the power and duty to manage and dispose of public lands subject to the supervision of the Secretary of Public Lands and to manage, use and dispose of submerged lands of the Commonwealth, pursuant to the Submerged Lands Act. These provisions appear to conflict with the authority over public and submerged lands vested with Marianas Public Lands Authority and the Board of Public Lands Management in Public Laws 12-33 and 12-71. As PL 15-2 does not address Department of Public Lands authority, if any, over submerged lands, it appears that only DLNR’s authority over public lands pursuant to 1 CMC § 2653(c) may conflict with the authority of the Department of Public Lands. DLNR’s authority over public lands is subject to the supervision of the Secretary of Public Lands (1 CMC § 2653(c)), which may minimize any possible conflict.

 

Please refer to the Commission comment to NMIAC chapter 145-60 for more information regarding submerged lands.

 

PL 15-2 requires that “[n]o later than one year after the effective date of this Act, the Department [of Public Lands] shall adopt and promulgate a comprehensive land use plan with respect to public lands.” 1 CMC § 2805(f).

 

Part 001 -       General Provisions

 

§ 145-10-001   Authority

 

The rules and regulations in this chapter are hereby promulgated and issued by the Board of Public Lands of the Commonwealth of the Northern Mariana Islands, pursuant to its powers, duties, and authorities under Public Law 12-33 [1 CMC §§ 2801-2808], effective December 5, 2000.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: The Commission deleted “emergency” before “rules and regulations” because the regulations have been permanently adopted.

 

§ 145-10-005   Purpose of Regulations

 

The purpose of the rules and regulations in this chapter is to provide a comprehensive and efficient administrative hearing process for the Office of Public Lands.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: The Commission deleted “emergency” before “rules and regulations” because the regulations have been permanently adopted.

 

§ 145-10-010   Definitions

 

(a)        “Administrator”. The Administrator of the Office of Public Lands.

 

(b)        “Administrative Hearing Officer”. The in-house hearing officer selected by the Board of Public Lands to conduct administrative hearings in accordance with the Commonwealth Administrative Procedure Act [1 CMC §§ 9101, et seq.] and the rules and regulations in this chapter.

 

(c)        “Administrative Procedure Act”. The Commonwealth Administrative Procedure Act, codified at 1 CMC §§ 9101, et seq.

 

(d)       “Board of Public Lands”. The policy-making body responsible for the management, use, and disposition of all Commonwealth submerged and surface public lands.

 

(e)        “Office of Public Lands”. The office, headed by the Administrator, established under the control and general supervision of the Board of Public Lands to execute, implement and enforce the policies, decisions, orders, rules and regulations of the Board of Public Lands.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: In subsection (c), the Commission changed “as” to “at” to correct manifest errors. The Commission inserted quotation marks around terms defined.

 

Part 100 -       Administrative Hearing Procedures

 

§ 145-10-101   Administrative Hearing Officer Position

 

(a)        The Board of Public Lands hereby establishes the position of administrative hearing officer (“hearing officer”) and authorizes the hearing officer to conduct appellate hearings and issue decisions on administrative land claims.

 

(b)        The hearing officer shall have the authority to hear any appeal made by any person aggrieved by a decision made by the Administrator or his/her designee. The decision of the hearing officer is final unless appealed to the Board of Public Lands.

 

(c)        In the event that the hearing officer has determined that a conflict, if any, exists pursuant to the CNMI Code of Ethics, the Administrative Procedure Act, or for any other reason(s) duly noted, the Board of Public Lands may select a hearing officer pro tem to hear and issue a decision and order on such appeal.

 

(d)       The hearing officer, in carrying out his/her duties and responsibilities, pursuant to the Commonwealth Administrative Procedure Act [1 CMC §§ 9101, et seq.] and the rules and regulations in this chapter, shall exercise his/her independent judgment on the evidence before him/her, free from pressures by the parties to the appeal involved, the Board of Public Lands, the Office of Public Lands, or any other Commonwealth government agencies and/or officials.

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: In subsection (c), the Commission changed “exist” to “exists” to correct a manifest error.

 

§ 145-10-105   Hearing; Conduct and Procedure

 

The hearing officer shall conduct and regulate the course of the hearing proceedings and issue decisions in conformance with the Administrative Procedure Act, 1 CMC §§ 9101, et seq.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

§ 145-10-110   Appealable Decisions of the Administrator or His/Her Designee

 

(a)        Denial or noncompliance of village homestead.

 

(b)        Denial or noncompliance of agricultural homestead.

 

(c)        Denial or noncompliance of surface or submerged lands permit or lease.

 

(d)       Denial of land claims.

 

(e)        Denial of land exchange.

 

(f)        The Administrator or his/her designee’s written notice of denial or noncompliance shall inform the aggrieved person that he/she may appeal, in writing, such adverse decision to the hearing officer within thirty days of receipt of notice of denial or noncompliance.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

Commission Comment: The final paragraph was not designated. The Commission designated it subsection (f).

 

§ 145-10-115   Appeal to the Board of Public Lands

 

Any person not satisfied with the decision of the hearing officer may appeal such decision to the Board of Public Lands within thirty days of receipt of the hearing officer’s decision. The Board of Public Lands, having the authority over the management, use, and disposition of all Commonwealth surface and submerged public lands, is the final agency authority.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

§ 145-10-120   Appeal of the Board of Public Lands Decision

 

Appeals from a Board of Public Lands decision shall be brought pursuant to the Administrative Procedure Act [1 CMC §§ 9101, et seq.]

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

§ 145-10-125   Timing; Issuance of Decisions and Orders

 

The hearing officer shall issue his/her decision on each claim after the administrative hearing proceeding is fully completed. The decision may be issued within thirty days. If more time is needed to issue a decision, due to caseloads, the parties will be notified of such extension.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).

 

§ 145-10-130   Severability

 

If any provision of the rules and regulations in this chapter shall be held invalid by a court of competent jurisdiction, the remainder of such rules and regulations other than those to which it is held invalid, shall not be affected thereby.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 23 Com. Reg. 18803 (Dec. 21, 2001); Emergency and Proposed 23 Com. Reg. 18398 (Sept. 24, 2001) (effective for 120 days from Sept. 24, 2001).


 

CHAPTER 145-20

AGRICULTURAL AND VILLAGE HOMESTEAD RULES AND REGULATIONS

 

SUBCHAPTER 145-20.1

AGRICULTURAL HOMESTEAD WAIVER PROGRAM RULES AND REGULATIONS

 


Part 001 -        General Provisions

§ 145-20.1-001                        Authority

§ 145-20.1-005                        Purpose

 

Part 100 -        Agricultural Homestead Waiver Program Requirements

§ 145-20.1-101                        Standards of Eligibility

§ 145-20.1-105                        Application Procedure

§ 145-20.1-110                        Issuance of Permit and Deed

§ 145-20.1-115                        Notice and Hearing

 

Appendix A     Application for Waiver of Agricultural Homestead Requirements

Appendix B     Permit to Homestead Agricultural Tract

Appendix C     Quitclaim Deed for Agricultural Homestead Tract


 

Subchapter Authority: 2 CMC § 4325.

 

Subchapter History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114. 2 CMC §§ 4301-4314 set forth the general statutory provisions governing homesteads in the CNMI and designate MPLC as the agency responsible for implementing homestead laws.

 

PL 2-13 (effective Feb. 9, 1981), the “Homestead Waiver Act,” is codified as amended at 2 CMC §§ 4321-4328. PL 11-96 (effective Sept. 10, 1999) amended certain provisions of the Homestead Waiver Act. 2 CMC § 4323, as amended by PL 14-66 (effective May 5, 2005) directed the MPLC to waive certain requirements of the agricultural homesteading program.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands. PL 15-2 created the Department of Public Lands within the executive branch “to manage and administer the Commonwealth’s public lands under the provisions of Article XI of the Constitution” and transferred the powers and duties of the Marianas Public Lands Authority to the Department of Public Lands. 1 CMC § 2801.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

2 CMC § 4325 empowers the Department of Public Lands to promulgate rules and regulations to carry out the purposes of the Homestead Waiver Act. PL 15-2 § 3 (§ 108) requires that the Department of Public Lands “assess the demand for homesteads and develop a program for meeting that need, to the extent practicable, within the available land base.” 1 CMC § 2808.

 

The Marianas Public Lands Corporation promulgated the Agricultural Homestead Waiver Program Rules and Regulations codified in this subchapter.

 

Part 001 -       General Provisions

 

§ 145-20.1-001            Authority

 

The rules and regulations in this subchapter are hereby promulgated and issued by the Marianas Public Land Corporation (MPLC) pursuant to § 5 of the Northern Mariana Islands Homestead Waiver Act of 1980 (Public Law 2-13, as amended).

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

§ 145-20.1-005            Purpose

 

The purposes of the rules and regulations in this subchapter are to set forth the necessary procedures with respect to agricultural homestead waiver applications; to set out in detail the standards of eligibility; to provide for certain requirements necessary to meet the goals and objectives of the agricultural homestead waiver program; to provide for a system of issuance of notice and hearing process for applicants whose applications have been denied, and to provide a basic format for applications and other documents and instruments necessary to administer and implement the agricultural homestead waiver program.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Part 100 -       Agricultural Homestead Waiver Program Requirements

 

§ 145-20.1-101            Standards of Eligibility

 

The criteria provided hereinunder shall govern the eligibility of the following classes of applicants for agricultural homestead under Public Law 2-13, as amended:

 

(a)        An applicant must have, prior to January 9, 1978, entered upon, occupied, and improved a certain public land for agricultural purposes with any form of authorization from the government, and actually entered upon, occupied, improved and continually used said public land for agricultural purposes through the effective date of the Northern Mariana Islands Homestead Waiver Act of 1980, as amended; or an applicant must have, prior to January 9, 1978, entered upon, occupied, and improved a certain public land for agricultural purposes for a period of 15 years or more with or without any authorization from the government.

 

(b)        An applicant must be 18 years or older at the time he/she entered upon, occupied, and improved either with or without government authorization, a certain public land for agricultural purposes.

 

(c)        An applicant or his/her spouse must not own or have more than one agricultural homestead.

 

(d)       An applicant or his/her spouse must not own or have an interest in land within the Northern Mariana Islands that equals or exceeds the land area allowable at the time he/she entered upon, occupied, and improved a certain public land for agricultural purposes.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

§ 145-20.1-105            Application Procedure

 

(a)        All applicants for waiver of agricultural homestead shall fill out an agricultural homestead waiver application form provided for by MPLC. The said form is attached hereto as appendix “A.” All applications shall be submitted no later than one year from the date of the final publication of the rules and regulations in this subchapter.

 

(b)        All applications shall be signed and acknowledged before a notary public or declared under penalty of perjury.

 

(c)        All applications must be accompanied by a $200.00 application fee.

 

(d)       After submission of an application, MPLC shall review and verify the eligibility of the applicant and all essential facts set forth in the application, including but not limited to investigation of records, interviewing of applicants and witnesses, inspection of premises and improvements or developments, etc.

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Commission Comment: In subsection (a), the Commission moved the period after “A” inside of the closing quotation mark.

 

§ 145-20.1-110            Issuance of Permit and Deed

 

An applicant whose application has been reviewed, verified, approved, and found to meet the agricultural homestead requirements, rules, and regulations to the satisfaction of MPLC shall be issued an agricultural homestead permit upon completion of the necessary survey work, preparation of an official survey plat and payment of 10% of the survey cost incurred by MPLC, however, not to exceed $100 per hectare, whichever is lower. The said form is attached hereto as appendix “B.” Upon issuance of the permit, a deed to the applicant shall be issued and delivered to the said applicant. The said form is attached hereto as appendix “C.”

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Commission Comment: The Commission moved the periods inside of the closing quotation marks.

 

§ 145-20.1-115            Notice and Hearing

 

An applicant whose application for an agricultural homestead waiver has been received, verified, and found not eligible, shall be informed in writing, in the language the applicant is conversant with, of such decision, the reason therefore, and the right of each applicant to appear before the hearing committee set up by the Corporation to hear and determine why his/her application should not be denied. Such a hearing shall be held no later than 90 days after receipt of such notice by the applicant. If the applicant has reasons to believe that his/her application should not be denied, he/she should present his/her case before the committee for consideration. No later than 30 days after the hearing, the committee, on behalf of the Corporation, shall issue its decision. If the committee finds that it should deny the application, a written decision to that effect shall be prepared and given to the applicant. Such a decision shall be deemed final for MPLC. The applicant has the right to be represented by a counsel of his/her choosing and to bring witnesses at the said hearing.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 


 

Appendix A

 

Application for Waiver of Agricultural Homestead Requirements

Marianas Public Land Corporation

P. O. Box 380

Saipan, CM 96950

 

Application For Waiver of

Agricultural Homestead Requirements

 

A.        Bio Data

 

1.         Name of Applicant(s): _____________________________________

(Last)               (First)              (Middle)

 

(Spouse’s Maiden Name) _________________________________________

(Last)               (First)              (Middle)

 

2.         Place of Birth: (Applicant) __________________________________

                                    (Spouse) ____________________________________

 

3.         Date of Birth:  (Applicant) ________________         Age: _________

                                    (Spouse) __________________         Age: _________

 

4.         Date of Marriage: _________________________________________

 

5.         Home Address: ___________________________________________

 

6.         Mailing Address: _________________________________________

 

7.         Telephone Number:     (Home) _______________________________

                                                (Work) _______________________________

 

8.         Number of dependent children (under 18 years) _________________

 

9.         Occupation(s): (Applicant) __________________________________

                                    (Spouse) ____________________________________

 

10.       Name and address of employer:

(Applicant) ____________________________________________________

(Spouse) ______________________________________________________

 

B.        Land Ownership Statement

 

1.         Do you or your spouse own or have an interest in agricultural land in the Commonwealth of the Northern Mariana Islands? _________________________________

 

a)         What kind of interest? (Specify whether inheritance, co-heir to decedent’s estate, co-owner, through purchase, homesteading program, etc.) ________________________

 

b)         Where is the land located? (Describe) ________________________

 

c)         How large is the land? ____________________________________

 

d)         Who is using the land? ____________________________________

 

2.         Are you or your spouse presently occupying and developing a public land for agricultural, purpose?___________________________________________

 

a)         When did you first enter, occupy and develop the land?___________________________________________

                        Month             Date                Year

 

b)         Where is the land located? _____________________

 

c)         How large is the land? ________________________

 

d)         How long have you entered occupied, and developed the land?______________________________________

 

e)         Did you apply to homestead the land? ____________

 

f)         When did you apply to homestead the land?

______________________________________________

Month             Date                Year

 

g)         Have you ever been issued an agricultural homestead permit?________________________________________

 

h)         Did you pay the $10 filing fee? _________________

 

i)          Do you have authorization from the government to enter upon, occupy, and improve the land for agricultural purposes?_______________________________________

1)         Who authorized you? __________________________

2)         When? ______________________________________

 

j)          Were you ever given a map by the government for that land that you have entered, occupied, and improved for agricultural purposes? (Attach map ) __________________

 

k)         Have you ever traveled to another island, or country after you entered upon, occupied, and improved the land for agricultural, purposes? _____________________________

1.         When? ______________________________________

2.         Length of travel? ______________________________

3.         For what purpose? _____________________________

 

l)          Have you ever authorized or permitted anyone (aside from your spouse or children) to enter upon, occupy and improve the land or any portion of the said land? ________

 

m)        Who else, if any, beside you, your spouse or children, is occupying or using the land?_________________________

1)         Length of time the above person is using the

land? __________________________________________

 

n)         What development(s) or improvement(s), if any, have you made on the land? _____________________________

1)         In the space below, draw a simple sketch of the land and indicate what portion of the land has what development(s) or improvement(s):

 

 

 

 

 

 

 

 

 

 

 

2)         Names of adjoining occupants to your:

North __________________________________________

South __________________________________________

East ____________________________________________

West ___________________________________________

 

Certification by Applicant/Spouse

 

I/We, _________________________________________ declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on ________________________, 19_____, at __________, Commonwealth of the Northern Mariana Islands. Also, I/we understand that by falsifying any of the answers herein for the purpose of obtaining a deed to the public land I/we was/were authorized to enter, occupy, and improve for agricultural purposes, MPLC is authorized by me/us to declare my/our application for waiver of agricultural homestead requirements null and void.

 

Date: ____________  Applicant: __________________

 

Date: ____________  Spouse: ____________________

 

Acknowledgment

 

Commonwealth of the                        )

Northern Mariana Islands       ) ss

)

_____________________      )

 

On this ___________ day of ______________, 19___, before me appeared _____________________________, known to me to be the person(s) whose name(s) is (are) subscribed to the foregoing Instrument and acknowledged that he/she signed and delivered said Instrument as his/her free and voluntary act for the purposes therein set forth.

 

  In Witness Whereof, I hereunto set my hand and seal this ____________ day of _______________________, 19___.

 

                                                                                                __________________________

                                                                                                Notary Public

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Commission Comment: In section (B)(2)(k), the Commission corrected the spelling of “traveled.”


 

 

Appendix B

 

Permit to Homestead Agricultural Tract

Commonwealth of the Northern Mariana Islands

Marianas Public Land Corporation

 

Permit to Homestead Agricultural Tract No. ____________

 

This Agricultural Homestead Permit is issued by the Marianas Public Land Corporation in favor of ________________________, referred to hereinafter as “Homesteader”, who is hereby authorized to continue to occupy, use, and improve the parcel of land described as per attachment “A”, referred to as the “Homestead” in accordance with the provisions of the Northern Mariana Islands Homestead Waiver Act of 1980, as amended, and the rules and regulations promulgated thereof.

 

In issuing this Permit, the Marianas Public Land Corporation has made the following findings:

 

1.         That the Homesteader has, prior to January 9, 1978, continuously entered upon, occupied, and improved that parcel of land as described in attachment “A” for agricultural purposes for a period of _______ years.

 

2.         That the Homesteader does not own or have an interest in agricultural land within the Commonwealth of the Northern Mariana Islands that exceeds or equals the area or size of the above-described Homestead.

 

3.         That the Homesteader has paid the application fee of $200.00 and costs of survey of the Homestead in accordance with § 5 of the approved Rules and Regulations [§ 145-20.1-105(c)].

 

4.         That the Homesteader has fully understood and agreed to reserve to the government of the Commonwealth of the Northern Mariana Islands, its successors and assigns, all mineral rights or such water rights as may be required, the existing roadways, rights of ways and other easements upon said Homestead. The Homesteader further agrees to reserve for the benefit of the Government of the Northern Mariana Islands, its successors and assigns from the land above described necessary rights of way for construction of utility lines, pipelines, or other conduits with necessary maintenance and access roads as may be constructed by the authority of the government of the Northern Mariana Islands, its successors and assigns, but this reservation shall not be construed to waive any claims for injury to growing crops, damage to improvements or other injuries sustained by the Homestead as a direct result of the execution of work or exercise of the right of entry upon the above-described property under this reservation.

 

5.         That the Homesteader has satisfied the waiver eligibility requirements and is hereby waived from complying with the compliance requirements as mandated by law.

 

6.         That the Homesteader is entitled to receive a Quitclaim Deed to said Homestead within 90 days from the date hereof.

 

Dated this _______ day of ___________________, 19___.

 

Marianas Public Land Corporation     Homesteader

 

By       _______________________  _________________

            Chairman

            Board of Directors

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 

Commission Comment: In subsection (3), the citation to § 5, codified at § 145-20.1-110, is incorrect. The Commission cited the correct provision in the brackets.


 

 

Appendix C

 

Quitclaim Deed for Agricultural Homestead Tract

Commonwealth of the Northern Mariana Islands

Marianas Public Land Corporation

 

Quitclaim Deed for

Agricultural Homestead Tract

 

This Indenture made this ________________ day of ________, 19___, by and between the Marianas Public Land Corporation of the Commonwealth of the Northern Mariana Islands, hereinafter referred to as “GRANTOR”, and __________________________________________ of __________________________, Northern Mariana Islands, hereinafter referred to as “GRANTEE”.

 

WITNESSETH THAT:

 

WHEREAS, Grantee has continuously entered upon, occupied, and improved a certain public land described below for agricultural purposes for a period of __________ years at the effective date of the Constitution of the Northern Marianas Islands, the first entry being made on __________________; and

 

WHEREAS, Grantee complied with the provisions of the homestead laws pertaining to the said agricultural tract as well as the terms and conditions of the Permit to Homestead Agricultural Tract No. ________________, incorporated herein by reference.

 

NOW, THEREFORE, pursuant to the provisions of the Northern Mariana Islands Homestead Waiver Act of 1980, the Grantor having the powers to manage and dispose of public lands under Article XI of the Constitution on behalf of the Commonwealth, now do hereby by these presents remise, release, and quitclaim forever to the Grantee, all right, title, interest, or claim of the Commonwealth in and to the following described real property situated and lying at ______________, Northern Mariana Islands:

 

Tract No. ________________ containing an area of ________ square meters more or less as shown on the Division of Lands and Surveys Official Survey Plat Number ______________ dated ___________________________, the description therein being incorporated herein by reference.

 

TO HAVE AND TO HOLD the same unto the Grantee, his/her heirs and assigns forever, together with all fixtures and appurtenances belonging thereto, but reserving to the Commonwealth, its successors and assigns, all mineral rights or such water rights as may be required, the existing roadways, and other easements upon the premises. There is also hereby reserved for the benefit of the Commonwealth, its successors and assigns, from the premises necessary rights of way for construction of utility lines, pipelines, or other conduits with necessary maintenance and access roads as may be constructed by the authority of the Commonwealth, its successors and assigns; but this reservation shall not be construed to waive any claim for injury to growing crops, improvements, surface damage, or other injuries sustained by the Grantee, his/her heirs and assigns, as a direct result of the execution of the work or exercise of the right of entry under this reservation.

 

IN WITNESS WHEREOF, the Chairman of the Board of Directors of the Marianas Public Land Corporation, pursuant to the authorization of the Board, hereby enters his signature and affixes the seal of the Corporation on the day and year first above written.

 

MARIANAS PUBLIC LAND CORPORATION

 

By:      ____________________________________________

            Chairman

            Board of Directors

 

History: Adopted 5 Com. Reg. 2240 (July 29, 1983); Proposed 5 Com. Reg. 2109 (May 27, 1983); Proposed 3 Com. Reg. 1285 (July 31, 1981).

 


SUBCHAPTER 145-20.2

ROTA AGRICULTURAL HOMESTEAD PROGRAM RULES AND REGULATIONS

 

Subchapter Authority: PL 7-11 § 3 (former 2 CMC § 4383 repealed and reenacted by PL 10-3 § 5).

 

Subchapter History: Proposed 14 Com. Reg. 10179 (Dec. 15, 1992).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-41115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114. 2 CMC §§ 4301-4314 set forth the general statutory provisions governing homesteads in the CNMI and designated MPLC as the agency responsible for implementing homestead laws.

 

PL 7-11, the “Rota Agricultural Homestead Act of 1990,” codified as amended at 2 CMC §§ 4381-4385, is deemed effective on October 24, 1990 pursuant to PL 10-3 (effective Mar. 4, 1996), the “Rota Agricultural Homestead Corrections Act of 1996.” See PL 10-3 § 3 set forth in the commission comment to 2 CMC § 4382. PL 7-11 § 2 authorized the MPLC to administer an agricultural homestead program on Rota. PL 6-15 § 3 (former 2 CMC § 4373) empowered MPLC to promulgate rules and regulations to carry out the purposes of the act.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 104 and 306(a):

 

Section 104. Department of Lands and Natural Resources.

 

The Department of Natural Resources is re-designated the Department of Lands and Natural Resources.

. . . .

 

Section 306. Department of Lands and Natural Resources

 

(a)           Marianas Public Land Corporation. Pursuant to [N.M.I. Const. art. XI, §4(f)], the Marianas Public Land Corporation is dissolved and its functions transferred to a Division of Public Lands in the Department of Lands and Natural Resources, which shall have at its head a Director of Public Lands.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 10-3 (effective Mar. 4, 1996), the “Rota Agricultural Homestead Corrections Act of 1996,” codified at 2 CMC §§ 4382 and 4383, amended PL 7-11 to, among other things, update the law to reflect the changes effected by Executive Order 94-3. PL 10-2 § 5 repealed PL 6-15 § 3. 2 CMC § 4383(a) requires the Secretary of the Department of Lands and Natural Resources to establish standards and requirements for the use, occupation and development of the homestead tracts granted under the act.

 

In 1997, the Legislature passed the “Public Lands and Natural Resources Administration Act of 1997,” PL 10-57 (effective Apr. 18, 1997), codified as amended at 1 CMC §§ 2651, et seq. PL 10-57 repealed and reenacted chapter 13, division 2 of title 1 of the Commonwealth Code, 1 CMC §§ 2651, et seq., and statutorily established the Department of Lands and Natural Resources (DLNR) with the structure, duties and responsibilities set forth in the act. See 1 CMC § 2651 and the commission comment thereto. 1 CMC § 2654 authorizes the Department of Lands and Natural Resources to adopt rules and regulations in furtherance of its duties and responsibilities.

 

PL 10-57 § 4 vacated Executive Order 94-3 § 306. PL 10-57 § 3 created a Division of Public Lands within DLNR “headed by a Director serving under the supervision and control of the Secretary and the Board of Public Lands.” 1 CMC § 2671(a). 1 CMC § 2671(b) provided that the Division of Public Lands is the successor to the Marianas Public Lands Corporation pursuant to N.M.I. Const. art. XI §4(f) and assigned all statutory powers and duties of the MPLC to the Division of Public Lands.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management.

 

After PL 12-33 vested the authority to implement the homesteading programs in the new Board of Public Lands Management, the Legislature enacted PL 12-53 (effective on May 29, 2001). PL 12-53, the “Rota Agricultural Homestead Amendment Act of 2001,” amended 2 CMC § 4382 to authorize the Board of Public Lands to designate agricultural lands on Rota for homesteads. However, PL 12-53 did not amend 2 CMC § 4383, which still requires the Secretary of the Department of Lands and Natural Resources to establish standards and requirements for the use, occupation and development of the homestead tracts granted under the act.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. Public Law 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands. PL 15-2 created the Department of Public Lands within the executive branch “to manage and administer the Commonwealth’s public lands under the provisions of Article XI of the Constitution” and transferred the powers and duties of the Marianas Public Lands Authority to the Department of Public Lands. 1 CMC § 2801.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

PL 15-2 § 3 (§ 108) requires that the Department of Public Lands “assess the demand for homesteads and develop a program for meeting that need, to the extent practicable, within the available land base.” 1 CMC § 2808. PL 15-2 did not amend 2 CMC § 4383(a), which requires the Department of Lands and Natural Resources to establish standards for homestead tracts in Rota. Consequently, authority over an agricultural homestead program on Rota is unclear.

 

On December 15, 1992, the MPLC published proposed Rota Agricultural Homestead Program Rules and Regulations pursuant to the authority of PL 7-11. See 14 Com. Reg. 10179 (Dec. 15, 1992). A notice of adoption was never published. This subchapter is reserved for future rules and regulations governing the Rota Agricultural Homestead Program.

 

[Reserved for future rules and regulations governing the Rota Agricultural Homestead Program.]


SUBCHAPTER 145-20.3

TINIAN AGRICULTURAL HOMESTEAD PROGRAM RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-20.3-001            Authority

§ 145-20.3-005            Purpose

§ 145-20.3-010            Definitions

 

Part 100          Tinian Agricultural Homestead Program Requirements

§ 145-20.3-101            Designation of Homestead Areas

§ 145-20.3-105            Establishment of Area

§ 145-20.3-110            Persons Eligible to Homestead

§ 145-20.3-115            Priority of Applicants

§ 145-20.3-120            Application Procedure

§ 145-20.3-125            Issuance of Homestead Permit

§ 145-20.3-130            Conditions of Occupancy

§ 145-20.3-135            Homestead Progress Inspection

§ 145-20.3-140            Deeds of Conveyance

§ 145-20.3-145            Transfer of Homestead Permit

§ 145-20.3-150            Penalties

§ 145-20.3-155            Notice and Hearing

§ 145-20.3-160            Waiver

 

Part 200          Miscellaneous Provisions

§ 145-20.3-201            Effective Date


 

Subchapter Authority: PL 6-15 § 3 (former 2 CMC § 4373 repealed and reenacted by PL 10-2 § 5).

 

Subchapter History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114. 2 CMC §§ 4301-4314 set forth the general statutory provisions governing homesteads in the CNMI and designate MPLC as the agency responsible for implementing homestead laws.

 

PL 6-15, the “Tinian Agricultural Homestead Act of 1988,” codified as amended at 2 CMC §§ 4371-4376, is deemed effective on Feb. 21, 1989 pursuant to PL 10-2 (effective Mar. 4, 1996), the “Tinian Agricultural Homestead Corrections Act of 1996.” See PL 10-2 § 3 set forth in the commission comment to 2 CMC § 4372. PL 6-15 § 2 authorized the MPLC to administer an agricultural homestead program on Tinian. PL 6-15 § 3 empowered MPLC to promulgate rules and regulations to carry out the purposes of the act.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 104 and 306(a):

 

Section 104. Department of Lands and Natural Resources.

 

The Department of Natural Resources is re-designated the Department of Lands and Natural Resources.

. . . .

 

Section 306. Department of Lands and Natural Resources

 

(a)           Marianas Public Land Corporation. Pursuant to [N.M.I. Const. art. XI, §4(f)], the Marianas Public Land Corporation is dissolved and its functions transferred to a Division of Public Lands in the Department of Lands and Natural Resources, which shall have at its head a Director of Public Lands.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 10-2 (effective Mar. 4, 1996), the “Tinian Agricultural Homestead Corrections Act of 1996,” codified at 2 CMC §§ 4372 and 4373, amended PL 6-15 to, among other things, update the law to reflect the changes effected by Executive Order 94-3. PL 10-2 § 5 repealed PL 6-15 § 3. 2 CMC § 4373(a)(2) requires the Secretary of the Department of Lands and Natural Resources to establish standards and requirements for the use, occupation and development of the homestead tracts granted under the act.

 

In 1997, the Legislature passed the “Public Lands and Natural Resources Administration Act of 1997,” PL 10-57 (effective Apr. 18, 1997), codified as amended at 1 CMC §§ 2651, et seq. PL 10-57 repealed and reenacted chapter 13, division 2 of title 1 of the Commonwealth Code, 1 CMC §§ 2651, et seq., and statutorily established the Department of Lands and Natural Resources (DLNR) with the structure, duties, and responsibilities set forth in the act. See 1 CMC § 2651 and the commission comment thereto. 1 CMC § 2654 authorizes the Department of Lands and Natural Resources to adopt rules and regulations in furtherance of its duties and responsibilities.

 

PL 10-57 § 4 vacated Executive Order 94-3 § 306. PL 10-57 § 3 created a Division of Public Lands within DLNR “headed by a Director serving under the supervision and control of the Secretary and the Board of Public Lands.” 1 CMC § 2671(a). 1 CMC § 2671(b) provided that the Division of Public Lands is the successor to the Marianas Public Lands Corporation pursuant to N.M.I. Const. art. XI §4(f), and assigned all statutory powers and duties of the MPLC to the Division of Public Lands.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

While PL 12-33 vested the authority to implement the homesteading programs in the Board of Public Lands Management and PL 15-2 transferred that authority to the Department of Public Lands, 2 CMC § 4373(a)(2) was not amended. 2 CMC § 4373(a)(2) requires the Department of Lands and Natural Resources to establish standards for homestead tracts in Tinian. PL 15-2 § 3 (§ 108) requires that the Department of Public Lands “assess the demand for homesteads and develop a program for meeting that need, to the extent practicable, within the available land base.” 1 CMC § 2808. Consequently, authority over an agricultural homestead program on Tinian is unclear.

 

MPLC promulgated the 1991 Tinian Agricultural Homestead Program Rules and Regulations pursuant to the authority of PL 6-15 § 3.

 

Part 001 -       General Provisions

 

§ 145-20.3-001            Authority

 

The rules and regulations in this subchapter are hereby promulgated and issued by the Marianas Public Land Corporation (MPLC) pursuant to section 3 of the Tinian Agriculture Homestead Act of 1988 (Public Law 6-15).

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-005            Purpose

 

The purpose of the rules and regulations in this subchapter are to set forth the necessary procedures with respect to agricultural homestead applications; to set out in detail the standards of eligibility; to provide for certain requirements necessary to meet the goals and objectives of the agricultural program; to provide for an efficient system of notice and hearing process for applicants whose applications have been denied, and to provide a basic format for applications and other documents and instruments necessary to administer and implement the agricultural homestead program.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-010            Definitions

 

(a)        “Domicile”: That place where a person has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. The permanent residence of a person or place to which he intends to return even though he may actually reside elsewhere. The established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished reside elsewhere.*

 

*So in original.

 

(b)        “Marriage”: The legal union of one man and one woman as husband and wife. It is a legal status and requires the issuance of a marriage license by the Commonwealth with or without a ceremony by a church.

 

(c)        “Common Law Marriage”: One not solemnized in the ordinary way but created by an agreement to marry, followed by cohabitation. Such a marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, combined with cohabitation sufficient to allow the fulfillment of necessary elements to the relationship of man and wife, and an assumption of marital duties and obligations. The burden to prove such relationship lies with the applicant, however, the existence of children whose birth certificates list both parties to such a relationship as parents shall constitute a prima facie showing of the existence of the relationship. For purposes of the regulations in this subchapter only, the definition of spouse shall include either party to a “common law” marriage.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Commission Comment: The Commission inserted quotation marks around terms defined.

 

Part 100 -       Tinian Agricultural Homestead Program Requirements

 

§ 145-20.3-101            Designation of Homestead Areas

 

The Marianas Public Land Corporation may from time to time designate areas suitable for farming and agricultural activities, and shall use such designated areas for the distribution of agriculture homestead lots. No applicant may be granted an agriculture homestead lot outside of the designated area without the prior approval of the Board of Directors.

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-105            Establishment of Area

 

All eligible applicants shall be entitled to a maximum area of one hectare or 10,000 square meters of agricultural land.

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-110            Persons Eligible to Homestead

 

All applicants for agriculture homestead lots must meet and satisfy all of the following criteria:

 

(a)        An applicant must be 18 years of age, or over, and is a citizen of the Commonwealth of the Northern Marianas, and of Northern Marianas descent as provided for in the CNMI Constitution.

 

(b)        An applicant must have been domiciled on the island of Tinian for not less than five years.

 

(c)        An applicant or his/her spouse must not own or have an interest in agricultural land within the Commonwealth of the Northern Marianas which equals or exceeds ½ hectare or 5,000 contiguous square meters.

 

(d)       An applicant or his/her spouse must not have been a recipient of an agriculture homestead lot from a previous agricultural homesteading program.

 

(e)        An applicant shall not receive more than one agriculture homestead lot.

 

(f)        A person is not eligible to apply for a homestead within the first six months after ceasing to cohabitate with an applicant or recipient of an agricultural homestead lot. Additionally, if an applicant resumes cohabitating with another applicant or recipient of an agricultural homestead lot within six months after receiving a permit to homestead, the permit shall be considered void for all purposes.

 

(g)        A person residing with an applicant for, or recipient of an agricultural homestead lot is not eligible to apply for a homestead.

 

(h)        If two applicants marry within the first year of either’s permit, they shall make an election as to which homestead to develop and the other homestead permit shall be deemed void. If an election is not made within two months of the marriage, the most recent permit shall be deemed void.

 

Modified, 1 CMC § 3806(e), (g).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Commission Comment: In subsection (d), the Commission inserted the word “a” before “previous” to correct a manifest error.

 

§ 145-20.3-115            Priority of Applicants

 

The Marianas Public Land Corporation shall prioritize the applications submitted according to the following categories. In order to verify the information provided in the application and in order to accurately determine the actual need and priority for an agricultural homestead lot, MPLC may require the applicant to provide additional documentation as MPLC deems appropriate.

 

(a)        First Priority

(1)        Married applicants whose primary source of income is derived from farming.

(2)        Single applicants whose primary source of income is derived from farming.

 

(b)        Second Priority

(1)        Married applicants whose primary income is derived from sources other than farming.

(2)        Single applicants whose primary income is derived from sources other than farming.

 

(c)        Ineligible Applicants

Those applicants who are determined ineligible to receive agricultural lots due to constitutional and statutory restrictions shall be notified in writing of such determination. The letter notice shall specify the reasons for ineligibility and inform the applicant of a right to appeal the determination within 30 days of the receipt of the notice.

 

(d)       Within each category of eligible applicants, the MPLC shall take into consideration the date of application, so that an earlier applicant shall take precedence over a later applicant, all other factors being equal.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Commission Comment: The final paragraph was not designated. The Commission designated it subsection (d).

 

In subsection (c), the Commission changed “informing” to “inform” to correct a manifest error.

 

§ 145-20.3-120            Application Procedure

 

(a)        All applicants for agricultural homestead shall fill out an application form provided by MPLC. Applications may be submitted in the Saipan Office or directly to the Tinian Office. Applications shall be date stamped by the MPLC when received.

 

(b)        All applications shall be signed and declared under penalty of perjury.

 

(c)        All applications must be accompanied by $100.00 non-refundable application fee.

 

(d)       After submission of an application, MPLC shall verify the eligibility of the applicant and all essential facts set forth by the applicant and if necessary require the applicant to appear before the MPLC Homestead Administrator or his designee for an interview to clarify or verify the information given in the application. Approval or disapproval of application shall be rendered no later than 90 days after receipt of a completed application.

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-125            Issuance of Homestead Permit

 

(a)        Upon approval of the application, the MPLC shall issue a permit to enter upon, use and improve the land once the agricultural tract has been surveyed, monumented, mapped, and is ready for homesteading. The MPLC shall, by drawing of lots, pick up the agriculture lots for eligible applicants.

 

(b)        After a agricultural lot is picked for an eligible applicant, the Corporation shall prepare a agriculture homestead permit for the applicant, and shall give a copy of the map showing the agriculture homestead tract as surveyed and shall also physically show the tract to the homesteaders.

 

(c)        A permit fee of $100.00 shall be paid by the homesteaders due and payable at the time the permit is executed.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (c).

 

In subsection (a), the Commission inserted the word “is” before “ready” to correct a manifest error.

 

§ 145-20.3-130            Conditions of Occupancy

 

(a)        The homesteader shall enter upon and commence the use and improvement of the agriculture lot consistent with a land utilization and planting program approved by MPLC within 90 days after the receipt of the permit. Homesteader may develop his/her own land utilization planting program, but shall obtain written approval from MPLC prior to actual use and occupancy of the homestead lot. Upon noncompliance with the foregoing, the permit shall expire and be null and void and the homesteader shall be construed to have waived all rights in and to the land. Upon such occupancy, MPLC shall have the right to enter and possess the land.

 

(b)        The homesteader shall, at all times maintain all boundaries clear of any and all weeds, trash and underbrush.

 

(c)        MPLC shall show the homesteader the actual boundaries of the homestead lot. However, any subsequent request by homesteader for relocation of boundaries by MPLC may be undertaken only after a $300.00 fee is paid in advance.

 

(d)       During the period of occupancy, the homesteader shall observe and comply with all rules, regulations and requirements concerning the use, occupation and development of the homestead lot.

 

(e)        No permanent structure, e.g. reinforced concrete or hollow concrete blocked construction is allowed during the term of the permit. All temporary construction for housing of people shall provide sanitation facilities approved by the Division of Environmental Qualities (DEQ).

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-135            Homestead Progress Inspection

 

(a)        The MPLC shall conduct inspections of the homestead at least once a year, or more often as it deems necessary to determine compliance with the homestead requirements. Notice of inspection shall be given the homesteader at least ten days in advance.

 

(b)        After each inspection the homestead inspection team shall issue a brief report on the progress of and the compliance of the homesteader.

 

(c)        In the event that a homesteader is not complying with the homestead requirements, the inspection team shall so note in its report and inform the homesteader of the requirement he/she is not complying with. Appropriate written warnings shall be given the homesteader. Such notice shall contain specific correcting action to be taken by the homesteader to bring himself into compliance with the homestead requirements.

 

(d)       All inspection reports shall be signed by the inspection team chairperson and all participating team members.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-140            Deeds of Conveyance

 

Deeds of conveyance shall be issued by the Marianas Public Land Corporation for homestead lots entered pursuant to the Tinian Agriculture Homestead Act of 1988 upon maturity of the permit, and only upon execution of a certification by the Marianas Public Land Corporation certifying that the homesteader has resided on the island of Tinian for three years from the date of entry upon the homestead lot and has complied with all laws, rules and regulations appertaining to the homestead. MPLC shall issue the deed of conveyance within six months of the time the homesteader becomes eligible to receive the deed of conveyance.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-145            Transfer of Homestead Permit

 

No rights in or to a homestead permit shall be sold, assigned, leased, transferred or encumbered; except that in the event of the death of the homesteader prior to the issuance of a deed of conveyance, all rights under the permit shall inure to the benefit of such person or persons, if any, as the homesteaders shall designate in the permit or letter filed with the Marianas Public Land Corporation. In the event no designation is made by the homesteader, then the permit shall be revoked, and the land, together with all appurtenances thereto entered thereunder, shall revert to MPLC or its successor.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-150            Penalties

 

(a)        Grounds for Revocation of Permit

If at any time after the issuance of the homestead permit, and before the expiration of the permit period, the homesteader abandoned the land or fail to comply with the laws, then the permit shall be revoked and the land shall revert to MPLC or its successor. The Marianas Public Land Corporation may at its discretion allow the homesteader an extension of the permit period.

 

(b)        Grounds for Disqualification

(1)        If an applicant knowingly and willfully submits false information to MPLC under penalty of perjury, the matter shall be referred to the Attorney General for prosecution and the applicant’s permit shall be revoked and disqualified from participation in the agriculture homesteading program.

(2)        If an applicant negligently or recklessly submits false information to MPLC or otherwise misleads MPLC, the applicant may be disqualified from participation in the agriculture homestead program permanently or for a period of time to be determined by the Board.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-155            Notice and Hearing

 

An applicant whose application for an agricultural homestead has been received, verified, and found not eligible, shall be informed in writing of such decision, the reason therefore, and a right to appeal the decision within 30 days of the date of the letter. Such hearing shall be held no later than 90 days after receipt of such notice by the applicant. The applicant has the right to be represented by a counsel of his/her choosing and to bring witnesses to the said hearing. No later than 30 days after the hearing, the committee, on behalf of the Corporation, shall issue its decision. If the committee finds that it should deny the application, a written, decision to that effect shall be prepared and given to the applicant. Such a decision shall be deemed final.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

§ 145-20.3-160            Waiver

 

The Marianas Public Land Corporation upon recommendation of the inspection team and the Homestead Administrator and upon showing of good cause, may waive a homestead requirement in the regulations in this subchapter and the conditions, imposed on the permit; provided that, no restrictive provisions of the Constitution or statute shall be waived.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 

Part 200 -       Miscellaneous Provisions

 

§ 145-20.3-201            Effective Date

 

The rules and regulations promulgated in this subchapter shall be effective and have full force and effect of law thirty days after publication of these rules and regulations in the Commonwealth Register.

 

Modified, 1 CMC § 3806(d), (e).

 

History: Adopted 13 Com. Reg. 7650 (Feb. 15, 1991); Proposed 12 Com. Reg. 7404 (Oct. 15, 1990).

 


SUBCHAPTER 145-20.4

VILLAGE HOMESTEAD RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-20.4-001            Authority

§ 145-20.4-005            Purpose

§ 145-20.4-010            Definitions

 

Part 100          Village Homestead Program Requirements

§ 145-20.4-101            Application Procedure

§ 145-20.4-105            Standards of Eligibility

§ 145-20.4-110            Homestead Issuance Process

§ 145-20.4-115            Homestead Permit Process

§ 145-20.4-120            Homestead Requirements

§ 145-20.4-125            Homestead Permit Revocation

§ 145-20.4-130            Village Homestead Waiver Procedures

§ 145-20.4-135            Appeal

 

Part 200          Miscellaneous Provisions

§ 145-20.4-201            Severability

§ 145-20.4-205            Effective Date


 

Subchapter Authority: 2 CMC § 4338.

 

Subchapter History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Amdts Adopted 12 Com. Reg. 7511 (Dec. 15, 1990); Amdts Proposed 12 Com. Reg. 7107 (June 15, 1990); Amdts Proposed 11 Com. Reg. 6665 (Dec. 15, 1989); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).*

 

*The text of the proposed regulations was not published with the 1980 notice of proposed regulations.

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114.

 

2 CMC §§ 4301-4314 set forth the general statutory provisions governing homesteads in the CNMI and designate MPLC as the agency responsible for implementing homestead laws. PL 1-42 (effective Dec. 19, 1979), the “Village Homesteading Act of 1979,” codified as amended at 2 CMC §§ 4331-4338, established the village homesteading program and authorized MPLC to implement and administer the program. See 2 CMC §§ 4332-4333. PL 1-42 § 7 empowered MPLC to promulgate rules and regulations to carry out the purposes of the act. See 2 CMC § 4338.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.   

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

PL 15-2 § 3 (§ 108) requires that the Department of Public Lands “assess the demand for homesteads and develop a program for meeting that need, to the extent practicable, within the available land base.” 1 CMC § 2808.

 

MPLC promulgated the original regulations in this subchapter. In 2004, MPLA repealed and repromulgated the Village Homestead Rules and Regulations in their entirety pursuant to the authority of PL 12-33.

 

Part 001 -       General Provisions

 

§ 145-20.4-001            Authority

 

The rules and regulations in this subchapter are hereby promulgated and issued by the Marianas Public Lands Authority (MPLA), pursuant to its duties and responsibilities under article XI of the CNMI Constitution, PL 12-33, as amended, and 2 CMC §§ 4331, et seq.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: The 1990 amendments contained authority and purpose provisions as follows:

 

§ 1 Authority

These regulations are promulgated by MPLC pursuant to two independent sources of rule-making authority:

(1)           MPLC’s constitutional authority and

(2)           Section 7 of PL 1-42, as amended - the Village Homesteading Act of 1979, 2 CMC [s]ection 4331, et seq.

 

§ 2 Purpose and Policy of Amendments to Village Homestead Regulations

 

These regulations are promulgated to update and amend the Village Homesteading Regulations promulgated by MPLC on November 3, 1980, published in the Commonwealth Register dated March 30, 1981, at pages 1189 - 1199 and effective on April 30, 1981.

 

In promulgating these regulations, MPLC notes that there has been an ever-increasing number of applicants for village homesteads and an ever-diminishing supply of public lands that may be allocated to village homestead developments. In these regulations village homestead application categories are based upon the legislative criteria established in Public Law 1-42, as amended.

 

For example, the income and asset eligibility criteria are promulgated pursuant to the legislature’s direction that the Act be established for residents “who are without village lots and do not have the means to acquire village lots.” (PL 1-42, [s]ection 2(c)(1), 2 CMC [s]ection 4332(c)(1).) MPLC has determined that it may cost between $20,000 to $100,000 to acquire an average village lot in the CNMI. The income/assets eligibility criteria promulgated in paragraph 3(e) of these regulations will disqualify those applicants who may not own land in the CNMI, but who have sufficient income and/or assets to acquire a village lot in the CNMI.

 

12 Com. Reg. at 7110-11 (June 15, 1990).

 

With respect to MPLC’s authority, see 1 CMC § 2671(b) and the commission comment at the beginning of this subchapter.

 

The MPLA’s 2004 amendments repealed and re-promulgated this subchapter in its entirety. The Commission therefore, cites the 2004 amendments in the history sections throughout this subchapter.

 

§ 145-20.4-005            Purpose

 

The purposes of the rules and regulations in this subchapter is to repeal and repromulgate the Village Homestead Rules and Regulations, as published in the Commonwealth Register, volume 3, number 2 at page 1189 and volume 12, number 6 at page 7107; to provide the standard of eligibility, a system for issuing permits, deeds, notices and appeal rights.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

§ 145-20.4-010            Definitions

 

(a)        “Abandon”: To leave a village homestead lot neglected or showing no improvement during the permit period or to allow a mortgage on the homestead property to go into default, thereby placing the property at risk of foreclosure.

 

(b)        “Administrative Procedure Act” (“APA”): The Commonwealth Administrative Procedure Act, codified at 1 CMC §§ 9101, et seq.

 

(c)        “Applicant”: An individual, married couple or joint applicant who submits a single application for a village homestead lot.

 

(d)       “Authorized Person”: A person duly empowered through a valid power of attorney, to act on behalf of an applicant or homesteader.

 

(e)        “Board of the Marianas Public Lands Authority” (“Board”): The policy-making body for the Marianas Public Lands Authority.

 

(f)        “Commissioner”: The Commissioner of the Marianas Public Lands Authority.

 

(g)        “Hearing Officer”: The MPLA Hearing Officer, including hearing officers pro-tempore appointed by the Board to conduct administrative hearings on homestead matters in accordance with the APA and the MPLA Administrative Hearing Procedure Rules and Regulations.

 

(h)        “Homesteader”: A person granted a village homestead permit.

 

(i)         “Joint Applicants”: Persons who have submitted a village homestead application in their names.

 

(j)         “Land Interest”: Title to or an interest in a parcel of land qualifying as a village lot in the Commonwealth.

 

(k)        “Lottery”: The drawing of a village homestead lot.

 

(l)         “Marianas Public Lands Authority” (“MPLA”): An independent public corporation under the control and general supervision of the Board, and headed by a Commissioner to execute, implement and enforce the policies of the Board.

 

(m)       “Village Lot”: A parcel of land determined by the Marianas Public Lands Authority to be suitable for the construction of a residence and is, or will be, reasonably accessible to water and power utilities.

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Amdts Adopted 12 Com. Reg. 7511 (Dec. 15, 1990); Amdts Proposed 12 Com. Reg. 7107 (June 15, 1990); Amdts Proposed 11 Com. Reg. 6665 (Dec. 15, 1989).

 

Commission Comment: The 2004 amendments repealed and repromulgated this section in its entirety with substantial changes. The Commission inserted quotation marks around terms defined.

 

Part 100 -       Village Homestead Program Requirements

 

§ 145-20.4-101            Application Procedure

 

(a)        Any person applying for a village homestead lot shall fill out and sign under penalty of perjury the village homestead application provided by MPLA.

 

(b)        Any person who submitted an application for a village homestead lot before the passage of the Northern Mariana Islands Village Homesteading Act of 1979, as amended, must also fill out and sign under penalty of perjury the village homestead application.

 

(c)        An applicant shall pay a reasonable application processing fee as set by the Board.

 

(d)       The MPLA shall review the application and may require the applicant to appear before the MPLA to verify accuracy and completeness.

 

(e)        An applicant determined ineligible shall be informed of such determination in writing and the reasons therefor.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Amdts Adopted 12 Com. Reg. 7511 (Dec. 15, 1990); Amdts Proposed 12 Com. Reg. 7107 (June 15, 1990); Amdts Proposed 11 Com. Reg. 6665 (Dec. 15, 1989); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: The 2004 amendments completely rearranged and re-promulgated this part with substantial amendments. The history prior to 2004 is provided where applicable.

 

§ 145-20.4-105            Standards of Eligibility

 

(a)        An applicant is not eligible for a village homestead lot if the applicant, an applicant’s spouse or joint applicant:

(1)        Has been a recipient of a village homestead lot under this program or any previous homestead program;

(2)        Owns a village lot; or

(3)        Has an ownership in a village lot, including an owner of land who has divested himself or herself of his or her possessory right through lease.

 

(b)        In determining whether an applicant, has an interest in a village lot, the following shall be considered:

(1)        Whether an applicant has an undivided interest in land, through inheritance or otherwise, that meets the definition of a village lot; or

(2)        Whether an applicant has conveyed his or her interest in a village lot to a corporation, trust or other entity owned, in whole or in part, by him or her.

 

(c)        If an applicant knowingly and willfully submits false information under penalty of perjury to MPLA, he or she shall be permanently disqualified from participating in the village homestead program.

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Amdts Adopted 12 Com. Reg. 7511 (Dec. 15, 1990); Amdts Proposed 12 Com. Reg. 7107 (June 15, 1990); Amdts Proposed 11 Com. Reg. 6665 (Dec. 15, 1989); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

§ 145-20.4-110            Homestead Issuance Process

 

(a)        The granting of a homestead lot shall be based on the date the applicant submits a completed application and required documents to MPLA.

 

(b)        An applicant eligible to participate in a lottery shall be informed in writing of the date, time, and location of the lottery and location of homestead lots to be distributed. An applicant need not be preset at the time of the lottery, but must designate, through a power of attorney, a person who will participate in the lottery on his or her behalf.

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

§ 145-20.4-115            Homestead Permit Process

 

(a)        A lottery participant shall be issued a homestead permit to the homestead lot drawn, provided that an environmental impact assessment had been conducted and completed prior to the lottery.

 

(b)        The homesteader shall be given a copy of the homestead permit and shall be shown the actual boundaries of the lot. The homesteader must sign a form indicating he or she was shown the lot and its boundaries.

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

Public Law 17-26 (effective December 16, 2010) amended § 145-20.4-115 to require the Department of Public Lands to conduct and complete an environmental impact assessment prior to having qualified homesteaders participate in the lottery of available homestead lots.

 

§ 145-20.4-120            Homestead Requirements

 

A homesteader shall:

 

(a)        Enter, use and improve the homestead lot within 120 days and complete a single family residence within two years after the issuance of a homestead permit;

 

(b)        Commence to reside in his or her homestead as his or her principal place of residence no later than the end of the second year after the issuance of the homestead permit, and continually reside throughout the third year; and

 

(c)        Not lease, assign, sell, or transfer the homestead lot during the permit period.

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Amdts Adopted 12 Com. Reg. 7511 (Dec. 15, 1990); Amdts Proposed 12 Com. Reg. 7107 (June 15, 1990); Amdts Proposed 11 Com. Reg. 6665 (Dec. 15, 1989); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

Public Law 17-4 (effective June 17, 2010) amended 2 CMC § 4335 by adding a new subsection (d) to allow the Department of Public Lands to waive the requirement or policy of re-building a second residential dwelling when it has been determined or proven that the homesteader’s initial residential dwelling house was destroyed or severely damaged by typhoon, tsunami, or other natural or man-made disasters.

 

Public Law 17-37 (effective April 4, 2011) amended 2 CMC § 4335 by adding a new subsection (e) to allow the Department of Public Lands to waive the requirement or policy of completing a single family residential dwelling structure within two years of issuance of a village homestead permit upon the homesteader’s showing reasonable justification or explanation that a minimum of ten thousand dollars has been invested in the homestead lot.

 

§ 145-20.4-125            Homestead Permit Revocation

 

A homestead permit may be revoked if the homesteader:

 

(a)        Fails to clear the homestead lot and construct a single-family residence within two years after issuance of the permit;

 

(b)        Fails to comply with the homestead permit or as otherwise provided in the rules and regulations in this subchapter;

 

(c)        Fails to use the homestead lot as his or her principal residence within two years after issuance of the permit;

 

(d)       Abandons the homestead lot during the permit period;

 

(e)        Sells or attempts to sell, conveys, leases or rents the homestead;

 

(f)        Allows another person to occupy the homestead in place of the homesteader without securing written authorization from MPLA;

 

(g)        Fails to maintain the homestead lot in a clean, safe and sanitary condition; or

 

(h)        Provides false information in the village homestead application or other required documents.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

Public Law 17-4 (effective June 17, 2010) amended 2 CMC § 4335 by adding a new subsection (d) to allow the Department of Public Lands to waive the requirement or policy of re-building a second residential dwelling when it has been determined or proven that the homesteader’s initial residential dwelling house was destroyed or severely damaged by typhoon, tsunami, or other natural or man-made disasters.

 

Public Law 17-37 (effective April 4, 2011) amended 2 CMC § 4335 by adding a new subsection (e) to allow the Department of Public Lands to waive the requirement or policy of completing a single family residential dwelling structure within two years of issuance of a village homestead permit upon the homesteader’s showing reasonable justification or explanation that a minimum of ten thousand dollars has been invested in the homestead lot.

 

§ 145-20.4-130            Village Homestead Waiver Procedures

 

Any person who has continuously used and occupied public land for at least fifteen years prior to January 9, 1978 is eligible for a village homestead lot, provided that the following procedures and requirements shall be applicable:

 

(a)        The applicant must be eligible to homestead a village lot and must fill out a village homestead application provided by the MPLA;

 

(b)        The applicant must submit an affidavit or declaration under penalty of perjury that he or she has been continuously using and occupying the public land for at least fifteen years prior to January 9, 1978;

 

(c)        After submission of an application, the MPLA shall review the application, and may require additional proof to substantiate the claim; and

 

(d)       Upon approval of the application by MPLA, a certificate of compliance shall be issued to the applicant for the parcel of public land he or she has been using and occupying, which shall not exceed 1,000 square meters, provided that an official survey plat is prepared prior to issuance of the certificate of compliance. Upon approval of the Board a quitclaim deed shall be issued to the applicant.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

Public Law 17-4 (effective June 17, 2010) amended 2 CMC § 4335 by adding a new subsection (d) to allow the Department of Public Lands to waive the requirement or policy of re-building a second residential dwelling when it has been determined or proven that the homesteader’s initial residential dwelling house was destroyed or severely damaged by typhoon, tsunami, or other natural or man-made disasters.

 

Public Law 17-37 (effective April 4, 2011) amended 2 CMC § 4335 by adding a new subsection (e) to allow the Department of Public Lands to waive the requirement or policy of completing a single family residential dwelling structure within two years of issuance of a village homestead permit upon the homesteader’s showing reasonable justification or explanation that a minimum of ten thousand dollars has been invested in the homestead lot.

 

§ 145-20.4-135            Appeal

 

Any person or party aggrieved by an adverse action by MPLA may appeal to the Hearing Officer pursuant to the MPLA Administrative Hearing Procedure Rules and Regulations [NMIAC, title 145, chapter 10].

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004).

 

Commission Comment: See the commission comment to § 145-20.4-101.

 

Part 200 -       Miscellaneous Provisions

 

§ 145-20.4-201            Severability

 

If a court of competent jurisdiction shall hold any provision of the rules and regulations in this subchapter invalid, the remainder of these rules and regulations, other than those held invalid, shall not be affected.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004).

 

§ 145-20.4-205            Effective Date

 

The rules and regulations in this subchapter shall take effect upon notice of their final adoption as provided by the APA.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 26 Com. Reg. 23120 (Aug. 26, 2004); Amdts Proposed 26 Com. Reg. 22158 (Mar. 23, 2004); Adopted 3 Com. Reg. 1189 (Mar. 30, 1981); Proposed 2 Com. Reg. 973 (Nov. 17, 1980).

 

Commission Comment: The 2004 amendments deleted former appendices A through E.

 


CHAPTER 145-30

COMMERCIAL USE OF MANAGAHA ISLAND RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-30-001   Findings

§ 145-30-005   Policy

§ 145-30-010   Purpose

§ 145-30-015   Definitions

 

Part 100          Commercial Use of the Island

§ 145-30-101   Uses and Privileges

§ 145-30-105   Enforcement of Regulations

§ 145-30-110   Management and Maintenance of Island

§ 145-30-115   Storm Conditions

§ 145-30-120   Hours of Operation

§ 145-30-125   Signs and Advertisements on the Premises

§ 145-30-130   Government Requirements

§ 145-30-135   Public Security

 

Part 200          The Managaha Pier

§ 145-30-201   Applicable Regulations

§ 145-30-205   Use of Pier

§ 145-30-210   Collection of Landing and User Fees

 

Part 300          Other Activities

§ 145-30-301   Cultural Events

§ 145-30-305   Commercial Photography

§ 145-30-310   Collection of Medicinal Plants

 

Part 400          Miscellaneous Provisions

§ 145-30-401   Waiver

§ 145-30-405   Discrimination Prohibited

§ 145-30-410   Effective Date


 

Chapter Authority: N.M.I. Const. art. XI §3; N.M.I. Const. art XIV § 2.

 

Chapter History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

MPLC promulgated the 1993 Commercial Use of Managaha Island Rules and Regulations pursuant to its constitutional authority.

 

PL 18-42 (Mar. 27, 2014) amended 1 CMC § 2653 to specify that the Department of Lands and Natural Resources is to manage the preservation, protection, and maintenance of Managaha in consultation with the Department of Public Lands. PL 18-42 did not supersede the existing Commercial Use of Managaha Island regulations.

 

Part 001 -       General Provisions

 

§ 145-30-001   Findings

 

The Corporation makes the following findings in support of the regulations in this subchapter:

 

(a)        The Corporation has the authority to manage and dispose of public lands, including Managaha Island, under article XI, § 3 of the CNMI Constitution. Managaha Island is to be maintained as an uninhabited place and used only for cultural and recreational purposes under article XIV, § 2 of the CNMI Constitution.

 

(b)        The recreational and cultural use of Managaha Island is threatened unless there is daily trash collection and removal, sanitary toilet facilities, the provision of water and electricity to run those facilities, shelter, and the improvement and maintenance of the pier.

 

(c)        The Corporation must resort to the private sector to provide the necessary facilities and to repair, operate, and maintain them. This can only be accomplished if a private company is granted the right to engage in limited commercial activity on the island and there is a source of funding for the costs incurred in repairs, maintenance and the delivery of services.

 

(d)       Commercial activity which provides food, beverages, beach equipment, water sports equipment and tours will promote the use of Managaha Island, thus serving the constitutional objectives in management. There is, however, a need to limit the amount of commercial activity on Managaha Island in order to protect its resources. The presence of numerous competing concessions will result in difficulties in island management and the maintenance of island facilities. And, the proliferation of concession stands will lead to the loss of scenic beauty and tranquility. Therefore, it is determined that commercial competition on the island will be eliminated. One main concessionaire will be responsible for commercial activities as well as island maintenance and the provision of public services. The sales and rental activities of that concessionaire shall be limited to a designated area. In addition, in order to ensure that Northern Mariana descent entrepreneurs will participate in the commercial activities on Managaha Island, up to three limited subconcessions will be granted in the areas of food service, human powered watercraft and wind powered watercraft.

 

(e)        Since December 1, 1989, the main concession pavilion has been rebuilt to provide a better quality facility with sanitary cooking facilities, seating that is covered from the rain and the sun, public showers, clean restrooms, and a first aid room. The food subconcession pavilion has been rebuilt to replace termite and weather damaged beams with new members of better quality. All the public pala palas have been rebuilt with new materials. The septic tank system was redesigned as were the well and the plumbing; the electrical system was replaced; and, the generator was housed in a soundproofed building. The cost of these repairs is greater than $900,000.00. All of this work will improve the recreational and cultural use of the island by residents and tourists alike.

 

(f)        The Managaha pier has been renovated to prevent injuries to users and the eventual total loss of the pier through storm damage. The cost of completion of this project is approximately $350,000.00.

 

(g)        There has been a landscaping and revegetation project to protect the island from erosion, to provide more shade to users, and to eliminate noxious plants. This project is ongoing. In addition, there are the continuous costs of security, power generation, pump operation, cleanup, lifeguards, free transportation to local residents and maintenance of island facilities and infrastructure.

 

(h)        In order to fund these repairs, improvements, and ongoing operational costs, the Corporation has determined that a landing and user fee shall be charged to all boat and tour operators that bring tourists to Managaha Island. This is because the economic benefits derived from these expenditures primarily accrue to boat and tour operators. These fees shall be used only to fund or reimburse the main concessionaire for the provision of certain services and benefits to the public.

 

(i)         The regulations in this subchapter shall set forth the limitations on commercial activities on Managaha Island, the responsibilities of the main concessionaire in providing public benefits, and the collection and use of the landing and user fees.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The Commission corrected the spelling of the word “tranquility” in subsection (d) pursuant to 1 CMC § 3806(g).

 

§ 145-30-005   Policy

 

It is the policy of MPLC, as mandated by article XI, § 3 and article XIV, § 2, of the Constitution of the Commonwealth of the Northern Mariana Islands, to permit concessions on the island only under carefully controlled safeguards against unregulated and indiscriminate use so that heavy visitation by tourists will not unduly impair the Island resources. Concession activities shall be limited to those necessary and appropriate for public use and enjoyment of the island and that are consistent to the highest practical degree with the preservation and conservation of the Island.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-010   Purpose

 

The purpose of the rules and regulations in this subchapter is to set forth certain restrictions on commercial activities on Managaha Island; to publish regulations for the use of the Managaha pier; to establish a landing and user fee for the use of the pier by commercial operators; to set forth rules governing commercial photography on the island and for other miscellaneous purposes related to these activities.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Proposed 39 Com. Reg. 32777 (Aug. 29, 2012);* Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: *A notice of adoption for the August 2012 proposed regulations were never published to date.

 

§ 145-30-015   Definitions

 

(a)        “Commercial Activity”: Any activity conducted on island for profit (or resulting in profit) by an enterprise or person required to have a business license to conduct the activity.

 

(b)        “Commercial Concession”: Any facility which prepares, delivers, sells or provides food or beverages on the island; any facility which rents or sells water sports equipment, recreational equipment, or beach equipment and related supplies; any operation which conducts tours on the island or from the island; and, any merchant which sells goods or services of any nature on the island.

 

(c)        “Corporation”: The Marianas Public Land Corporation (“MPLC”).

 

(d)       “Designated Concessionaire”: Whoever the Corporation designates to operate commercial concessions on the island. This term includes both the concessionaire and subconcessionaires.

 

(e)        “Designated Concession Area”: That portion of the main pavilion and other areas delineated in exhibit # 1.

 

(f)        “Island”: Managaha Island.

 

(g)        “Boat and Tour Operators”: Any person who transports tourists to the island for any type of fee or other compensation.

 

(h)        “Tourist”: A person who is not a resident of the CNMI.

 

Modified, 1 CMC § 3806(f).

 

History: Proposed 39 Com. Reg. 32777 (Aug. 29, 2012);* Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The referenced exhibit # 1 was not published with the proposed or adopted regulations.

 

*A notice of adoption for the August 2012 proposed regulations were never published to date.

 

Part 100 -       Commercial Use of the Island

 

§ 145-30-101   Uses and Privileges

 

(a)        All commercial activity including conveniences such as food, beverages, recreational equipment and the like shall only be provided by one concessionaire and three subconcessionaires.

 

(b)        Any commercial activity shall take place only in the designated concession area.

 

(c)        The exclusive right to operate all commercial concessions does not include the exclusive right to provide transportation to and from the island; provided, however, that if the Corporation, Coastal Resources Management Office (CRMO), or any other agency determines that the number of tourists visiting the island must at any present or future time be limited, then the concessionaire shall have the right to carry the full amount of passengers permitted under the restriction, unless the Corporation reasonably determines that the concessionaire is not capable of such a capacity. In such a case, the concessionaire shall be permitted to carry that number of passengers it is capable of carrying. This, however is subject to the subconcessionaire’s privilege of providing transportation to that number of passengers it is entitled to serve meals to, so long as the number of passengers permitted to be carried to Managaha Island is no fewer than the number permitted under any current CRM permit for the island.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Proposed 39 Com. Reg. 32777 (Aug. 29, 2012);* Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: In subsection (c), the Commission deleted the repeated word “meals” before “subconcessionaire’s privilege.”

 

*A notice of adoption for the August 2012 proposed regulations were never published to date.

 

§ 145-30-105   Enforcement of Regulations

 

(a)        MPLC through its Executive Director or its designee, shall be responsible for the enforcement of the regulations in this subchapter.

 

(b)        MPLC shall provide any person determined to have violated the regulations in this chapter with written notice of the nature of the violation and the corrective action to be taken.

 

(c)        If, after a reasonable time to comply having passed, the violation continues or is repeated, MPLC may take appropriate corrective measures. In the case of boat and tour operators, this may include the loss of the license to use the pier.

 

(d)       Any person aggrieved by a decision or order of MPLC made pursuant to this section may appeal such decision or order to the Board of Directors of MPLC, within ten days thereof. The Board shall promptly afford such person notice of, and the opportunity to be heard, at a hearing within 30 days after filing the appeal and the Board of Directors decision shall be released not more than twenty days after the final hearing.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-110   Management and Maintenance of Island

 

(a)        It shall be the responsibility of the concessionaire to perform the following services for the public’s benefit:

(1)        Clean up of trash on entire island and dispose of it on a daily basis;

(2)        Maintain the toilet and locker room facilities located within the main pavilion and the shower facilities near the pavilion in clean order and good operating condition;

(3)        Maintain the other improvements within the exclusive concession area;

(4)        Provide security services on the island;

(5)        Provide free of charge to local residents, on a 24 hour advance reservation basis, 20% of the seating capacity on regularly scheduled daily round trips to the island for passengers, and if the full 20% is not so utilized, then the designated concessionaire shall provide free of charge to local residents, the remainder of that number of seats upon request, if available and not committed to other persons;

(6)        Maintain the landscaping of the vegetation of the island;

(7)        Provide a lifeguard to supervise the activities of those persons using the roped-off swimming zone on the west side of the island north of the main pier during the concessionaire’s daylight operating hours.

 

(b)        A subconcessionaire shall perform the following services for the public’s benefit:

(1)        Maintain the improvements within its concession area. This includes the pala pala and its improvements provided to the subconcession for meals;

(2)        Take appropriate measures to insure the safety of its customers. A subconcessionaire renting watercraft or equipment shall keep its customers under observation at all times and shall maintain in operating condition the means to rescue them should trouble occur.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: In subsection (a)(3), the Commission changed the final period to a semi-colon to ensure consistent punctuation.

 

§ 145-30-115   Storm Conditions

 

When typhoon condition no. 2 is declared, or when the Executive Director of the Corporation determines that it is unsafe to land passengers at the Managaha pier, the concessionaire shall be relieved of its obligations to operate the utilities on the island, including water, power, toilets, lifeguard, ranger, and public security. The concessionaire shall take reasonable measures to protect the main pavilion and generator house from storm damage. The subconcessionaires shall also secure their property against damage.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The Commission inserted the final period.

 

§ 145-30-120   Hours of Operation

 

The designated concessionaire shall operate its concession between 7:00 a.m. and 5:00 p.m. daily. The designated concessionaire may operate at night after providing a written request to the Corporation at least 24 hours in advance and receiving a written consent. Boat and tour operators are prohibited from landing tourists on the island outside of these hours without the prior written consent of the Corporation.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-125   Signs and Advertisements on the Premises

 

(a)        The concessionaire may display, erect, install, paint or place any signs or other advertisements on or about the exterior of the building within the exclusive concession area, as it deems necessary and proper in the conduct of its activities. The Corporation, however, reserves the right to order the concessionaire to remove signs, displays, advertisements or decorations if they are, in the opinion of the Corporation, offensive to the public are detrimental to the appearance of the island or are unrelated to the use of the island. The Corporation shall provide notice to remove the signs to the concessionaire. If the signs are not removed within fifteen days after receipt of the written notice, the Corporation reserves the right to enter the main building concession and remove them at the expense of the concessionaire.

 

(b)        Subconcessionaires are restricted to advertising within their premises. As used in this section, “premises” means the pala pala closest to the dock for the food subconcession and the free standing stalls for the wind powered and human powered watercraft subconcessions.

 

(c)        No advertisements shall be permitted anywhere else on the island or its pier, except as provided in this section.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-130   Government Requirements

 

The designated concessionaire shall procure all necessary business licenses, food handling permits, and other certificates required by the government and its agencies for their daily operations on Managaha Island. The designated concessionaires shall observe and comply with the provisions of all laws and rules and regulations with respect to their operation on Managaha Island.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-135   Public Security

 

(a)        The concessionaire is responsible for providing a security guard to patrol the island at night. The security guard shall use its best efforts to protect the property belonging to the concessionaire, the subconcessionaires and the Corporation from theft and vandalism. However, the concessionaire and MPLC shall assume no responsibility for any property damage which may occur which does not occur through their own acts or negligent failure to act.

 

(b)        The concessionaire shall provide a lifeguard to supervise the activities of those persons using the roped-off swimming zone on the west side of the island north of the main pier, during the concessionaire’s daylight operating hours. The lifeguard shall be trained in first aid and water safety.

 

(c)        Subconcessionaires responsible for selling or renting wind powered and human powered watercraft shall be responsible for watching the users of their watercraft and shall have the means to rescue them in the event that they are in trouble. The concessionaire and the Corporation shall not be responsible for lifeguarding the activities of users of watercraft or swimmers outside of the swimming zone.

 

(d)       The concessionaire shall hire two ranger/enforcement officers. It shall be the duty of the enforcement officer to maintain public security and record the landings of tourists for the purpose of collecting user fees.

 

(e)        In order to ensure public safety and the effective enforcement of the regulations, all subconcessionaires shall cooperate with the ranger/enforcement officers on Managaha Island and follow the directives of such officers. The ranger/enforcement officers shall have access at all times to the areas of operation of the subconcessionaires on the island for the purpose of providing security or recording user fees.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Part 200 -       The Managaha Pier

 

§ 145-30-201   Applicable Regulations

 

In addition to the regulations contained in this part, any applicable federal and CNMI regulations shall govern water and pier use.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-205   Use of Pier

 

(a)        The engines of any vessel lying at the pier shall not be tried or tested except as part of a routine predeparture warming up of engines.

 

(b)        No person shall make any repairs or do any kind of manufacturing, construction, or maintenance work in the vicinity of the pier or on a vessel lying at the pier without MPLC’s written consent.

 

(c)        The pier is only to be used for the loading and unloading of passengers without the express written permission of the Corporation. Each vessel is required to provide sufficient staff and equipment, including gangplank or other devise, to ensure the safe loading and unloading of its passengers.

 

(d)       No fowl, animal, or livestock of any kind shall be present on any vessel lying at the pier.

 

(e)        No rubbish, swill, garbage, or refuse shall be present on any vessel lying at the pier unless it is being removed from the island and is protected from spillage in proper containers.

 

(f)        Smoking is prohibited on the pier and on vessels lying at the pier.

 

(g)        The transferring of fuel between tanks or from boat to boat while lying at the pier is prohibited.

 

(h)        No substance of any kind shall be deposited on the pier or dumped over the side of any vessel while lying at the pier except with the prior express written permission of the Corporation.

 

(i)         All Commonwealth Port Authority Harbor Regulations [NMIAC, title 40, subchapter 20.1] not inconsistent with the regulations in this part are adopted and compliance with those regulations is required.

 

(j)         Whenever, under applicable federal or Commonwealth regulation or statute, a person is required to report, a simultaneous written report shall be made to the Executive Director of the Corporation. Reporting to the Corporation, however, does not relieve a person from filing required reports with other authorities.

 

(k)        The pier is under the supervision and control of the Corporation and is maintained for the use of boat and tour operators. Accordingly, they are given first priority and recreational boaters may only use the pier to load and unload passengers if such use does not interfere.

 

(l)         All vessels licensed to carry passengers shall land at the pier. No licensed vessel may land on any part of the beach without the prior written permission of MPLC.

 

(m)       No vessel may lie at the pier except when actively loading and unloading passengers unless approval is first obtained from the ranger/enforcement officer.

 

(n)        All vessels using the pier shall follow the instruction of the ranger/enforcement officer.

 

(o)        A boat and tour operator is primarily responsible for the return of all passengers it brings to the island and it may not depart the pier without first making arrangements for the safe return of all its passengers.

 

(p)        Anyone causing damage to the pier is responsible for the cost of repair excepting normal wear and tear.

 

(q)        The captain of any commercial vessel or owner or operator of any private vessel must remain on board the vessel while lying at the pier.

 

(r)        Diving or climbing from or on any part of the pier or vessel lying at the pier is prohibited. Swimming, snorkeling, diving or use of any floatation device within 50 feet of any part of the pier or a vessel lying at the pier is also prohibited. Each vessel approaching the pier is responsible for keeping a lookout to prevent collision with persons in the water surrounding the pier and island.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: In subsection (b), the Commission corrected the spelling of “vicinity.” In subsection (q), the Commission inserted the final period. The Commission inserted commas after the words “construction” in subsection (b), “animal” in subsection (d), and “garbage” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 145-30-210   Collection of Landing and User Fees

 

(a)        The Corporation or its designee shall charge a landing and user fee from all boat and tour operators who bring tourists to the island.

 

(b)        The landing and user fee shall be five dollars per tourist dispatched to the island.

 

(c)        The Corporation or its designee shall be responsible for recording the number of passengers landed by each boat and tour operator on the island. These records shall contain the signature of the boat and tour operator.

 

(d)       There shall not be an extra charge for multiple landings of a tourist if occurring in a single day.

 

(e)        A systematic method of collection of the fee shall be developed by the concessionaire. With the prior approval of the Corporation, a boat and tour operator may be billed on a monthly basis.

 

(f)        The landing and user fees shall be used only for the construction, maintenance, repair, and/or upkeep of the improvements, infrastructure, appearance, safety, and cleanliness of Managaha Island. The landing and user fee shall be reviewed annually to insure that it is used only for the purposes expressed above.

 

(g)        All fees and charges payable under the regulations in this chapter shall be paid when they are incurred or, with the prior written consent of MPLC, within thirty days of demand therefor. In the event that such fees and charges are not paid within thirty days of demand, such fees and charges shall bear interest at the rate of 12% per annum from the date that the demand was made; and in addition, all costs of collection, including attorney fees, shall be paid to MPLC or its designee.

 

Modified, 1 CMC § 3806(d), (e), (f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The Commission inserted a comma after the word “safety” in subsection (f) pursuant to 1 CMC § 3806(g).

 

Part 300 -       Other Activities

 

§ 145-30-301   Cultural Events

 

The Island of Managaha is a unique cultural and recreational resource for the people of the Commonwealth. The Corporation reserves the right to entirely close or limit the number of tourists to Managaha so that the island may be used for a bona fide cultural event.

 

(a)        Any party desiring to use the island for a cultural event shall so inform the Corporation at least 90 days in advance of the event. The notice shall include a description of the event, an explanation of the cultural significance of the event and the number expected to attend. The Corporation, in its sole discretion, shall determine whether or not the event should be allowed and if so, what restrictions should apply. This notice requirement shall not apply to traditional Chief Aghurubw day events held annually at the Carolinian Pavilion.

 

(b)        The Corporation shall notify the designated concessionaire no less than thirty days prior to such limited access or closure. The Corporation shall endeavor to work with the designated concessionaire to schedule such an event for a time with the least impact on the designated concessionaire’s business with the limits set by cultural practices.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-305   Commercial Photography

 

(a)        The Corporation finds that it is common for hotels on Saipan to charge commercial photographers for the use of their premises as locations for photography to be used in public advertisements or entertainment. Further charging for this commercial use of Managaha Island will provide funds for the daily maintenance and upkeep of the island. A photography fee shall be established in accordance with the following criteria:

(1)        The direct and indirect cost to the Corporation of maintaining the island,

(2)        The benefit to the commercial photographer,

(3)        The public policy or interest served,

(4)        The comparable photographic fees assessed by the private sector,

(5)        Other pertinent factors.

 

(b)        No picture may be filmed, and no television production or sound track made on the island by any person other than amateur or bona fide newsreel and news television photographers and soundmen, unless written permission has been obtained from the Corporation.

 

(c)        The taking of photographs, films, or videos of any article of commerce or models for the purpose of commercial advertising without a written permit from the Corporation is prohibited.

 

(d)       The Corporation shall charge a fee of $500.00 per day, or portion thereof, for engaging in commercial photography on Managaha Island.

 

(e)        All fees recovered through the issuance of such permits shall be forwarded to the concessionaire to be placed in a special account for only such fees. The concessionaire shall use these fees only for the construction, maintenance, repair, and/or upkeep of the improvements, infrastructure, appearance, safety, and cleanliness of Managaha Island. The concessionaire shall provide to the Corporation a semiannual accounting of the use of the funds in the special account.

 

(f)        “Commercial photography” is defined as the taking of photographs, films or videos of any article of commerce or models for the purpose of commercial advertising and shall include all photography to be used for advertisements or for public entertainment and all photography for which a fee is paid, either to the model or actor, or to the photographer. It shall not include any photography by government agencies or done on behalf of the Marianas Visitors Bureau for the promotion of tourism in the Northern Marianas Islands.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The Commission inserted commas after the words “films” in subsection (c) and “safety” in subsection (e) pursuant to 1 CMC § 3806(g).

 

§ 145-30-310   Collection of Medicinal Plants

 

(a)        Harvesting of plants for traditional Carolinian medicinal use is permitted, provided that such activity does not damage the plant.

 

(b)        People harvesting medicinal plants are responsible for maintenance of the affected area. All plant remnants and other refuse shall be disposed of in a proper fashion in containers located at the various pala palas.

 

(c)        As the ecology of the island is fragile and in need of protection, the use of medicinal plants shall be limited to citizens of the Commonwealth.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

Commission Comment: The Commission corrected the spelling of the word “affected” in subsection (b) pursuant to 1 CMC § 3806(g).

 

Part 400 -       Miscellaneous Provisions

 

§ 145-30-401   Waiver

 

The Corporation, upon a showing of good cause, may waive the enforcement of the regulations in this chapter; provided that no restrictive provision of the Constitution or statute shall be waived.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-405   Discrimination Prohibited

 

The use and enjoyment of the island and the facilities shall not be in support of any policy which discriminates against anyone based upon race, creed, sex, color, national origin, or any physical handicap.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 

§ 145-30-410   Effective Date

 

The rules and regulations promulgated in this chapter shall be effective and have full force and effect of law thirty days after their publication in the Commonwealth Register.

 

Modified, 1 CMC § 3806(d), (e).

 

History: Adopted 15 Com. Reg. 10876 (Sept. 15, 1993); Proposed 15 Com. Reg. 10631 (May 15, 1993).

 


CHAPTER 145-35

HOUSING PARTNERSHIP REGULATIONS

 

Chapter Authority: N.M.I. Const. art. XI §3; N.M.I. Const. art XIV § 2; 2 CMC § 4338.

 

Chapter History: Emergency 26 Com. Reg. 22638 (June 24, 2004) (effective for 120 days from May 28, 2004).

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.   

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801]. Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

MPLA promulgated the emergency Housing Partnership Regulations effective for 120 days from May 20, 2004. Permanent Housing Partnership Regulations have not been adopted.

 

[Reserved for future Housing Partnership Regulations.]


CHAPTER 145-40

LAND COMPENSATION CLAIMS RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-40-001   Authority

§ 145-40-005   Purpose

§ 145-40-010   Definitions

 

Part 100          Processing of Claims and Methods of Disbursement of Monetary Compensation

§ 145-40-101   Acquisition

§ 145-40-105   Priority

§ 145-40-110   Eligibility and Disbursement of Monetary Compensation

 

Part 200          Appeal; Administrative Hearing Procedure

§ 145-40-201   Hearing Officer

§ 145-40-205   Hearing Conduct and Procedure

§ 145-40-210   Timing for Issuance of Findings, Decision and Order

§ 145-40-215   Appeal of Hearing Officer Findings, Decision or Order

§ 145-40-220   Judicial Review

 

Part 300          Miscellaneous Provisions

§ 145-40-301   Severability


 

Chapter Authority: 2 CMC § 4750.

 

Chapter History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Commission Comment: PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801]. Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

PL 13-17 (effective July 23, 2002), the “Land Compensation Act of 2002,” is codified as amended by PL 13-25 (effective Sept. 20, 2002), PL 13-39 (effective Dec. 13, 2002), PL 13-56 (effective July 25, 2003), PL 14-29 (effective Sept. 21, 2004) and PL 15-2 (effective February 22, 2006) at 2 CMC §§ 4741-4751. PL 13-17, as amended, authorizes the Department of Public Lands to settle claims against the Commonwealth government for land acquired for public purposes. PL 13-25 § 13, codified as amended at 2 CMC § 4750, directs the Department of Public Lands and the Secretary of Public Lands to promulgate regulations to implement the intent of the act.

 

The regulations set forth in this chapter were adopted by the Board of Directors for the Marianas Public Lands Authority in May 2003.

 

Part 001 -       General Provisions

 

§ 145-40-001   Authority

 

The rules and regulations (regulations) in this chapter are hereby promulgated by the Board of Directors for the Marianas Public Lands Authority, Commonwealth of the Northern Mariana Islands (Commonwealth), pursuant to its powers, duties, and authorities under Public Law 13-17, also known as the “Land Compensation Act of 2002,” effective July 23, 2002, as amended by Public Law 13-25, effective September 20, 2002, and Public Law 13-39, effective December 13, 2002.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

§ 145-40-005   Purpose

 

The purpose of the regulations in this chapter is to provide for a comprehensive method of processing claims and disbursing monetary compensation to landowners whose lands had been taken by the Commonwealth for a public purpose, and for the efficient administrative hearing process pursuant to Public Law 13-17, effective July 23, 2002, as amended by Public Law 13-25, effective September 20, 2002, and Public Law 13-39, effective December 13, 2002.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

§ 145-40-010   Definitions

 

(a)        “Acquire” (“Acquisition”). The act by which the Commonwealth first entered and used private land for a public purpose.

 

(b)        “Administrative Procedure Act” (“APA”). The Commonwealth Administrative Procedure Act, codified at 1 CMC §§ 9101, et seq.

 

(c)        “Appraisal”. The act or process of developing an opinion of value on privately owned land and improvement(s) at the time of taking.

 

(d)       “Appraisal Report”. The written or oral communication of an appraisal; the document transmitted to the client upon completion of an appraisal assignment.

 

(e)        “Appraisal Review”. The act or process of developing and communicating an opinion about the quality of another appraiser’s work.

 

(f)        “Appraisal Reviewer”. The in-house MPLA or independent appraisal reviewer appointed by the Board who is a certified general real estate appraiser, licensed to practice in the Northern Mariana Islands; one who reviews the work of other appraisers for completeness, adequacy, relevance, appropriateness, and reasonableness in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).

 

(g)        “Appraiser”. A certified general real estate appraiser, licensed to practice in the Northern Mariana Islands.

 

(h)        “Board of Directors” (“Board”). The policy-making body for the Marianas Public Lands Authority responsible for the management, use and disposition of all Commonwealth submerged and surface public lands pursuant to Public Law 12-33, effective December 5, 2000, as amended by Public Law 12-71, effective November 13, 2001.

 

(i)         “Commissioner”. The MPLA Commissioner or his/her designee.

 

(j)         “Commonwealth”. The Government of the Commonwealth of the Northern Mariana Islands.

 

(k)        “Eligibility for Monetary Compensation”. The legal standing for which landowners are deemed qualified for monetary compensation after the Commonwealth has officially certified private land it acquired for public purposes, and after each claimant case file is officially deemed as complete and final by the Board as recommended by the Commissioner pursuant to § 145-40-101 of this chapter.

 

(l)         “Evidence of Clear Title”. The legal standing for which a landowner is duly registered as the legal owner of property acquired by the Commonwealth pursuant to the authoritative records of the Commonwealth Division of Land Registration and Survey, Office of the Commonwealth Recorder and, when necessary, the valid proof of clear title performed by a licensed title search company.

 

(m)       “Hearing Officer”. The in-house MPLA hearing officer including hearing officer(s) pro tempore appointed by the Board/Commissioner to conduct administrative hearings on land compensation claims as authorized by Public Law 13-25, and in accordance with the APA and part 200 of this chapter.

 

(n)        “Landowner or Owner”. A person of Northern Marianas descent duly registered as the legal owner(s) of real property taken or acquired by the Commonwealth, and the person, persons, entity, or entities qualified to receive monetary compensation pursuant to Public Law 13-17, as amended.

 

(o)        “Land Taking”. Land owned by persons of Northern Marianas descent as defined in article XII of the Commonwealth Constitution, and which had been taken by the Commonwealth for a public purpose.

 

(p)        “Marianas Public Lands Authority” (“MPLA”). The independent public corporation established under the control and general supervision of the Board pursuant to Public Law 12-33, as amended by Public Law 12-71, and headed by the Commissioner, to execute, implement, and enforce the Board’s policies, decisions, orders, and regulations.

 

(q)        “Market Value”. The most probable price as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.

 

(r)        “Monetary or Just Compensation”. The monetary payment offered to a landowner whose land had been taken by the Commonwealth for a public purpose; the amount of compensation offered to the owner based on the appraised market value of the land taken.

 

(s)        “Other Claims”. Any other use of private land acquired by the Commonwealth for a public purpose as defined by 1 CMC § 121.

 

(t)        “Outstanding Land Compensation Claims”. Unsettled land claims against the Commonwealth resulting from the Commonwealth’s acquisition of privately owned lands for a public purpose.

 

(u)        “Party”. Any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in a land compensation claim hearing proceeding against the Commonwealth pursuant to Public Law 13-17, as amended.

 

(v)        “Person”. Any individual, partnership, corporation, association, clan, lineage, governmental subdivision, or public or private organization of any character other than the Commonwealth, who is a landowner disputing a written offer for just compensation by the Commissioner with respect to land taken by the Commonwealth for a public purpose.

 

(w)       “Ponding Basin”. A natural or artificial depression on the soil surface having computed surface area and depth to contain volume of rainfall run-off from watershed or tributary areas within the proximity of roadway facilities.

 

(x)        “Public Purpose”. The acquisition of private land for the public’s benefit as defined by 2 CMC § 4143(e)(1), (2) and (7), and (f).

 

(y)        “Right-of-way”. The public right to pass over land owned by another, usually based upon an easement, path, or thoroughfare.

 

(z)        “Time-of-taking”. The date the Commonwealth first entered and used private land for a public purpose. For purposes of establishing a benchmark year for the time-of-taking prior to the Covenant, all private land acquired by the Commonwealth’s predecessor, the Trust Territory government, for a public purpose before March 24, 1976 will be considered acquired on March 24, 1976.

 

(aa)      “Wetland”. An area inundated or saturated by surface or groundwater with a frequency sufficient to support a prevalence of plant or aquatic life that require saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands include swamps, marshes, mangroves, lakes, natural ponds, surface springs, streams, estuaries, and similar areas in the Northern Mariana Islands chain. (Office of Coastal Resources Management Rules and Regulations promulgated pursuant to 2 CMC §§ 1501, et seq., the Coastal Resources Management Act of 1983 [NMIAC, title 15, chapter 10].)

 

Modified, 1 CMC § 3806(c), (d), (f), (g).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Commission Comment: In subsection (b), the Commission changed “as” to “at” to correct a manifest error. In subsection (aa), the Commission changed “regulation” to “regulations” to correct a manifest error. The Commission inserted commas after the words “appropriateness” in subsection (f), “entity” in subsection (n), “implement” in subsection (p), and “agencies” in subsection (aa) pursuant to 1 CMC § 3806(g).

 

Part 100 -       Processing of Claims and Methods of Disbursement of Monetary Compensation

 

§ 145-40-101   Acquisition

 

(a)        All private property acquired by the Commonwealth must be made pursuant to 2 CMC § 4712, 2 CMC §§ 4141, et seq., and this section, as follows:

(1)        Certification, Declaration or Determination to Acquire. The acquisition of private land for a public purpose as defined in 2 CMC § 4143(e)(2) shall originate at the Office of the Governor and must include the following:

(i)         A certification by the Governor of the public use(s) or purpose(s) for which the Commonwealth is acquiring the land parcel(s), as provided in 2 CMC § 4143(e)(2); or a declaration or determination by the Legislature of the public use(s) or purpose(s) for which the Commonwealth is acquiring the land parcel(s), as provided in 2 CMC § 4143(e)(1);

(ii)        Boundary survey(s) and/or legal description(s); and

(iii)       Identification of encumbrances and disputes, if any.

(2)        Evidence of Clear Title. There shall be a finding of clear title to the land acquired. The Commonwealth may require the owner to furnish a preliminary title report, which verifies that he/she has unencumbered title to the land to be monetarily compensated whenever there is insufficient title evidence as to his/her ownership of the land in question.

(3)        Preliminary Acquisition Notice to Owner. The Office of the Governor shall issue a written preliminary acquisition notice to the owner. The notice, which must be sent by U.S. postal priority mail or hand delivered and acknowledged that it was delivered and received, shall:

(i)         Inform the owner of the Commonwealth’s interest in acquiring his/her land and the public purpose for which it is needed; and

(ii)        Inform the owner of Public Law 13-17 as amended, and the regulations in this chapter, and request written permission to survey and appraise the subject land.

(4)        Survey and Appraisal of Private Land to Be Acquired.

(i)         Upon receipt of the owner’s authorization, the Commonwealth shall survey the owner’s property, if necessary, and secure an approved plat. Concurrently, MPLA shall solicit and contract for an independent appraiser to appraise the property to be acquired in accordance with the Commonwealth Procurement Regulations.

(ii)        MPLA shall give the appraiser reasonable time to complete the appraisal report. MPLA and the appraiser shall agree on the time for completion and submittal of the appraisal report upon execution of the agreement for appraisal assignment.

(5)        Review of Appraisal Report and Determination of Market Value.

(i)         Upon completion and submittal of the appraisal report, MPLA shall either accept the report or require a review. If a review is required, the appraisal reviewer shall have 30 days to review the appraisal report for any deficiencies. The appraisal reviewer shall be given additional time for review if warranted.

(ii)        If the appraisal reviewer finds deficiencies in the appraisal report, MPLA shall notify the appraiser of such deficiencies, and give the appraiser reasonable time to make corrections.

(iii)       If the appraiser refuses to make corrections or change the appraisal report pursuant to the recommendations of the appraisal reviewer, then the appraiser shall submit in writing his/her reasons within 15 days from receipt of the appraisal reviewer’s report on deficiencies.

(iv)       If the appraiser refuses to make corrections or if the appraisal reviewer finds deficiencies after re-submittal, the appraisal reviewer shall submit his/her own recommendation as to the market value of the land.

(v)        MPLA shall determine the market value of the private land based on the appraiser’s report and the appraisal reviewer’s report, if any.

(vi)       MPLA may reject any appraisal report which it determines is unsatisfactory under the requirements of the regulations in this chapter.

(6)        Written Offer to Owner.

(i)         Within 30 days after the determination of market value, MPLA shall transmit a written offer to the owner, which shall be sent by mail or delivered in person with proof of service. The written offer may include the following:

(A)       A recital of the market value of the private land; and

(B)       A copy of any approved appraisal report, subject to copying charges.

(ii)        All written offers shall be subject to approval by the Board.

(iii)       Within 60 days after receipt of the written offer, the owner must either accept or reject the written offer. MPLA shall deem the written offer rejected if the owner fails to respond within 60 days.

(iv)       If the owner rejects in writing the written offer, he/she shall have 30 days to present evidence relevant to the market value of his/her land. If MPLA determines that the evidence presented by the owner warrants a revision of the market value, MPLA may modify the determination of the market value, in consultation with the appraisal reviewer or with the appraiser.

(7)        Land Compensation Settlement Agreement. If the owner agrees to the offer made in the course of the negotiations, MPLA and the owner shall enter into a land compensation settlement agreement, which shall be subject to the approval of the Board at the recommendation of the Commissioner, and include at least the following:

(i)         The agreed value of the owner’s land;

(ii)        The legal description of the owner’s land;

(iii)       The owner’s promise to warrant clear title to the land; and

(iv)       The signatures of the owner and the Board or its designee(s).

(8)        Alternate Means of Acquisition. If the Commonwealth and an owner do not reach an agreement as provided in subsection (a)(7), the Commonwealth may proceed to acquire the private land by other legal means.

(9)        Processing of Monetary Compensation. Within 15 days of the conclusion of negotiations, MPLA shall:

(i)         Prepare a warranty deed for the owner to convey title to his/her land to MPLA; and

(ii)        Pay agreed compensation to the owner.

(10)      Disposition of Acquisition Records, Documents and Reports. All materials for land compensation claims settlement should contain the following:

(i)         Governor’s certification, or the declaration or determination by the Legislature of the public uses or purposes for which the private land is being acquired;

(ii)        Preliminary acquisition notice to owner;

(iii)       Owner response to acquisition notice;

(iv)       Solicitation for appraisal;

(v)        Selection and agreement for appraisal services;

(vi)       Approved survey maps;

(vii)      Approved appraisal report;

(viii)     Appraisal reviewer’s recommendation;

(ix)       Written offers to owner;

(x)        Proof of service and/or acknowledgment;

(xi)       Rejection/request for negotiations by the owner;

(xii)      Owner’s acceptance of offer;

(xiii)     Proof of clear title;

(xiv)     Copy of notice published in the local newspaper or broadcast on local radio, with the dates of publications or broadcasts;

(xv)      Land compensation settlement agreement;

(xvi)     Warranty deed;

(xvii)    Notice to owner to vacate land; and

(xviii)   Any material pertaining to the land compensation.

 

(b)        Impediments Affecting Land Claim. If MPLA determines that a claim contains issues affecting clear title or other impediments preventing timely processing of land acquisition and compensation, the claimant(s) shall be responsible for resolving these impediments. Until these impediments are resolved, MPLA may suspend processing of such claim and proceed to the next claim in priority. After the claimant(s) has resolved these impediments to the satisfaction of MPLA and in accordance with the regulations in this chapter, MPLA will resume processing the claim.

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Commission Comment: In subsection (a)(1)(x), the Commission corrected the spelling of acknowledgment.

 

§ 145-40-105   Priority

 

Priority for compensation is pursuant to Public Law 13-17 § 4(d), based on the time of taking and compliance with the regulations in this chapter, in the following order:

 

(a)        First, rights-of-way;

 

(b)        Second, ponding basins; and

 

(c)        Third, wetlands and other claims.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

§ 145-40-110   Eligibility and Disbursement of Monetary Compensation

 

(a)        The Commissioner shall deem a pending land claim settlement case file complete pursuant to this part, and shall thereafter submit it to the Board for approval.

 

(b)        The Board shall approve land compensation settlements as complete before disbursement of monetary compensation. MPLA shall thereafter notify each land claimant of the Board’s official action, and shall dispose of each settlement case file upon the issuance of a payment check to each claimant.

 

(c)        The Commissioner may advertise all land compensation settlement claims in various media prior to disbursement of payments.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Part 200 -       Appeal; Administrative Hearing Procedure

 

§ 145-40-201   Hearing Officer

 

(a)        Jurisdiction and Authority. Pursuant to Public Law 13-25 § 10, the hearing officer shall have jurisdiction and authority to conduct all hearings and issue final written findings, orders, or decisions on land compensation claims timely requested in writing by landowners who dispute the Commissioner’s written offer of just compensation.

 

(b)        Conflict of Interest and Appearance of Partiality. In the event that the hearing officer has determined that a conflict of interest exists, he/she shall disqualify himself/herself, and request the Board/Commissioner to assign a hearing officer pro tempore to hear and issue written findings, order, or decision on the claim.

 

(c)        Independent Judgment. The hearing officer, in carrying out his/her duties and responsibilities pursuant to the APA and the regulations in this chapter, shall exercise his/her independent judgment on the evidence before him/her, free from pressures by any party, MPLA Board members, MPLA staff, Commonwealth agencies or officials, or any person.

 

(d)       Final Decision. The decision of the hearing officer is final, unless timely appealed to the Board.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Commission Comment: The Commission inserted a comma after the word “order” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 145-40-205   Hearing Conduct and Procedure

 

(a)        Administrative Proceedings. The hearing officer shall conduct and regulate the course of all administrative proceedings, and issue decisions on claims timely filed by any landowner who disputes the method used to determine, or the amount of, just compensation offered by the Commonwealth to resolve a land compensation claim, in accordance with Public Law 13-17, as amended, the APA, and this part of this chapter.

 

(b)        Written Request for Hearing. If, upon a written offer of just compensation, a landowner disputes the method used to determine, or the amount of, the just compensation offered by the Commonwealth to resolve the land compensation claim, the landowner shall have 20 days to make a written request to MPLA for an administrative hearing to protest the offer.

 

(c)        Notice of Status and Scheduling Conference. Following a landowner’s timely filed written request for an administrative hearing, and within 30 days of the filing of the written protest by the landowner, the hearing officer shall issue a notice of status and scheduling conference. The notice shall be served in accordance with the Commonwealth Rules of Civil Procedure. The notice of status and scheduling conference shall include the following.

(1)        The date, time, and place of hearing;

(2)        The nature of the hearing;

(3)        The legal authority and jurisdiction under which the hearing is to be held;

(4)        The matters asserted;

(5)        The names of all parties and other persons to whom notice is being given by the hearing officer;

(6)        The official file or other reference number given to a particular claim; and

(7)        Notice to each party of their right to have an attorney represent them, at their own expense.

 

(d)       Status and Scheduling Conference. The matters to be addressed at such conference are:

(1)        The possibility of a settlement;

(2)        Possible stipulations and admissions;

(3)        The setting of an evidentiary hearing; and

(4)        Such additional matters as may contribute to the orderly and expeditious resolution of the issues.

 

(e)        Notice of Evidentiary Hearing. The hearing officer, during the status conference, shall set the date, time, and place for an evidentiary hearing. Following the status conference, the hearing officer shall issue a written notice for evidentiary hearing, which shall be served in accordance with the Commonwealth Rules of Civil Procedure. The notice shall include the following:

(1)        The date, time, and place of hearing;

(2)        The nature of the hearing;

(3)        The names of all parties and other persons to whom notice is being given by the hearing officer;

(4)        The land compensation claim number;

(5)        Notice to parties of their right to have an attorney represent them if they choose, at their own expense;

(6)        The right to present witnesses; and

(7)        The right to submit documents or other written evidence.

 

(f)        Evidentiary Hearing. The hearing officer shall conduct evidentiary hearings on land compensation protests in order to make determinations on the questions involved in the protest. The hearing officer shall have the general power to:

(1)        Issue subpoenas for attendance of witnesses;

(2)        Issue subpoenas for production of documents;

(3)        Administer oaths;

(4)        Regulate the course of the hearing;

(5)        Hold conferences for the settlement or simplification of the issues;

(6)        Dispose of procedural requests or similar matters;

(7)        Make or recommend orders or decisions in accordance with the APA; and

(8)        Exercise other powers that may be necessary to effectively implement Public Laws 13-17 and 13-25.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

§ 145-40-210   Timing for Issuance of Findings, Decision and Order

 

The hearing officer shall issue his/her findings, order, or decision pursuant to 1 CMC §§ 9110, et seq., within 30 days after the hearing is completed.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Commission Comment: The Commission inserted a comma after the word “order” pursuant to 1 CMC § 3806(g).

 

§ 145-40-215   Appeal of Hearing Officer Findings, Decision or Order

 

Any party adversely affected by findings, order, or decision of the hearing officer may appeal in writing pursuant to Public Law 13-25 § 11.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

§ 145-40-220   Judicial Review

 

Appeal from an order or decision of the Board shall be brought pursuant to Public Law 13-25 § 12.

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 

Part 300 -       Miscellaneous Provisions

 

§ 145-40-301   Severability

 

If any provision of the regulations in this chapter shall be held invalid by a court of competent jurisdiction, the remainder of such regulations, other than those held invalid, shall not be affected.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 25 Com. Reg. 20219 (May 29, 2003); Proposed 25 Com. Reg. 20039 (Feb. 28, 2003); Emergency and Proposed 24 Com. Reg. 19843 (Dec. 27, 2002) (effective for 120 days from Dec. 27, 2002).

 


CHAPTER 145-50

PUBLIC PURPOSE LAND EXCHANGE RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-50-001   Authority

§ 145-50-005   Purpose

§ 145-50-010   Definitions

 

Part 100          Basic Acquisition Policies

§ 145-50-101   Exchanges Based on Fair Market Value

§ 145-50-105   Fair Market Value; Basis

§ 145-50-110   Uneconomic Remnants

§ 145-50-115   Permission for Appraisal

§ 145-50-120   Solicitation and Selection of Appraisers

§ 145-50-125   Appraisers; Conflict of Interest

§ 145-50-130   Review of Appraiser Reports

§ 145-50-135   Proposal to Owner Not to Exceed Estimate

§ 145-50-140   Exchange Based on Fair Market Value

§ 145-50-145   Supplemental Monetary Compensation

§ 145-50-150   Publication of Proposed Land Exchanges

§ 145-50-155   Size and Value Limitations

§ 145-50-160   Prioritization of Land Acquisition

§ 145-50-165   Validity of Past Land Exchanges

§ 145-50-170   Settlement of Lawsuits

 

Part 200          Acquisition and Land Exchange Procedure

§ 145-50-201   Determination to Acquire; Governor’s Certification or Legislature’s Declaration or Determination

§ 145-50-205   Evidence of Title

§ 145-50-210   Issuance of Preliminary Acquisition Notice

§ 145-50-215   Survey and Appraisal of Real Property to Be Acquired

§ 145-50-220   Review of Appraisal Report and Determination of Fair Market Value of Real Property to Be Acquired

§ 145-50-225   Written Proposal to Owner

§ 145-50-230   Owner Does Not Want Land Exchange

§ 145-50-235   Owner Wants Land Exchange

§ 145-50-240   Publication of Proposed Exchange

§ 145-50-245   Processing and Execution of Land Exchange

§ 145-50-250   Disposition of Acquisition Records, Documents and Reports


 

Chapter Authority: 2 CMC § 4146.

 

Chapter History: Proposed 34 Com. Reg. 32302 (Feb. 29, 2012);** Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995);* Adopted 10 Com. Reg. 5418 (Jan. 18, 1988); Proposed 9 Com. Reg. 5256 (Oct. 15, 1987).

 

*The text of the proposed regulations was not published with the March 1995 notice of proposed regulations.

 

**On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption was never published. This subchapter is reserved for future rules and regulations governing the Land Exchange Rules and Regulations.

 

Commission Comment: N.M.I. Const. art. XI, codified as amended at 2 CMC §§ 4111-4115, established the Marianas Public Land Corporation (MPLC), responsible for the management and disposition of public lands. See 2 CMC §§ 4113 and 4114.

 

PL 5-33 (effective June 1, 1987), the “Public Purpose Land Exchange Authorization Act of 1987,” is codified as amended at 2 CMC §§ 4141-4149. The act, as amended by PL 13-17 § 8 (effective July 23, 2002), PL 13-23 (effective Sept. 9, 2002) and PL 14-44 (effective Dec. 2, 2004), authorizes MPLC or its successor to enter into certain land exchange agreements with private landowners. PL 5-33 § 6 empowers MPLC to promulgate rules and regulations to carry out the purposes of the act. See 2 CMC § 4146.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 104 and 306(a):

 

Section 104. Department of Lands and Natural Resources.

 

The Department of Natural Resources is re-designated the Department of Lands and Natural Resources.

 

               

 

Section 306. Department of Lands and Natural Resources

 

(a)           Marianas Public Land Corporation. Pursuant to [N.M.I. Const. art. XI, §4(f)], the Marianas Public Land Corporation is dissolved and its functions transferred to a Division of Public Lands in the Department of Lands and Natural Resources, which shall have at its head a Director of Public Lands.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

In 1997, the Legislature passed the “Public Lands and Natural Resources Administration Act of 1997,” PL 10-57 (effective Apr. 18, 1997), codified as amended at 1 CMC §§ 2651, et seq. PL 10-57 repealed and reenacted chapter 13, division 2 of title 1 of the Commonwealth Code, 1 CMC §§ 2651, et seq., and statutorily established the Department of Lands and Natural Resources (DLNR) with the structure, duties and responsibilities set forth in the act. See 1 CMC § 2651 and the commission comment thereto. 1 CMC § 2654 authorizes the Department of Lands and Natural Resources to adopt rules and regulations in furtherance of its duties and responsibilities.

 

PL 10-57 § 4 vacated Executive Order 94-3 § 306. PL 10-57 § 3 created a Division of Public Lands within DLNR “headed by a Director serving under the supervision and control of the Secretary and the Board of Public Lands.” 1 CMC § 2671(a). 1 CMC § 2671(b) provided that the Division of Public Lands is the successor to the Marianas Public Lands Corporation pursuant to N.M.I. Const. art. XI, §4(f), and assigned all statutory powers and duties of the MPLC to the Division of Public Lands.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to a new Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. The Marianas Public Lands Authority became the successor agency to the Marianas Public Lands Corporation.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands.

 

PL 15-2 changed all references in the Commonwealth Code from the Marianas Public Lands Corporation, Division of Public Lands, Office of Public Lands or the Marianas Public Lands to the “Department of Public Lands.” PL 15-2 § 4 [Commission comment to 1 CMC § 2801].  Public Law 15-64, effective May 30, 2007, changed all references in the Commonwealth Code from Board of Public Lands to “Secretary of Public Lands.” PL 15-64 § 4. For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

The MPLC issued Land Exchanged Rules and Regulations in 1988, pursuant to PL 5-33 § 6, 2 CMC § 4146. See 10 Com. Reg. 5418 (Jan. 18, 1988); 9 Com. Reg. 5256 (Oct. 15, 1987). The DLNR Division of Public Lands promulgated the 1995 Public Purpose Land Exchange Regulations codified in this chapter pursuant to the authority of Executive Order 94-3 § 306 and PL 5-33.

 

Part 001 -       General Provisions

 

§ 145-50-001   Authority

 

The regulations in this chapter are promulgated by the Division of Public Lands of the Department of Lands and Natural Resources pursuant to § 6 of the Public Purpose Land Exchange Authorization Act of 1987, as amended [2 CMC § 4146].

 

Modified, 1 CMC § 3806(d).

 

History: Proposed 34 Com. Reg. 32302 (Feb. 29, 2012); Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption has never been published to date.

 

§ 145-50-005   Purpose

 

The regulations in this chapter are promulgated to repeal and replace in their entirety, the rules and regulations promulgated by the Marianas Public Land Corporation pursuant to the Public Purpose Land Exchange Authorization Act of 1987, published in the Commonwealth Register on January 18, 1988 at pages 5418-5428.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Proposed 34 Com. Reg. 32302 (Feb. 29, 2012); Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption has never been published to date.

 

§ 145-50-010   Definitions

 

(a)        “Division” means the Division of Public Lands of the Department of Lands and Natural Resources.

 

(b)        “Government” means, for purposes of the regulations in this chapter, the agencies involved in the land exchange process, other than the Division of Public Lands.

 

(c)        “Owner” means the person, persons, entity, or entities qualified to receive a land exchange under the Public Purpose Land Exchange Authorization Act of 1987, as amended [2 CMC §§ 4141-4149].

 

Modified, 1 CMC § 3806(d), (f).

 

History: Proposed 34 Com. Reg. 32302 (Feb. 29, 2012); Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption has never been published to date.

 

Part 100 -       Basic Acquisition Policies

 

Commission Comment: On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption has never been published to date.

 

§ 145-50-101   Exchanges Based on Fair Market Value

 

All land exchanges must be based on a “fair market value” ratio as determined and established by an independent appraisal study.

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The Commission created the section titles in part 100.

 

§ 145-50-105   Fair Market Value; Basis

 

The government’s and the Division’s appraisal of fair market value shall be based upon nationally recognized appraisal standards and techniques to the extent that such principles are consistent with the concepts of value under the “eminent domain law” of the CNMI; and, in the case of land being acquired for highway purposes, consistent with federal requirements applicable to valuation of land being acquired for highway purposes.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-110   Uneconomic Remnants

 

If the acquisition of a certain portion of private land will leave an owner with an uneconomic remnant, the government shall also propose to acquire the uneconomic remnant along with that portion of the property needed for the project. An uneconomic remnant is that parcel of an owner’s real property that would otherwise remain in title to the owner but have no utility or economic value to the owner after the government’s acquisition of the owner’s adjoining real property.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-115   Permission for Appraisal

 

Before entering into the negotiation for a land exchange, the government shall obtain written permission from the owner to enter upon and appraise his/her land.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-120   Solicitation and Selection of Appraisers

 

The government shall solicit and select independent appraisers in accordance with the CNMI Procurement Regulations [NMIAC, title 70, subchapter 30.3] promulgated by the Department of Finance pursuant to article X, section 8 of the CNMI Constitution, 1 CMC § 2553(j) and 1 CMC § 2557.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-125   Appraisers; Conflict of Interest

 

No appraiser shall have any interest, direct or indirect, in the real property which he/she appraises for the government or the Division that would in any way conflict with his/her performance of the appraisal. No appraiser shall act as a negotiator for the government, the Division, or the owner in the acquisition of real property which he/she has appraised in connection with the project. Compensation for an appraisal shall not be based on the amount of valuation.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-130   Review of Appraiser Reports

 

(a)        The government or the Division at its option may require its review appraiser or an independent review appraiser to review all appraisal reports for:

(1)        Adequacy of the appraiser’s supporting data and documentation.

(2)        Soundness of the appraiser’s reasoning in conformance with recognized appraisal practices.

(3)        Soundness of the appraiser’s opinion of the fair market value of the property.

 

(b)        If the government or the Division decides to have an appraisal report reviewed, the review appraiser may request the appraiser to make any necessary changes in the appraisal report. After all necessary changes are made, the reviewer shall recommend whether the appraisal report should be accepted. If the appraiser refuses to change the appraisal report pursuant to the recommendations of the review appraiser then the government or the Division shall request the appraiser to explain his/her reasons for not doing so, in writing. The government and the Division may reject any appraisal report which it or they determine is unsatisfactory under the requirements of the regulations in this chapter.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

§ 145-50-135   Proposal to Owner Not to Exceed Estimate

 

The fair market value to be stated in the written proposal to the owner (§ 145-50-220 of this chapter) shall not be more than the fair market value estimate set forth in the approved appraisal report, if any.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-140   Exchange Based on Fair Market Value

 

Public land to be used in the acquisition must be appraised and the fair market value shall be the basis for the ratio of exchange. The size of public land to be used as compensation may be more or less than the private land to be acquired depending on the comparison of the fair market values of the two parcels; provided, that the exchange is equitable.

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-145   Supplemental Monetary Compensation

 

Notwithstanding § 145-50-140, in a land exchange the Division shall use its best efforts to exchange public land which is equal in size and value to the private land which has been taken or is to be acquired. Provided, however, that if the private land which has been taken or is to be acquired is equal in size to, but greater in value than, the public land to be exchanged, the government may offer the owner monetary compensation in addition to a land exchange for the purpose of meeting the value for value requirement of the law.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-150   Publication of Proposed Land Exchanges

 

All proposed land exchanges shall be published in a newspaper of general circulation and broadcast on the local radio and/or television in the CNMI, both in English and the vernacular, once each week for at least four consecutive weeks. Requests from concerned persons for the land exchange for a public hearing which are received within the time frame allocated for the public notice shall be heard as requested.

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-155   Size and Value Limitations

 

Private land which has a fair market value of less than $5,000 or an area of less than 700 square meters shall not be acquired through a land exchange.

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-160   Prioritization of Land Acquisition

 

In considering whether to use land exchange as the method of acquisition of private land, the Division shall take into consideration the many demands on the public lands, the decreasing amount of public land available for land exchange, and the following priorities:

 

(a)        First priority includes all current use of private land by the public where no alternative sites are readily available on public land. First priority also includes all land exchanges pending prior to the publication of the rules and regulations in this chapter.

 

(b)        Second priority includes private land required to accomplish a public project where public land is not readily available for such project.

 

(c)        Third priority includes sites certified to be of historical significance and shoreline and beachfront properties.

 

(d)       Fourth priority includes all wetlands.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-165   Validity of Past Land Exchanges

 

Any land exchange agreement entered into by the Division (or its predecessor) prior to the effective date of Public Law 5-33, June 1, 1987 (2 CMC §§ 4141, et seq.) which accomplished a public purpose as defined in that Act, is hereby deemed to be a lawful and binding agreement in the same manner and to the same extent as if entered into after the effective date of that Act. Provided, however, this section shall not affect pending agreements to exchange all future claims, pursuant to Public Law 5-5, or exchanges related to 1944 land actions, until such claims have been completed.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-170   Settlement of Lawsuits

 

Any land exchange agreement entered into by the Division for the purpose of settling a lawsuit which has actually been filed shall be exempt from the requirements set forth in the rules and regulations in this chapter, provided that the agreement is approved by the court.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Part 200 -       Acquisition and Land Exchange Procedure

 

Commission Comment: On February 27, 2012, the Department of Public Lands published proposed Land Exchange Rules and Regulations pursuant to the authority of PL 15-2. See 32 Com. Reg. 32300 (Feb. 29, 2012). A notice of adoption has never been published to date.

 

§ 145-50-201   Determination to Acquire; Governor’s Certification or Legislature’s Declaration or Determination

 

The acquisition of private real property for a public purpose as defined in Public Law 5-33, as amended, [2 CMC §§ 4141-4149] shall originate at the Office of the Governor and must include the following:

 

(a)        Except as provided in § 145-50-170, a certification by the Governor of the public use(s) or purpose(s) for which the government is acquiring the land parcel(s), as provided in 2 CMC § 4143(e)(2); or a declaration or determination by the Legislature of the public use(s) or purpose(s) for which the government is acquiring the land parcel(s), as provided in 2 CMC § 4143(e)(1);

 

(b)        Boundary survey(s) and/or legal description(s);

 

(c)        Identification of encumbrances and disputes, if any.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-205   Evidence of Title

 

There shall be a finding of title to the property to be acquired, which shall consist of valid proof of clear title, unless the Governor waives this requirement in writing. The government or the Division may require the owner to furnish a preliminary title report which verifies that he/she has unencumbered title to the property to be exchanged whenever there is insufficient title evidence as to his/her ownership of the property in question.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-210   Issuance of Preliminary Acquisition Notice

 

The Office of the Governor shall issue a preliminary acquisition notice to the owner. The notice shall:

 

(a)        Inform the owner of the government’s interest in acquiring his/her real property and the public purpose for which it is needed.

 

(b)        Inform the owner of Public Law 5-33, as amended, the rules and regulations in this chapter, and the need to appraise the subject property to assess the fair market value.

 

(c)        Request written permission from the owner to survey his/her land if it is unsurveyed and to inspect his/her land for the appraisal evaluation.

 

(d)       If the fair market value of the owner’s property is determined to be $5,000 or more and the area is 700 square meters or more, ask the owner if he/she wants the government to acquire his/her property through a land exchange. The owner shall indicate in an accompanying acknowledgment receipt whether he/she wants to enter into a land exchange or does not want to enter into a land exchange.

 

(e)        The preliminary acquisition notice must be sent via return receipt mail or hand delivered and acknowledged that it was delivered and received.

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The final paragraph was not designated. The Commission designated it subsection (e).

 

In subsection (d), the Commission corrected the spelling of “acknowledgment.”

 

§ 145-50-215   Survey and Appraisal of Real Property to Be Acquired

 

(a)        Upon receipt of the owner’s authorization, the government shall survey the owner’s property, if necessary, and secure an approved plat. Concurrently, the government shall solicit and contract for an independent appraiser to appraise the property to be acquired in accordance with the CNMI Procurement Regulations [NMIAC, title 70, subchapter 30.3] and the basic acquisition policies of the rules and regulations in this chapter.

 

(b)        The government shall give the appraiser reasonable time to complete the appraisal report. The government and the appraiser shall agree on the time for completion and submittal of the appraisal report upon execution of the agreement for appraisal report.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-220   Review of Appraisal Report and Determination of Fair Market Value of Real Property to Be Acquired

 

(a)        Upon completion and submittal of the appraisal report, the government and/or the Division (if the owner has requested a land exchange) shall either accept the report or require a review. If a review is required, the government’s or the Division’s staff review appraiser or an independent review appraiser retained for such purpose shall have thirty working days to review the appraisal report for any deficiencies. The review appraiser shall be given additional time to review the report if such is warranted by its complexity.

 

(b)        If the review appraiser finds any deficiencies in the appraisal report, the government or the Division (if the owner has requested a land exchange) shall notify the appraiser of such deficiencies, and give the appraiser reasonable time to make corrections. If the appraiser refuses to make corrections or if the review appraiser finds any deficiencies after re-submittal, the review appraiser shall submit his own recommendation as to the fair market value of the property.

 

(c)        The Governor shall determine what is, in his/her opinion, the reasonable fair market value of the property, based on the appraiser’s report and the review appraiser’s report, if any.

 

(d)       The Division shall, in the case of a land exchange, be responsible for the custody of the appraisal report and the report, if any, of the review appraiser.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-225   Written Proposal to Owner

 

(a)(1)   Within thirty days after the determination of fair market value, the government shall send or deliver a written proposal to the owner. The written proposal shall include the following:

(i)         A recital of the fair market value of the property.

(ii)        A copy of the approved appraisal report, if any, or copies of the appraiser’s and review appraiser’s reports.

(2)        The written proposal shall be sent by return receipt mail or delivered in person and acknowledged that it was delivered and received.

 

(b)        Within sixty days, the owner must either reject or accept the written proposal. After the expiration of sixty days, the government shall deem that the owner has rejected the written proposal and shall initiate other means of acquisition.

 

(c)        The owner shall be given a reasonable opportunity to present material which he/she believes is relevant to determining the value of his/her property. If the government or the Division determines that the evidence presented by the owner warrants a revision of the fair market value, the government or the Division may modify the determination of fair market value, in consultation with the review appraiser, if any, or with the appraiser.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The original paragraphs of subsection (a) were not designated. The Commission designated subsections (a)(1) and (a)(2).

 

§ 145-50-230   Owner Does Not Want Land Exchange

 

If the owner indicates in his/her acknowledgment receipt that he/she does not want a land exchange, the government shall negotiate for monetary compensation, subject to the Governor’s approval, or recommend condemnation proceedings if needed.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The Commission corrected the spelling of “acknowledgment.”

 

§ 145-50-235   Owner Wants Land Exchange

 

(a)        The Division must explain its Land Exchange Rules and Regulations, codified in this chapter, and the basis for establishing the fair market value of the owner’s property.

 

(b)        The Division must explain to the owner that certain public land parcels have been designated and reserved for land exchange purposes and inform him/her of the established fair market value of these land parcels based on the latest approved appraisal reports.

 

(c)        The owner shall be given, if requested, copies of the latest approved appraisal reports of the public land parcels and may have them reviewed by an independent review appraiser retained by the owner at the owner’s expense.

 

(d)       The Division shall create a file, if it has not already done so, which must contain the following documents:

(1)        The Governor’s certification or the Legislature’s declaration or determination;

(2)        Valid proof of clear title, or the Governor’s written waiver of that requirement;

(3)        Preliminary acquisition notice and receipt;

(4)        Owner’s response to acquisition notice;

(5)        Appraisal solicitation;

(6)        Appraisal selection;

(7)        Approved basic and severance maps;

(8)        Approved appraisal report, if any; or the appraiser’s report and the review appraiser’s report, if any;

(9)        Written notice to owner;

(10)      Owner’s acceptance of written proposal.

 

(e)        If the owner agrees to the written proposal or the final proposal made in the course of the negotiations, the Division, through the Governor, and the owner shall enter into a land exchange agreement, which shall be subject to the Governor’s approval, and include at least the following:

(1)        The value of the owner’s property and the value of the public land that has been agreed upon.

(2)        The legal description of the owner’s land to be acquired, and an adequate description of the parcel(s) of public land the owner agrees to accept in exchange for his/her private land.

(3)        An agreement by the owner that he/she will warrant title to the property he/she will convey to the government.

(4)        The signatures of the owner and the Governor.

 

(f)        If the government or Division and an owner who has selected a land exchange do not reach an agreement as provided in subsection (e) of this section, and do not otherwise reach an agreement for monetary compensation for the land to be acquired by the government, the government may proceed to acquire the land by other legal means.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-240   Publication of Proposed Exchange

 

Upon the signing of the land exchange agreement, the Division shall, within thirty days, publish the proposed exchange pursuant to § 145-50-150.

 

Modified, 1 CMC § 3806(c), (e), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: The Commission created the section title.

 

§ 145-50-245   Processing and Execution of Land Exchange

 

(a)        Within seven days of the successful conclusion of the negotiation, subject to the availability of funds, the Division shall:

(1)        Solicit and select a surveyor in accordance with the CNMI Procurement Regulations [NMIAC, title 70, subchapter 30.3] to survey the public land parcel(s) to be exchanged.

(2)        Prepare a deed of land exchange.

 

(b)        Upon completion of the required surveys and deed of land exchange, the Division shall arrange for the execution of the deed, subject, however, to the final approval of the Governor.

 

(c)        If the owner’s property is occupied or being used by the owner upon the execution of the deed, the government shall notify the owner that he/she must vacate the premises. If the owner needs time to relocate, the government shall grant him/her reasonable time to do so.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

§ 145-50-250   Disposition of Acquisition Records, Documents and Reports

 

All materials which are part of the file for the particular land exchange must be compiled and safeguarded in proper filing containers. This file must at a minimum contain the following:

 

(a)        Governor’s certification, or the declaration or determination by the Legislature of the public uses or purposes for which the land is being acquired;

 

(b)        Preliminary acquisition notice;

 

(c)        Solicitation for appraisal;

 

(d)       Selection and agreement for appraisal services;

 

(e)        Approved appraisal report;

 

(f)        Review appraiser’s recommendation (if any);

 

(g)        Written proposal to owner;

 

(h)        Written proposal return receipt mail/acknowledgment receipt;

 

(i)         Rejection/request for negotiations by the owner (if any);

 

(j)         Final proposal;

 

(k)        Proof of clear title or the Governor’s written waiver of that requirement;

 

(l)         Survey plat(s);

 

(m)       Copies of notices published in the newspaper and broadcast on local radio and/or television, with the dates of publications and broadcast;

 

(n)        Deed of exchange;

 

(o)        Notification to owner to vacate the property (if any);

 

(p)        Any correspondence pertaining to the land exchange.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 18 Com. Reg. 14129 (May 15, 1996) (repealing and replacing the 1988 Marianas Public Land Corporation Land Exchange Rules and Regulations); Proposed 17 Com. Reg. 13308 (May 15, 1995); Proposed 17 Com. Reg. 13023 (Mar. 15, 1995).

 

Commission Comment: In subsection (h), the Commission corrected the spelling of “acknowledgment.”

 


CHAPTER 145-60

SUBMERGED LAND RULES AND REGULATIONS

 


Part 001          General Provisions

§ 145-60-001   Summary

§ 145-60-005   Purpose

§ 145-60-010   Definitions

 

Part 100          Lease, Licenses and Permits of and Constructive Easement; Review of Applications

§ 145-60-101   Application

§ 145-60-105   Uses Requiring a Lease

§ 145-60-110   Uses Not Requiring a Conveyance

§ 145-60-115   Uses Requiring Commonwealth Regulatory Permits

 

Part 200          General Terms and Conditions; Use Permits Lease, Easement or Constructive Easement Other than Dredging Leases

§ 145-60-201   Constructive Easements

§ 145-60-205   Use Permits

§ 145-60-210   Leases

§ 145-60-215   Terms of Conveyance

§ 145-60-220   Applicant Not Owner of Abutting Upland

§ 145-60-225   Change in Use Under Lease, License or Permit

§ 145-60-230   Assignment

§ 145-60-235   Termination

§ 145-60-240   Improvements

§ 145-60-245   Reconsideration

 

Part 300          Dredging and Filing Leases; Fastland Use

§ 145-60-301   Dredging Leases

§ 145-60-305   Filling Leases Applications (See Definition of Filling)

§ 145-60-310   Fastland Use Applications

 

Part 400          Fees

§ 145-60-401   Fee Schedules

§ 145-60-405   Lease Rental Fees

§ 145-60-410   Dredging Fees

§ 145-60-415   Alternate Fee Determination Methods

§ 145-60-420   Government Uses

§ 145-60-425   Rental Adjustments to Existing Leases

§ 145-60-430   Late Fee Payments

 

Part 500          Specific Use Activities

§ 145-60-501   Introduction

§ 145-60-505   Aquaculture

§ 145-60-510   Archeological Areas and Historic Sites

§ 145-60-515   Breakwaters

§ 145-60-520   Bulkheads

§ 145-60-525   Commercial Development

§ 145-60-530   Dredging

§ 145-60-535   Jetties and Groins

§ 145-60-540   Marinas

§ 145-60-545   Mining

§ 145-60-550   Moorage Anchors; Permanent

§ 145-60-555   Outdoor Advertising, Signs and Billboards

§ 145-60-560   Piers

§ 145-60-565   Ports and Water-related Industries

§ 145-60-570   Recreation

§ 145-60-575   Residential Development

§ 145-60-580   Shoreline Protection

§ 145-60-585   Utilities

 

Part 600          Miscellaneous Provisions

§ 145-60-601   Severability Provision

 

Appendix A   List of Government Contacts


 

Chapter Authority: 2 CMC § 1221.

 

Chapter History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: PL 1-8, tit. 1, ch. 13 (effective Aug. 10, 1978), formerly codified at 1 CMC §§ 2651, et seq., originally created a Department of Natural Resources (DNR) within the Commonwealth government.

 

PL 1-23 (effective Feb. 20, 1979), the Submerged Lands Act, codified as amended at 2 CMC §§ 1201-1231, was first enacted in 1979. In 1988, PL 6-13 (effective Nov. 3, 1988) extensively amended the codified sections of PL 1-23 in order to extend the authority of the Department of Natural Resources over all submerged lands. See 2 CMC § 1201 and the commission comment thereto. Pursuant to the Submerged Lands Act, DNR is responsible for the management use and disposition of submerged lands in the Commonwealth and has the power to adopt rules and regulations consistent with the act. See 2 CMC § 1221.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 § 104:

 

Section 104. Department of Lands and Natural Resources.

 

The Department of Natural Resources is re-designated the Department of Lands and Natural Resources.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

In 1997, the Legislature passed the “Public Lands and Natural Resources Administration Act of 1997,” PL 10-57 (effective Apr. 18, 1997), codified as amended at 1 CMC §§ 2651, et seq. PL 10-57 repealed and reenacted chapter 13, division 2 of title 1 of the Commonwealth Code, 1 CMC §§ 2651, et seq., and statutorily established the Department of Lands and Natural Resources (DLNR) with the structure, duties and responsibilities set forth in the act. See 1 CMC § 2651 and the commission comment thereto.

 

Pursuant to 1 CMC § 2653(k), DLNR is responsible for the management, use, and disposition of submerged lands pursuant to the Submerged Lands Act, 2 CMC §§ 1201, et seq. Former 1 CMC § 2672(a)(1) further specified that the Division of Public Lands within DLNR is responsible for the management, use, and disposition of submerged lands pursuant to the Submerged Lands Act.

 

PL 12-33 (effective Dec. 5, 2000), the “Board of Public Lands Act of 2000,” and PL 12-71 (effective Nov. 13, 2001) transferred the authority to manage, use, and dispose of surface and submerged public land to the Marianas Public Lands Authority, under the direction of a Board of Public Lands Management. PL 12-33 repealed PL 10-57 § 3 as codified in title 3, div. 2, art. 3 of the Commonwealth Code, 1 CMC §§ 2671-2678. PL 12-33 § 3 (§ 102(a)(2)) granted the Board of Public Lands Management the power and duty to mange, use and dispose of submerged lands off the coast of the Commonwealth pursuant to the Submerged Lands Act.

 

Public Laws 12-33 and 12-71 did not repeal 1 CMC § 2653(k), which grants DLNR the power and duty to manage, use and dispose of submerged lands of the Commonwealth pursuant to the Submerged Lands Act. This provision was in apparent conflict with the authority provided to the Marianas Public Lands Authority and the Board of Public Lands Management set forth in PL 12-33 and PL 12-71.

 

Public Law 15-2 (effective February 22, 2006), codified at 1 CMC §§ 2801-2809, replaced the Marianas Public Lands Authority with the Department of Public Lands within the executive branch. PL 15-2 repealed all provisions of Public Laws 10-57, 12-33, and 12-71 applicable to public lands, but did not specifically address submerged lands. Presumably, the absence of submerged lands in PL 15-2 resolves the apparent conflict of authority between two government agencies over submerged lands.

 

For a complete history of the authority over public lands in the Commonwealth see the general comment to chapter 10 of this title.

 

In addition, the CNMI Attorney General’s Office issued an opinion in May 2007 to a division of DLNR regarding the CNMI’s rights over its submerged lands. 29 Com. Reg. 26517 (May 16, 2007). Attorney General Opinion 07-01 was issued in response to an inquiry from the Division of Fish and Wildlife of the DLNR regarding its authority “to enforce CNMI laws regulating fishing practices and equipment within the Commonwealth’s near shore waters.” 29 Com. Reg. 26517 (May 16, 2007). For the full text of Attorney General Opinion 07-01, see 29 Com. Reg. 26517 (May 16, 2007).

 

PL 18-42 (Mar. 27, 2014) amended 1 CMC § 2653 to specify that the Department of Lands and Natural Resources has the authority to promulgate regulations concerning submerged lands within three miles of the shore. To the extent these regulations conflict with 1 CMC § 2653, they are superseded.

 

The Department of Natural Resources first promulgated Submerged Lands Regulations in 1981 pursuant to PL 1-23 and PL 1-8. The history of the 1981 regulations is as follows: Adopted 3 Com. Reg. 1043 (Feb. 23, 1981); Proposed 2 Com. Reg. 903 (Nov. 17, 1980). The text of the proposed regulations was not published with the 1980 notice of proposed regulations.

 

Part 001 -       General Provisions

 

§ 145-60-001   Summary

 

This chapter sets forth the Department’s regulations and policies relating to the use and lease of submerged lands within the Commonwealth. In particular, the rules in this chapter provide the definitions of key terms, explain the Department’s policy on uses requiring Department approval, lease and easement application terms and conditions, fee determination, types of use and penalty determination.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-005   Purpose

 

(a)        The purpose of the rules in this chapter is to establish procedures and guidelines for leasing, licensing or permitting use of the Commonwealth of the Northern Marianas Islands submerged lands. Since these are Commonwealth resources, the Director of the Department of Natural Resources reserves the right in his discretion, to deny any request for a lease, license or permit though all approved leases must be ratified by the CNMI Legislature as provided by the Submerged Lands Act. The criteria set forth below with respect to whether a lease, license, or permit may be issued are to be considered guidelines for but are not binding upon the Director.

 

(b)        In 1979, the Submerged Lands Act was promulgated to provide for the exploration, development, and extraction of petroleum or mineral deposits (2 CMC §§ 1201-1231). In 1988, Public Law 6-13 gave the Department broader authority to lease, license, and permit for the use of submerged lands. (2 CMC §§ 1211-1204). As a result of this legislation, the Department is authorized to grant leases or licenses for dredging, filling, erection of permanent structures and installation of fixtures such as cables and pipelines on submerged lands of the Commonwealth. The Commonwealth holds in trust these resources for the benefit of the public, and the public uses thereof generally include recreation, fishing, shoreline access and navigation.

 

(c)        The purpose of the rules in this chapter is to provide a guide for federal, Commonwealth, and private uses of Commonwealth submerged lands. Coordinated management is necessary to resolve the increasing number of conflicts that may arise between development and preservation of environmental quality, resource conservation, and public rights to use these resources.

 

(d)       The management of these resources is affected by the public trust doctrine and the public rights thereunder as well as the public’s customs, uses, and traditions. In addition, management of the submerged lands by the Department is subject to other Commonwealth and federal laws.

 

(e)        Activities on submerged lands must conform to various resource planning and protection laws administered by other Commonwealth agencies such as the Coastal Resources Management Office, the Division of Environmental Quality, Historical Preservation Office and the Division of Fish and Wildlife. The Commonwealth Port Authority is charged with developing port terminal facilities.

 

(f)        The Department’s management decisions will not be more restrictive than any actions imposed by other government agencies.

 

(g)        The overall goal of the Department in meeting its responsibilities is to help provide the greatest long-term benefits for all of the people in the Commonwealth. To this end, leases, licenses, and permits are prioritized in terms of their impact on public rights, customs, and uses. Leases, licenses, and permits deemed to be most desirable are those issued for uses which depend on the water and/or submerged lands for their existence and which make wise use of the natural renewable resources therein. Leases, licenses, and permits deemed to be least desirable are those issued for uses which are not dependent on the water and/or submerged lands and which cause irreversible changes therein. Since private use of submerged land unavoidably restricts general public use of this resource, fees shall be imposed on those private users.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (g).

 

With respect to the references to the Department of Natural Resources, see Executive Order 94-3 (effective August 23, 1994) reorganizing the Commonwealth government executive branch, changing agency names and official titles, and effecting numerous other revisions.

 

The Commission inserted a comma after the word “licenses” in subsection (g) pursuant to 1 CMC § 3806(g).

 

§ 145-60-010   Definitions

 

(a)        An “aggrieved party” is a person who has a property interest in the land or who is an adjacent submerged lands tenant.

 

(b)        A “buffer zone” is an area separating two different types of zones or classes of areas to make each blend more easily with each other.

 

(c)        The “Department” means Department of Natural Resources.

 

(d)       The “Director” shall mean the Director of the Department of Natural Resources.

 

(e)        “Filling” is addition of fill material into waters of the United States. The term generally includes the following activities:

(1)        Placement of fill that is necessary for the construction of any structure;

(2)        The building of any structure or impoundment requiring rock, sand, dirt, or other materials for its construction;

(3)        Residential, and other uses;

(4)        Causeways or road fills;

(5)        Dams and dikes;

(6)        Artificial islands;

(7)        Property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments;

(8)        Beach nourishment;

(9)        Levees;

(10)      Fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines; and

(11)      Artificial reefs.

 

(f)        “Ordinary high water mark” means the mark on tidal waters, which will be found by examining the beds and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation, as that condition exists on (the effective date of submerged lands act amendment) as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department: Provided, that in any area where the ordinary high-water mark cannot be found, the ordinary high-water adjoining saltwater shall be the line of mean higher high tide and the ordinary high-water mark adjoining freshwater shall be the line of mean high water.

 

(g)        “Specific use activities” are defined in part 500 herein.

 

Modified, 1 CMC § 3806(c), (f), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (a), the Commission corrected the spelling of “aggrieved.” In subsection (f), the Commission deleted the repeated word “mark.”

 

With respect to the references to the Department of Natural Resources, see Executive Order 94-3 (effective August 23, 1994) reorganizing the Commonwealth government executive branch, changing agency names and official titles, and effecting numerous other revisions.

 

Part 100 -       Lease, Licenses and Permits of and Constructive Easement; Review of Applications

 

§ 145-60-101   Application

 

(a)(1)   Application to the Department will be deemed to have been made when the Department receives a complete appropriate permit application for a specific use activity as defined in part 200 herein.

(2)        Note: Almost all activities involving or proximate to the waters of the Commonwealth require a permit, license and/or conveyance of property interest from the Commonwealth. The Department makes conveyances of Commonwealth property interests only. The appropriate Commonwealth agencies to contact for more information about permits and licenses are noted in appendix A.

 

(b)        Actions Taken by the Department and Notification.

(1)        The Department shall review all applications within 45 working days of their receipt and shall request additional information from the applicant and/or the permitting agency when necessary.

(2)        If the proposed project is not on Commonwealth-owned submerged land, the Department will notify the applicant.

(3)        Note: If the proposed project is not within Commonwealth-submerged land, the Department will notify the applicant of the action to be taken. In addition to notifying the applicant, the Department shall give notification of pending action to the Department of Environmental Quality, Coastal Resources Management Office, and Historic Preservation Office for applications to CRMO for coastal wetland alteration applications and the CPA for projects in harbor areas as applicable.

(4)        When the proposed project has potentially significant impact on public uses. The Directors will schedule a public meeting. The Department will notify the general public by publishing notice of the application in a newspaper of local circulation at least two weeks prior to the public informational meeting. Written comments addressing public use issues will be accepted for a fourteen day period following publication in the newspaper. The time period for a Department decision will be extended until 30 days following the meeting.

 

(c)        All applications will be reviewed to assess the potential beneficial impact on fisheries development and adverse impact on marine resources within submerged lands. Applications may be denied where, in the opinion of the Director, there is an undue adverse impact on such use or ability to mitigate any impacts.

 

Modified, 1 CMC § 3806(c), (e), (f), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The original paragraphs of subsections (a) and (b) were not designated. The Commission designated subsections (a)(1) and (a)(2) and (b)(1) through (b)(4).

 

In subsection (b)(4), the Commission corrected the spelling of “public” and changed “of public meeting” to “a public meeting” to correct manifest errors.

 

§ 145-60-105   Uses Requiring a Lease

 

Leases or easements are required in order to dredge, fill or erect permanent causeways, bridges, marinas, wharves, docks, pilings, moorings, aquaculture, or other permanent structures on submerged land in the Commonwealth.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission corrected the spelling of “permanent.” The Commission inserted a comma after the word “aquaculture” pursuant to 1 CMC § 3806(g).

 

§ 145-60-110   Uses Not Requiring a Conveyance

 

All uses of submerged lands require leases, easements, or constructive easements except as otherwise provided herein. Conveyances are not required for transitory public uses, such as recreation, fishing, and navigation.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission corrected the spelling of “constructive.”

 

§ 145-60-115   Uses Requiring Commonwealth Regulatory Permits

 

A conveyance from the Department for a use other than an easement or lease requiring permits from Commonwealth and/or federal agencies shall be conditioned upon issuance of and adherence to all applicable permits.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission changed “require” to “requiring” to correct a manifest error.

 

Part 200 -       General Terms and Conditions; Use Permits Lease, Easement or Constructive Easement Other than Dredging Leases

 

§ 145-60-201   Constructive Easements

 

(a)        Owners of all structures located upon submerged lands on November 3, 1988, shall be deemed to have been granted a constructive easement therefor and are permitted continual use. The term will have begun on that date and shall end on November 3, 2013.

 

(b)        Any significant change in use, either in nature or intensity, of an existing constructive easement shall require a lease or easement. Grantees of constructive easements must request a determination from the Department prior to any change of use. Note: Any proposed project, which will occupy a new area, in addition to the area conveyed by constructive easement, shall require a lease or easement.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-205   Use Permits

 

Use permits may be granted for specific uses requiring a conveyance, provided that the use either:

 

(a)        Is for the exclusive benefit of the abutting upland owner including the Marianas Public Land Corporation for charitable purposes, as defined in the U.S. Internal Revenue Code, section 501(c)(3);

 

(b)        Occupies a total of not more than 500 square feet of Commonwealth submerged land for any lawful purpose;

 

(c)        Occupies a total of not more than 2,000 square feet of Commonwealth submerged land for the commercial landing or processing of natural products, including aquaculture, in the marine waters or directly related purposes, including fueling, loading or selling of these products and those uses included in § 145-60-210(a); or

 

(d)       Is for harbor improvement by the CNMI or federal governments.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission created the section title.

 

§ 145-60-210   Leases

 

Leases may be granted, upon approval of the Legislature, for the following uses:

 

(a)        Commercial landing, processing of natural products of the ocean, and exploration or exploitation of petroleum or mineral deposits using more than 2,000 square feet of Commonwealth submerged land; or

 

(b)        All other uses occupying more than 500 square feet.

 

(c)        If the Director requires a buffer zone around a leased area, a buffer zone shall be not more than 30 feet in width around a permanent structure or area and may also be leased for a period of not more than 25 years except as extended by statute. The buffer zone shall be permitted for the same fees and rents as the fair market value of the leased area it is protecting.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission created the section title.

 

§ 145-60-215   Terms of Conveyance

 

Including use permits, leases, easements or constructive easements.

 

(a)        Initial Term

Unless otherwise specified, the initial conveyance term may be granted for a period of time not to exceed 25 years.

 

(b)        Extension of Term

Conveyance term extension may be requested only during the last five years of the principle conveyance document. If granted, the conveyance term will be extended by not more than fifteen years and shall be updated to conform with current policies and fees.

 

(c)        Renewal

(1)        Lease and easement renewal may be granted at the end of the conveyance term upon approval of three-quarters of the CNMI Legislature considering, among other reasons, the public interest, policy conflicts and any history of noncompliance with conveyance terms by applicant.

(2)        A constructive easement may be renewed in the form of a lease or license.

 

(d)       Option

An option to obtain a lease from the Department for a specific area of submerged lands for a period of time not to exceed one year may be negotiated. The option fee may be less than the anticipated annual lease rental fee. The option may only be executed for the sole purpose originally given by the Department.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-220   Applicant Not Owner of Abutting Upland

 

When an applicant is made for the use of submerged land which extends in front of adjacent upland owners, the Director shall require the applicant to receive the adjacent owner’s written permission before a conveyance will be considered.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-225   Change in Use Under Lease, License or Permit

 

When holders of leases, licenses or permits wish to change the nature or intensity of the use of the lands beyond the uses specified in the conveyance, they must request prior Department approval. Significant changes will be considered under the same criteria used to review new applications, and if approved will require a new conveyance, and approval of the Legislature. A significant change would be a change in the specific use, but is not limited to this.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-230   Assignment

 

(a)        Leases, licenses, and permits containing assignment clauses are assignable with 30 day advance notice and the Department’s prior, written approval. An administrative processing fee will be charged when conveyances are transferred.

 

(b)        Constructive easements will continue when there is a change in ownership, if there is no change in area occupied or use.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “licenses” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 145-60-235   Termination

 

A lease, license, or permit, constructive easement may terminate where:

 

(a)        The contractual obligations are not being complied with and corrective action, acceptable by the Director, is not taken within 30 days of written notice; or

 

(b)        When an applicant fails to sign and return a lease, license, permit, or instrument within 90 days of issuance, the instrument shall be deemed void on the 90th day.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted commas after the words “license” in the initial paragraph and “permit” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 145-60-240   Improvements

 

Upon the expiration, cancellation, or termination of a conveyance, regardless of the reason therefor, the conveyee shall have 90 days to remove its property, unless otherwise provided in the lease, license, or permit. The Department shall become the owner of all improvements and structures erected upon the leased premises not so removed. The Department may require as a term of the conveyance that the conveyee will remove all such improvements and structures at conveyee’s expense and to restore the premises to the condition in which they existed at the commencement of the conveyance term.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “cancellation” pursuant to 1 CMC § 3806(g).

 

§ 145-60-245   Reconsideration

 

Within thirty days of notification of a decision made pursuant to the regulations in this chapter, the applicant, or any aggrieved party, as defined, may petition the Director to reconsider such decision by submitting a written request therefor.

 

Modified, 1 CMC § 3806(d), (e), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission corrected the spelling of “aggrieved.”

 

Part 300 -       Dredging and Filling Leases; Fastland Use

 

§ 145-60-301   Dredging Leases

 

(a)        The applicant shall submit information as required by the Director. See information on specific uses part 500 dredging.

 

(b)        Dredging leases shall expire when any Commonwealth or federal regulatory permits for the dredging expire, unless an extension is granted under the later.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-305   Filling Leases Applications (See Definition of Filling)

 

(a)        Conditions. A conveyance for the filling of Commonwealth submerged land may be approved if the Director is satisfied that all of the following conditions exist:

(1)        There is neither a practical alternative to filling for use of the proposed site nor a reasonable opportunity for relocation to another suitable site that does not require filling; and

(2)        Public trust rights and purposes and other public rights and customs will not be unreasonably impaired; and

(3)        All appropriate regulatory permits have to be obtained.

 

(b)        Requirements. The Director may require:

(1)        That a signed map prepared by a registered land surveyor showing the location and boundary of the proposed site shall be filed with and accepted by the Department prior to filling;

(2)        Monumentation of the submerged land boundary;

(3)        That the fill materials be removed from the submerged land at the termination of the conveyance;

(4)        Free public access over the premises for water dependent or associated uses be provided including walkways; and/or

(5)        Other mitigating measures.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-310   Fastland Use Applications

 

(a)        Conditions. Applications for the purpose of siting a fastland use on submerged land or request for conversion from water dependent or associated use to upland use on Commonwealth submerged land may be approved if the applicant demonstrates to the satisfaction of the Director that all of the following conditions exist:

(1)        The project is not feasible at any reasonably available alternative site;

(2)        There is no current or reasonably anticipated unmet demand in the area for water dependent or associated uses; and

(3)        Public trust purposes and other public rights and customs will not be unreasonably impaired.

 

(b)        Requirements. The Director may require:

(1)        The lease period to be less than 25 years.

(2)        Free public access for water dependent uses be provided; and/or

(3)        Other mitigating measures.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Part 400 -       Fees

 

§ 145-60-401   Fee Schedules

 

There are two fee schedules.

 

(a)(1)   No fee for government projects.

(2)        $25.00 fee for permits and licenses.

(3)        For all others, the fee shall be as follows:

(Projects costs shall be based upon appraisal of construction plans of structures to be built in the area.)

 

Fee Amount                                        Size of Project

$25.00                                                 Under or equal to $30,000.00

$75.00                                                 Over $30,000, but less than or equal to $50,000.00

$150.00                                               Over $50,000.00 but less than or equal to $250,000.00

$200.00                                               Over $250,000.00, but less than or equal to $500,000.00

$275.00                                               Over $500,000.00, but less than or equal to $1,000,000.00

$350.00                                               Over $1,000,000.00

 

(b)        For each $1 million increment in the cost/size of the project, there shall be assessed an additional fee of $250.00.

 

(c)        In addition to this filing fee, there shall be an annual rental fee for leases.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission created the section title. The last two paragraphs were not designated. The Commission designated subsections (b) and (c).

 

In the opening sentence, the Commission inserted the final period. In subsection (c), the Commission changed “annum” to “annual” to correct a manifest error.

 

§ 145-60-405   Lease Rental Fees

 

Standard Method of Fee Determination.

 

(a)        Except as otherwise provided for in this section, lease rental fees shall be determined by multiplying the area in square feet to be leased by the current square foot rental rate. Square foot rental rates determined by this method shall not exceed fair marked value per square foot increased by 10% cumulatively for each year that has elapsed since 1988 further adjusted by the cumulative increase in the United States Consumer Price Index as it applies to the Commonwealth. The appraisal shall be paid for by the applicant. DNR shall select the appraiser.

 

(b)        The minimum lease rental fee shall be $1,200.00 per year. When the minimum rental fee is used, payment shall be made for 5-year periods payable in advance.

 

(c)        Lease rental fees above the minimum are payable in advance on an annual basis.

 

(d)       For determination of the rental fee for a cable lease, a one-foot right of way for cables shall be used unless otherwise indicated.

 

(e)        For determination of the rental fee for a pipeline lease, a minimum one foot right of way shall be used unless otherwise indicated. For pipelines whose diameter is greater than one foot, the diameter will be used for rental fee determination.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (a), the Commission corrected the spelling of “appraisal” and inserted the word “by” before “the applicant” to correct manifest errors.

 

§ 145-60-410   Dredging Fees

 

There shall be a flat fee of $150.00 for a dredging lease for public navigational purposes and for other purposes where the Director elects not to use the appraisal method described in § 145-60-415 below. The Director shall add additional fees for disturbing the submerged environment including displaced sea grass and corals.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-415   Alternate Fee Determination Methods

 

(a)        For commercial, closed-system pipeline, the Director may determine lease rental fees based upon volume of material transported.

 

(b)        Where dredging materials are removed for profit or where dredging is for non-navigational purposes, the Director may establish the dredging fee based upon the fair market value of materials removed.

 

(c)        For other types of uses, the Director may establish the lease rental fee based on the value determined by appraisal, when any of the following conditions exist:

(1)        The rental value is significantly greater than the current standard square foot value;

(2)        The use is for upland purposes; or

(3)        Area is filled.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-420   Government Uses

 

(a)        Free Public Use. If a government use of Commonwealth-owned submerged lands is to provide general public access to the waters and if there is no fee charged for use of the land or associated facility, then there shall be no lease rental fee charged by the Department. This lease shall not be assignable without the Director’s approval.

 

(b)        Minimal User Fee. No lease fee is charged when:

(1)        Government uses the submerged lands for general public access to the Commonwealth’s waters;

(2)        Use is controlled and operated by the Commonwealth government; and

(3)        Any fees for the use of the area are used exclusively for the operation and maintenance of the same facility. The government shall send the Department an annual financial statement, in full, of the revenues and expenditures of the facility. This lease shall not be assignable without the Director’s approval.

 

(c)        Quasi-government Uses. Commonwealth Utility Corporation in creating sewer and water districts shall obtain non-assignable leases. There shall be no lease rental fee charged by the Department.

 

(d)       Commercial. To the extent that a government use of submerged lands is for generating general revenue is operated by a commercial enterprise or is otherwise an amenity in furtherance of a commercial purpose, then all standard lease fees, terms and conditions will apply.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-425   Rental Adjustments to Existing Leases

 

The Director may revalue lease fees every 5 years to adjust rental rates or to reflect changes in lease policies.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-430   Late Fee Payments

 

(a)        Any lease fee which is more than 30 days past due shall be subject to interest. The rate of interest shall not exceed the highest conventional rate of interest charged for commercial unsecured loans by Commonwealth banking institutions. This rate shall be determined by the Banking Commission of the Commonwealth.

 

(b)        No conveyance application which would legitimize a pre-existing use shall be considered until all uncollected fees for past use are paid in full plus interest at a rate determined by the Banking Commission.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Part 500 -       Specific Use Activities

 

§ 145-60-501   Introduction

 

This section contains guidelines for the regulation of use activities proposed for submerged lands. Each topic, representing a specific use or group of uses, is broadly defined and followed by several guidelines. These guidelines represent the criteria upon which judgments for proposed shoreline developments will be based. These guidelines have been prepared in recognition of the flexibility needed to carry out effective planning. Any departure from these guidelines must, however, be compatible with the intent of the act as enunciated in 2 CMC § 1201. The guidelines are adopted regulations, however, and must be complied with both in permit application and review.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: This section was originally the introductory paragraph to § 1.9, codified at part 500. The Commission created the section title.

 

§ 145-60-505   Aquaculture

 

Aquaculture is the culture or farming of food fish, shellfish, or other aquatic plants and animals. Properly managed, it can result in long term over short term benefit and can protect the resources and ecology of the shoreline. Aquaculture is dependent on the use of the water area and, when consistent with control of pollution and prevention of damage to the environment, is a preferred use of the water area. Potential locations for aquaculture are relatively restricted due to specific requirements for water quality, temperature, flows, oxygen content, adjacent land uses, wind protection, commercial navigation, and, in marine waters, salinity, guidelines.

 

(a)        Aquacultural activities and structures should be located in areas where the navigational access of upland owners, recreational boaters, and commercial traffic is not significantly restricted.

 

(b)        Recognition should be given to the possible detrimental impact aquacultural development might have on the visual access of upland owners and on the general aesthetic quality of the shoreline area.

 

(c)        As aquaculture technology expands with increasing knowledge and experience, emphasis should be placed on structures which do not significantly interfere with navigation or impair the aesthetic quality of Commonwealth shorelines.

 

(d)       Shellfish resources and conditions suitable for aquaculture only occur in limited areas. The utility and productivity of these sites is threatened by activities and developments which reduce water quality such as waste discharges, nonpoint runoff, and disruption of bottom sediments. Proposed developments and activities should be evaluated for impact on productive aquaculture areas. Identified impacts should be mitigated through permit conditions and performance standards.

 

(e)        Aquaculture is a preferred, water-dependent use. Water surface, column, and bedland areas suitable for aquaculture are limited to certain sites. These sites are subject to pressures from competing uses and degradation of water quality. A special effort should be made through the CRM program to identify and resolve resource use conflicts and resource management issues in regard to use of identified sites.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-510   Archeological Areas and Historic Sites

 

Historical and archeological areas are often located on shorelines because water provided an important means of transportation and subsistence. These sites are nonrenewable resources and many are in danger of being lost through present day changes in land use and urbanization. Because of their rarity and the educational link they provide to our past, these locations should be preserved. Guidelines:

 

(a)        The developer must consult with professional archeologists to identify areas containing potentially valuable archeological data, and to establish procedures for recovering the data through the CNMI Historical Preservation Office, (HPO).

 

(b)        Where possible, sites should be permanently preserved for scientific study and public observation. In areas known to contain archeological data, special conditions should be attached to the CRM permit providing for a site inspection and evaluation by an archeologist to ensure that possible archeological data are properly recovered. Such a condition also requires approval by HPO before work can resume on the project following such an examination.

 

Modified, 1 CMC § 3806(f),(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (b), the Commission changed “condition” to “conditions” to correct a manifest error.

 

§ 145-60-515   Breakwaters

 

Breakwaters are another protective structure usually built offshore to protect beaches, bluffs, dunes, harbor areas from wave action. However, because offshore breakwaters are costly to build, they are seldom constructed to protect the natural features alone, but are generally constructed for navigational purposes also. Breakwaters can be either rigid in construction or floating. The rigid breakwaters, which are usually constructed of rip rap or rock, have both beneficial and detrimental effects on the shore. All breakwaters eliminate wave action and thus protect the shore immediately behind them. They also obstruct the free flow of sand along the coast and starve the downstream beaches. Floating breakwaters do not have the negative effect on sand movement, but cannot withstand extensive wave action and thus are impractical with present construction methods in many areas. Guidelines:

 

(a)        Floating breakwaters are preferred to solid landfill types in order to maintain sand movement and fish habitat.

 

(b)        Solid breakwaters should be constructed only where design modifications can eliminate potentially detrimental effects and consideration given for natural current and sediment flow, wave patterns, and over all flushing characteristics.

 

(c)        The restriction of the public use of the water surface as a result of breakwater construction must be recognized and must be considered in granting shoreline permits for their construction.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (b), the Commission deleted the word “in” before “natural” to correct a manifest error.

 

§ 145-60-520   Bulkheads

 

(a)        Bulkheads or seawalls are structures erected parallel to and near the high-water mark for the purpose of protecting adjacent uplands from the action of waves or currents. Bulkheads are constructed of steel, lumber, or concrete piling, and may be either of solid or open piling construction. For ocean exposed locations, bulkheads do not provide a long-lived permanent solution, because eventually a more substantial wall is required as the beach continues to recede and layer waves reach the structure.

 

(b)        While bulkhead sand seawalls may protect the uplands, they do not protect the adjacent beaches by speeding up the erosion of the sand in front of the structures. The following guidelines apply to the construction of bulkheads and seawalls designed to protect the immediate upland area. Proposals for landfill must comply with the guidelines for that specific activity. See shoreline protection. Guidelines:

(1)        Bulkheads and seawalls should be located and constructed in such a manner which will not result in adverse effects on nearby beaches and will minimize alterations of the natural shoreline.

(2)        Where bulkheads are essential, a shallow zone should be maintained against the bulkheads with not more than a 3:1 slope starting at least ten feet from the bulkhead.

(3)        Bulkheads and seawalls should be constructed in such a way as to minimize damage to fish and shellfish habitats. Open-piling construction is preferable in lieu of the solid type.

(4)        Consider the effect of a proposed bulkhead on public access to publicly owned shorelines.

(5)        Bulkheads and seawalls should be designed to blend in with the surroundings and not to detract from the aesthetic qualities of the shoreline.

(6)        The construction of bulkheads should be permitted only where they provide protection to upland areas or facilities, not for the indirect purpose of creating land by filling behind the bulkhead.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b). The Commission inserted a comma after the word “lumber” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 145-60-525   Commercial Development

 

Commercial developments are those uses which are involved in wholesale and retail trade or business activities. Commercial developments range from small businesses within residences to high-rise office buildings. Commercial developments are intensive users of space because of extensive floor areas and because of facilities, such as parking, necessary to service them. Guidelines:

 

(a)        Although many commercial developments benefit by a shoreline location, priority should be given to those commercial developments which are particularly dependent on their location and/or use of the shorelines of the Commonwealth and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines.

 

(b)        New commercial developments on shorelines should be encouraged to locate in those areas where current commercial uses exist.

 

(c)        An assessment should be made of the effect a commercial structure will have on a scenic view significant to a given area or enjoyed by a significant number of people.

 

(d)       Parking facilities should be placed inland away from the immediate water’s edge and recreational beaches.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-530   Dredging

 

Dredging is the removal of earth from the bottom of a stream, river, lake, bay, or other water body for the purposes of deepening a navigational channel or to obtain use of the bottom materials for landfill. A significant portion of all dredged materials are deposited either in the water or immediately adjacent to it, often resulting in problems of water quality. Guidelines:

 

(a)        Dredging should be controlled to minimize damage to existing ecological values and natural resources of both the area to be dredged and the area for deposit of dredged materials, which should be non-wetland areas.

 

(b)        Programs must include long-range plans for the deposit and use of spoils on land. Spoil deposit sites in water areas should also be identified by government in cooperation with the Division of Fish & Wildlife. Depositing of dredge material in water areas should be allowed only for habitat improvement, to correct problems of material distribution affecting adversely fish and shellfish resources, or where the alternatives of depositing material on land is more detrimental to shoreline resources than depositing it in water areas.

 

(c)        Dredging of bottom materials for the single purpose of obtaining fill material should be discouraged.

 

(d)       The dredged site should be designed to contain the material to prevent dispersal into adjacent wetland areas and prevent adverse impacts.

 

(e)        The environmental protection plan should include a temporal analysis of the biological activities with which dredging might conflict. For example, the dredging may have a severe impact on the submerged grass community wherein a commercially important species must use for some portion of their life cycle in the same grass flats.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “bay” in the initial paragraph pursuant to 1 CMC § 3806(g).

 

§ 145-60-535   Jetties and Groins

 

Jetties and groins are structures designed to modify or control sand movement. A jetty is generally employed at inlets for the purpose of navigation improvements. When sand being transported along the coast by waves and currents arrives at an inlet, it flows inward on the flood tide to form an inner bar, and outward on ebb tide to form an outer bar. Both formations are harmful to navigation through the inlet. A jetty is usually constructed of steel, concrete or rock. The type depends on foundation conditions and wave, climate and economic considerations. To be of maximum aid in maintaining the navigation channel, the jetty must be high enough to completely obstruct the sand stream. The adverse effect of a jetty is that sand is impounded at the updrift jetty and the supply of sand to the shore downdrift from the inlet is reduced, thus causing erosion. Groins are barrier-type structures extending from the backshore seaward across the beach. The basic purpose of a groin is to interrupt the sand movement along a shore. Groins can be constructed in many ways using timber, steel, concrete, or rock, but can be classified into basic physical categories as high or low, long or short, and permeable or impermeable. Trapping of sand by a groin is done at the expense of the adjacent downdrift shore, unless the groin system is filled with sand to its entrapment capacity. Guidelines:

 

(a)        Applicant must consider sand movement and the effect of proposed jetties or groins on that sand movement. Provisions can be made to compensate for the adverse effects of the structures either by artificially transporting sand to the downdrift side of an inlet with jetties, or by artificially feeding the beaches in case of groins.

 

(b)        Special attention should be given to the effect these structures will have on wildlife propagation and movement, and to the design of these structures which will not detract from the aesthetic quality of the shoreline.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “concrete” in the initial paragraph pursuant to 1 CMC § 3806(g).

 

§ 145-60-540   Marinas

 

Marinas are facilities which provide boat launching, storage, supplies, and services for small pleasure and fishing craft. There are two basic types of marinas. The open-type construction (floating breakwater and/or open-pile work) and solid-type construction (bulkhead and/or landfill). Depending upon the type of construction, marinas affect fish and shellfish habitats. Guidelines:

 

(a)        In locating marinas, special plans should be made to protect the marine resources that may be harmed by construction and operation of the facility.

 

(b)        Marinas should be designed in a manner that will reduce damage to marine resources and be aesthetically compatible with adjacent areas.

 

(c)        Special attention should be given to the design and development of operational procedures for fuel handling and storage in order to minimize accidental spillage and provide satisfactory means for handling those spills that do occur and for typhoon winds and waves.

 

(d)       Shallow-water embayments with poor flushing action should not be considered for overnight and long-term moorage facilities.

 

(e)        All water areas in the marina should be well flushed to allow proper circulation. The follow serves as guides.

(1)        The depth of the boat basins and access channels should not exceed that of the receiving body of water;

(2)        Basins and channels should not be located in areas of poor water circulation;

(3)        Channels should have gentle grades, with no sills or bottom holes;

(4)        Canals should be tapered toward the headwater both in vertical and horizontal planes;

(5)        Floating docks should be used if possible, and if not possible, docks should be built on pilings rather than on a solid base.

 

(f)        The depth of the water basin should not exceed the depth of light penetration.

 

(g)        The impacts of storm water runoff should be mitigated to ensure that the rate, volume, and quality are approximately the same as runoff naturally flowing into the basin.

 

(h)        The boat channel entrance should be well marked, and boaters required to stay in the designated channel.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (e)(4), the Commission corrected the spelling of “tapered.” The Commission inserted a comma after the word “supplies” in the initial paragraph pursuant to 1 CMC § 3806(g).

 

§ 145-60-545   Mining

 

Mining is the removal of naturally occurring materials from the earth for economic use. The removal of sand and gravel from shoreline areas of the Commonwealth usually results in erosion of land and silting of water. These operations can create silt and kill bottom-living animals. The removal of sand from marine beaches can deplete a limited resource which may not be restored through natural processes. Guidelines:

 

(a)        When rock, sand, gravel, and minerals are removed from shoreline areas, adequate protection against sediment and silt production should be provided.

 

(b)        When removal of sand and gravel from marine beaches is permitted by existing legislation, it should be taken from the least sensitive biophysical areas of the beach.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “gravel” in subsection (a) pursuant to 1 CMC § 3806(g).

 

§ 145-60-550   Moorage Anchors; Permanent

 

Permanent anchors are fixed to submerged lands to provide for ongoing and intermittent anchorage of marine vessels and serve to eliminate the need for and the damages caused by a vessel’s working anchor(s). Requiring small areas of submerged land to accommodate the anchor bulk, moorings also include sections of chain attached to a floating buoy. Moored vessels swing in an arc around the center point of the anchor. Guidelines:

 

(a)        Permanent moorage anchors are preferred to use of working anchors in areas where important benthic organisms (e.g. corms, seagrasses, shellfishes) are subject to destruction from dropping, removing, dragging of a vessel’s anchor, or sedimentation.

 

(b)        Permanent moorage anchors should be designed and installed with due regard for typhoon, wind, and wave conditions.

 

(c)        Any area designated for permanent moorage anchors should be well removed from fairways and located general navigation will not endanger or be endangered by unlighted vessels.*

 

*So in original.

 

(d)       Special attention should be given to ensure that sanitation facilities of moored vessels meet applicable standards and are adequately serviced.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “wind” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 145-60-555   Outdoor Advertising, Signs and Billboards

 

These are publicly displayed boards whose purpose is to provide information, direction, or advertising. Signs may be pleasing or distracting, depending upon their design and location. A sign, in order to be effective, must attract attention; however, a message can be clear and distinct without being offensive. There are areas where signs are not desirable, but generally it is the design that is undesirable, not the sign itself.

 

(a)        Off-premise outdoor advertising signs should be limited to areas of high-intensity land use, such as commercial and industrial areas.

 

(b)        Size, height, density, and lighting limitations for signs within submerged lands shall be as follows:

(1)        All signs within the submerged lands shall be colored white with the international orange geometric shapes.

(2)        When a buoy is used within the submerged lands as a regulatory marker for sign, it shall be white with horizontal bands of international orange placed completely around the buoy circumference. One band shall be at top of the buoy body with second band placed just above the waterline of the buoy. The area of the buoy body visible between the two bands shall be white. Geometric shapes shall be placed on the white portion of the buoy body, and shall be colored international orange. A square or rectangular shape is the authorized geometric shapes for instructions, directions, or informational letters. The sign shall be white with an international orange border.

(3)        When a diamond or circular geometric shape associated with meaning of the marker is included, it shall be centered on the sign-board.

(4)        The size, shape, material, and construction of all markers shall be fixed and floating or feet above the water level on high tide condition. They shall be observable under normal conditions of visibility at a distance such that the significance of the marker or aid will be recognizable before the observer stands into danger.

(5)        Numbers, letters, or words on a regulatory marker shall be placed in a manner to enable them to be clearly visible to an approaching boat within the submerged land’s water ways. They shall be block style, well proportioned, and as large as the available space permits. Numbers and letters on red or black backgrounds shall be white numbers, and letters on white backgrounds shall be black.

(6)        The use of reflectors or retroreflective materials shall be discretionary when used on buoys having general significance, red reflectors or retroreflective materials shall be used on solid colored red buoys; green reflectors or retroreflective materials shall be used on solid colored black buoys; white reflectors or retroreflective materials shall only be used for all other buoys including regulatory markers, except that orange reflectors, or retroreflective materials maybe used on orange portion of regulatory markers.

(7)        The use of navigational lights on aids to navigation is discretionary. When used, lights on solid colored buoys shall be regularly flashing, regularly occulting,* or equal internal lights. For ordinary purposes, the frequency of flashes may not be more than 30 flashes per minute. For sharp turns or to mark wrecks on water way, the frequency of flashes may not be less than 60 flashes per minute.

 

*So in original.

 

(c)        Vistas and viewpoints should not be degraded and visual access to the water from such vistas should not be impaired by the placement of signs within submerged lands.

 

(d)       When feasible, signs should be constructed against existing buildings to minimize visual obstructions of the shoreline and water bodies.

 

Modified, 1 CMC § 3806(e), (f), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In the opening paragraph, the Commission corrected the spelling of “undesirable.” In subsection (b)(2), the Commission corrected the spelling of “circumference.” In subsection (b)(6), the Commission deleted the repeated word “materials.” In subsection (b)(7), the Commission inserted the word “to” before “mark wrecks.” Finally, in subsection (d), the Commission changed “minimum” to “minimize” to correct a manifest error.

 

§ 145-60-560   Piers

 

A pier or dock is a structure built over or floating upon the water, used as a landing place for marine transport, fisheries or recreational purposes. While floating docks generally create less of a visual impact than those on piling, they constitute an impediment to boat traffic and shoreline trolling. Floating docks can also alter beach sand patterns in areas where tides and littoral drift are significant. Guidelines:

 

(a)        The use of floating docks should be encouraged in those areas where scenic values are high and where conflicts with recreational boaters and fishermen will not be created.

 

(b)        Open-pile piers should be encouraged where water circulation is needed to support marine resources, where there is significant littoral drift, and where scenic values will not be impaired.

 

(c)        Priority should be given to the use of community piers and docks in major waterfront subdivisions. In general, encouragement should be given to the cooperative use of piers and docks.

 

(d)       The Commonwealth should consider the capacity of the shoreline sites to absorb the impact of waste discharges from boats including gas and oil spillage.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

§ 145-60-565   Ports and Water-related Industries

 

Ports are centers for water-borne traffic and as such have become gravitational points for industrial/manufacturing firms. Heavy industry may not specifically require a waterfront location, but is attracted to port areas because of the variety of transportation available. Guidelines:

 

(a)        Water-dependent industries which require frontage on navigable water should be given priority over other industrial uses.

 

(b)        Port facilities should be designed to permit viewing of harbor areas from view points, waterfront restaurants, and similar public facilities which would not interfere with port operations or endanger public health and safety.

 

(c)        Sewage treatment, water reclamation, desalinization, and power plants should be located where they do not interfere with and are compatible with recreational, residential, or other public uses of the water and shorelands.

 

(d)       The cooperative use of docking, parking, cargo handling and storage facilities should be strongly encouraged in waterfront industrial areas. Where feasible, transportation and utility corridors should be located upland to reduce pressures for the use of waterfront sites.

 

(e)        Since industrial docks and piers are often longer and greater in bulk than recreational or residential piers, careful planning must be undertaken to reduce the adverse impact of such facilities on other water-dependent uses and shoreline resources. Because heavy industrial activities are associated with industrial piers and docks, the location of these facilities must be considered a major factor determining the environmental compatibility of such facilities.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted commas after the words “restaurants” in subsection (b) and “desalinization” in subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 145-60-570   Recreation

 

Recreation is the refreshment of body and mind through forms of play, amusement, or relaxation. Water-related recreation accounts for a very high proportion of all recreational activity in the Commonwealth. The recreational experience may be either an active one involving boating, swimming, fishing, or hunting or the experience may be passive such as enjoying the natural beauty of a vista of a saltwater area. Guidelines:

 

(a)        Priority will be given to development, other than single-family residences which are exempt from the permit requirements of the act, which provide recreational uses and other improvements facilitating public access to shoreline.

 

(b)        Access to recreational locations such as fishing and shelling areas should be a combination of areas and linear access (parking areas and easements, for example) to prevent concentrations of use pressure at a few points.

 

(c)        The development should encourage the linkage of shoreline parks and public access points through the use of linear access. Many types of connections can be used such as hiking paths, bicycle trails, and/or scenic drives.

 

(d)       Attention should be directed toward the effect the development of a recreational site will have on the environmental quality and natural resources of an area.

 

(e)        The permit preserve and enhance scenic views and vistas.*

 

*So in original.

 

(f)        To avoid wasteful use of the limited supply of recreational shoreland, parking areas should be located inland away from the immediate edge of the water and recreational beaches. Access should be provided by walkways or other methods.

 

(g)        Recreational developments should be of such variety as to satisfy the diversity of demands from groups in nearby population centers.

 

(h)        The supply of recreation facilities should be directly proportional to the proximity of population and compatible with the environment designations.

 

(i)         Facilities for intensive recreational activities should be provided where sewage disposal and vector control can be accomplished to meet public health standards without adversely altering the natural features attractive for recreational uses.

 

(j)         In locating proposed recreational facilities such as playing fields and golf courses and other open areas which use large quantities of fertilizers and pesticides in their turf maintenance programs, provisions must be made to prevent these chemicals from entering water. If this type of facility is approved on a shoreline location, provision should be made for protection of water areas from drainage and surface runoff.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In subsection (g), the Commission corrected the spelling of “population.” In subsection (j), the Commission changed “location” to “locating” to correct a manifest error. The Commission inserted a comma after the word “fishing” in the initial paragraph pursuant to 1 CMC § 3806(g).

 

§ 145-60-575   Residential Development

 

The following guidelines should be recognized in the development of any subdivision on the shorelines of the Commonwealth. Guidelines:

 

(a)        Residential development over water should not be permitted.

 

(b)        Floating homes are to be located at moorage slips approved in accordance with the guidelines dealing with marinas, piers, and docks. In planning for floating homes, the government should ensure that waste disposal practices meet health regulations, homes are not located over highly productive fish food areas, and homes are located to be compatible with the intent of the designated environments.

 

(c)        Residential developers should be required to indicate how they plan to preserve shore vegetation and control erosion during construction.

 

(d)       Sewage disposal facilities, as well as water supply facilities, must be provided in accordance with appropriate health regulations. Store drainage facilities should be separate, not combined with sewage disposal systems.

 

(e)        Adequate water supplies should be available so that the ground water quality will not be endangered by overpumping.

 

(f)        Residential developments should utilize centrally located marina facility rather than providing navigation access to individual lots.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: In the opening paragraph, the Commission corrected the spelling of “subdivision.”

 

§ 145-60-580   Shoreline Protection

 

Flood protection and shoreline modifications are those activities occurring within the shoreline and wetland areas which are designed to reduce overbank flow of high waters and stabilize eroding streambanks. Reduction of flood damage bank stabilization to reduce sedimentation, and protection of property from erosion are normally achieved through watershed and flood plain management and by structural works. Such measures are often complementary to one another and several measures together may be necessary to achieve the desired end. Guidelines:

 

(a)        Use sloping riprap walls for erosion control rather than bulkheads whenever possible.

 

(b)        Riprapping and other bank stabilization measures should be located, designed, and constructed so as to avoid the need for channelization and to protect the natural character of the streamway.

 

(c)        Where flood protection measures such as dikes are planned, they should be placed landward of the streamway, including associated swamps and marshes and other wetlands directly interrelated and interdependent with the stream proper.

 

(d)       Flood protection measures which result in channelization should be avoided.

 

(e)        If either bulkheads or riprap walls are necessary, they should be located behind all marshland and as far upland as possible.

 

(f)        Access should be provided over wetlands by piers. While creating disruptions to upland vegetative communities, such placement minimizes the adverse impacts to the wetlands.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission inserted a comma after the word “designed” in subsection (b) pursuant to 1 CMC § 3806(g).

 

§ 145-60-585   Utilities

 

Utilities are services which produce and carry electric power, gas, sewage, communications, and oil. At this time the most feasible methods of transmission are the lineal ones of pipes and wires. The installation of this apparatus necessarily disturbs the landscape but can usually be planned to have minimal visual and physical effect on the environment. Guidelines:

 

(a)        Upon completion of installation/maintenance projects on shorelines, banks should be restored to pre-project configuration, replanted with native species and provided maintenance care until the newly planted vegetation is established.

 

(b)        Whenever these facilities must be placed in a shoreline area, the location should be chosen so as not to obstruct or destroy scenic views. Whenever feasible, these facilities should be placed underground, or designed to do minimal damage to the aesthetic qualities of the shoreline area.

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Part 600 -       Miscellaneous Provisions

 

§ 145-60-601   Severability Provision

 

If any provision of the rules and regulations in this chapter, or the application of any provision of these rules and regulations to any person or any other instrumentality or circumstances shall be held invalid by a court of competent jurisdiction, the remainder of these rules and regulations and the application of the affected provision to other persons, instrumentalities and circumstances, shall not be affected thereby.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).


 

 

Appendix A

 

List of Government Contacts

 

 

For Activities Affecting:

Contact and/or Apply for Permit To:

1.

Coastal wetlands, areas of open tidal waters great ponds streams, rivers, brooks and other wetlands

Coastal Resources Management Office

Governor’s Office

Sixth Floor, Nauru Building

Saipan, MP 96950

Tel. No. (670) 234-6623/7320

2.

Port resources

Commonwealth Port Authority

Saipan International Airport

P.O. Box 1055

Saipan, MP 96950

Tel. No. (670) 234-8315/5962

3.

Dredging in submerged lands

Division of Environmental Quality

Department of Public Health and Environmental Services

Dr. Torres Hospital

P.O. Box 1304

Saipan, MP 96950

Tel. No. (670) 6114/698*

4.

Aquaculture and scientific research in the marine environment

Division of Fish and Wildlife

Department of Natural Resources

Lower Base, Tanapag

Saipan, MP 96950

5.

Historical and Cultural resources

Historic Preservation Office

Community and Cultural Affairs Department

Lower Base, Tanapag

Saipan, MP 96950

Tel. No. (670) 322-9722

 

Applications to any of the above agencies for use of submerged lands will automatically be forwarded to the Department of Natural Resources. Applications for conveyances for activities that do not require a permit from another agency should be made in a letter to the Department discussing the applicant’s request and the reasons justifying approval. The Department may be contacted directly at Capitol Hill, Saipan, MP 96950 (670) 322-9830/9834.

 

* So in original.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 11 Com. Reg. 6065 (Mar. 15, 1989); Proposed 10 Com. Reg. 5762 (Dec. 15, 1988).

 

Commission Comment: The Commission corrected the spelling of “automatically” and “Department.” In the first line of the table, the Commission deleted the repeated words “streams, rivers, brooks.”

 

CHAPTER 145-70

TEMPORARY OCCUPANCY RULES AND REGULATIONS

 


Part 001 -       General Provisions

§ 145-70-001   Authority

§ 145-70-005   Purpose

§ 145-70-010   Definitions

 

Part 100 -       Lease Policies

§ 145-70-101   General Requirements and Restrictions

§ 145-70-105   Procedures for Issuing Leases, Extensions, and Renewals

§ 145-70-110   Lease Agreements Requirements

§ 145-70-115   Lease Form

§ 145-70-120   Underwriting Requirements

 

Part 200 -       Policies and Procedures for Temporary Non Exclusive Occupancy of Public Lands

§ 145-70-201   Scope

§ 145-70-205   General Requirements

§ 145-70-210   Occupancy and Easements for Private Telecommunications

§ 145-70-215   Temporary Occupancy Agreement

§ 145-70-220   Concession Agreements

§ 145-70-225   Occupancy not Covered in this Part

 

Part 300 -       Policies on Appraisals for Leases

§ 145-70-301   Appraisals

 

Part 400 -       Application Processing Fees

§ 145-70-401   Fee Schedule

 

Appendix A - Lease Form

 

Appendix B - Maps

 

 


 

Chapter Authority: N.M.I. Const. art. XI, 1 CMC §§ 2801–2810.

 

Chapter History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Department of Public Lands adopted the regulations proposed at 37 Com. Reg. 37247 (Nov. 28, 2015) with modifications set forth at 38 Com. Reg. 37440 (Jan. 28, 2016). The Commission numbered unnumbered sections and subsections included in the proposed regulations pursuant to 1 CMC § 3806(a). The Commission changed capitalization for the purpose of conformity throughout the chapter pursuant to 1 CMC § 3806(f).

 

Part 001 -       General Provisions

 

§ 145-70-001   Authority

 

The regulations in this chapter are promulgated by the Department of Public Lands pursuant to the authority set forth in Article XI of the Commonwealth Constitution and Public Law 15-2 (1 CMC § 2801 et. seq.).

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission inserted a period at the end of the section to correct a manifest error.

 

§ 145-70-005   Purpose

 

These promulgated rules and regulations govern the leasing and temporary occupancy of public lands whether by permit, lease, or temporary authorization as in conformity with the obligation to objectively manage the use and disposition of public lands set forth at 1 CMC § 2801 et. seq. No commercial use of public lands is authorized or permitted without a valid lease, temporary occupancy agreement, permit, or concession agreement authorized by these regulations.

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

§ 145-70-010   Definitions

 

(a) “Applicant” means the person, persons, entity, or entities that have submitted a proposal to the DPL to lease or otherwise use public lands including respondents to requests for proposals issued by DPL for the leasing, development, or use of public lands, including without limitation persons or entities who have responded to one or more land use RFPs issued by the DPL.

 

(b) “Commercial Use” means used for revenue generating activities. Active use means the actual physical operations or facilities generating revenue. Passive use means a supplementary use that augments the revenue generating operations or facility (e.g. parking lots).

 

(c) “Department” means the Department of Public Lands (DPL).

 

(d) “Government” means, for purposes of the regulations in this chapter, the departments and agencies of the CNMI Government other than the Department of Public Lands, unless otherwise specified in these regulations.

 

(e) “Lessee” means the person, persons, entity, or entities holding leasehold interests in public lands.

 

(f) “Occupant” means the person or entity whose name appears on the temporary occupancy agreement.

 

(g) “Owner” means the person, persons, entity, or entities holding fee simple title in lands that are not public lands.

 

(h) “Permanent Structure” means a structure placed on or in the ground, or attached to another structure or fixture in a fixed position, and intended to remain in place for more than 6 months.

 

(i) “Permittee” means a person or persons given a permit by DPL and whose name appears on the permit.

 

 

(j) “Principal” means the applicant personally or a person employed by the applicant with the legal authority to negotiate, decide, and enter into agreements on behalf of the applicant.

 

(k) “Public Lands” means all those lands defined as public lands by N.M.I. Const. art. XI, § 1 including improvements thereon.

 

(l) “Secretary” means the Secretary of the Department of Public Lands.

 

(m) “Related Party” means the person, persons, entity, or entities who participate in the funding or operations of the applicant or lessee’s development or proposed development including without limitation parent companies in multinational company structures, as well as controlling or major shareholders. For the avoidance of doubt, related party shall include persons or entities that provide funding to an applicant or lessee. Transactions that, because of their nature, may be indicative of the existence of related parties include:

(1) Borrowing or lending on an interest-free basis or at a rate of interest significantly above or below market rates prevailing at the time of the transaction.

(2) Making loans with no scheduled terms for when or how the funds will be repaid.

(3) Lack of sufficient working capital or credit to continue the business, or lack of complete business plan or financial projections.

(4) Exchanging property for similar property in a nonmonetary transaction.

 

(n) “Request for Proposal” (RFP) means an open solicitation made through a bidding process by DPL to determine interest of potential lessees to lease and develop certain public lands at terms determined by or acceptable to DPL.

 

(o) “Roadside Vendor” the use of a temporary structure, vehicle, or mobile canteen for the sale of local produce or fish, other perishables or non-perishable items such as handicrafts, trinkets, souvenirs, or other goods, at a permitted distance from the side of a road or thoroughfare at a location on public land designated by DPL.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission inserted a period at the end of subsection (b).

 

Part 100 -       Lease Policies

 

§ 145-70-101   General Requirements and Restrictions

 

(a) No right or interest in or to public lands shall be created orally. Any right to use, access, or enjoy public lands must be in writing signed by the Secretary in full compliance with these regulations or is void ab initio. Consideration and preference must first be given to non-productive developed public land or underutilized public land before undeveloped land is considered for development. Consideration for entering into a lease shall be consistent with DPL’s fiduciary duties to its beneficiaries. The Secretary of DPL shall have reasonable discretion regarding issues not anticipated by these regulations.

 

(b) Every lease shall be properly documented via a written lease agreement and such other documents deemed necessary or appropriate by DPL to complete the transaction. All duly executed lease agreements shall be recorded at the Commonwealth Recorder’s Office by the party receiving an interest in Public Land in accordance with 2 CMC § 4913. The Department shall strictly enforce all terms of every lease requirement imposed as a condition of legislative approval of a lease or lease extensions, if any. Leases for mining shall require appropriate environmental impact study, damage mitigation plan, and restoration plan, an assessment on the value of minerals to be mined, and any other studies required by law or DPL as a condition precedent to possession. AH costs including those for appraisals, surveys, topographical surveys, geotechnical reports, studies, etc. whether required by the DPL or the Government shall be borne by applicant.

 

(c) Eligibility. All applicants must be current and in good standing with the Department of Finance Division of Revenue and Taxation, all licensing and regulatory authorities, and with the DPL.

(1) Individuals – must be at least 18 years of age.

(2) Businesses – must be duly formed, in good standing and authorized to do business in their jurisdiction of origin AND in the CNMI, and must provide all documentation required by the DPL to confirm such status.

(3) All applicants must demonstrate credit worthiness, ability to pay rent, and ability to fund all proposed development, and to comply with all the conditions and covenants of the lease agreement to the satisfaction of the Secretary.

 

(d) Restrictions.

(1) It is DPL’s preference not to lease public lands where the proposed structures/facilities will overlap boundaries of adjacent private lands.

(i) If necessary and in the best interest of DPL’s beneficiaries, the DPL may permit such development provided that all such proposed development and construction of facilities that will occupy both private and public lands shall be performed in a manner to facilitate and simplify segregation of improvements on the public lands from those on adjacent private lands upon expiration or termination of the lease. Alternatively a land trust consisting of the private lands and public lands may be formed with the DPL as trustee, or the fee simple title to the private lands may be assigned to DPL, at lessee’s expense. For the avoidance of doubt, such permitted improvements shall be designed and constructed to be free and independent from private land improvements so that upon expiration or termination of the lease, when the DPL takes possession of the improvements, such improvements and DPL’s (or its designee’s) operation thereof shall not be dependent upon adjacent private lands. This restriction shall not apply if the fee simple interest in the private lands is assigned or transferred to the DPL as described herein.

(ii) Before commencement of construction or development, lessee shall be required to place on deposit with DPL the amounts necessary to perform such segregation at the expiration or termination of the lease, as estimated by an engineer selected by DPL.

(2) Notwithstanding the foregoing, for minor developments such as parking structures attached to adjacent improvements, if such improvements will be of little value to the DPL, the Secretary may waive the obligations set forth in subsection 1 above if the Applicant places on deposit concurrent with the execution of the lease the projected cost of demolition and removal of improvements, and restoration of leased premises.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

§ 145-70-105   Procedures for Issuing Leases, Extensions, and Renewals

 

(a) The DPL will deal only with the principals of the applicant.

 

(b) DPL shall satisfy its fiduciary duties by taking the following steps towards entering into new leases, extensions, or renewals:

(1) Properties not under lease – DPL shall select proposals that provide DPL the greatest revenue over the course of the lease term. All leases must be aligned with DPL’s land use plan. In all instances, the DPL shall negotiate lease terms most favorable to its beneficiaries.

(i) Unsolicited Proposals – If the DPL receives a proposal or application to lease public land, it shall upon conclusion of negotiations (if any), publish a Notice of Proposed Lease of Public Land in accordance with Public Law 15-2 and these regulations, to determine if there are other interested parties, and consider public comments. If a second or other proposals are received during the notice period, the DPL may either select the most beneficial proposal or issue an RFP.

(ii) Solicited Proposals – If the DPL solicits proposals to lease specific parcels or tracts of public lands and two or more proposals are received by the DPL, DPL may select the most beneficial proposal. If only one proposal is received the DPL may award the sole applicant, re-issue the Request for Proposal, or reserve the relevant parcels for future disposition.

(2) Properties under lease – if a current lessee is interested in re-leasing, extending, or renewing its lease, DPL shall:

(i) Thoroughly review the performance of the lessee to determine if re-leasing or extending the lease is in the best interest of its beneficiaries.

(ii) Issue a Notice of Proposed Lease of Public Lands in accordance with 1 CMC § 2807 at least four years prior to expiration, but only if an extension or renewal of the existing lease is determined to be in the best interest of DPL and its beneficiaries, and no other firm has indicated an interest to lease affected parcel.

(iii) If additional proposals are received in response to such Notice, or if DPL has knowledge of one or more additional interested parties, DPL shall issue an open RFP at least two years prior to the expiration of the existing lease if in DPL’s judgment the second proposal is in the best interest of DPL and is significantly advantageous to the proposal of the existing lessee.

(iv) If a competing proposal does not materially enhance the existing lessee’s proposal, operations, or otherwise project to materially increase the revenue to DPL, and lessee has satisfied all the covenants and conditions of its existing lease, it is DPL’s preference to renew the lease with the current lessee with lease payments comparable to that proposed or implied by the best competing proposal, but in no case shall DPL accept lease rent less than what was established in any preceding period.

 

Modified, 1 CMC § 3806(f).

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

§ 145-70-110   Lease Agreement Requirements

 

DPL shall include in lease agreements provisions typical of commercial practices. All public land leases are on a “triple net” basis “as is where is”. All leases shall conform to the following: provisions:

 

(a) Legal description of the property(ies) subjected to the lease.

 

(b) Purpose – a detailed description of the intended development and operations.

 

(c) Term – the effective date and duration of the lease shall not exceed 25 years. Note: Upon expiration of the term, the property including all improvements shall revert to DPL for renewal, extension, or re-leasing to the highest best bidder as determined by these regulations in accordance with CNMI law.

 

(d) Fees, Security Deposit, Costs.

(1) Prior to the preparation of any lease or supporting document, the applicant shall deposit an administrative processing fee equal to the greater of $5,000, or 0.50% of the estimated value of the subject property.

(2) Prior to any lease approval, lessee must deposit at least 5% of the total cost of the proposed project to which the lease pertains, whether the entire project or only a part of it will be situated on public lands. These funds will be held by the DPL to secure construction start up, and remediation costs.

(3) The security deposit requirement shall also apply to lease extensions or renewals where one or more key factors for approval is lessee’s proposal to further develop the property it currently occupies.

(4) Funds remaining on account with the DPL after the completion of the proposed development in excess of 1% of the development cost shall be released to lessee upon completion of the project development.

(5) Funds shall forfeit to DPL should the project be cancelled or start date delayed more than one year from the execution of the lease. Mere ceremonious commencement (i.e. ground breaking or ribbon cutting without materially beginning and continuing construction) will not avoid forfeiture.

(6) All costs related to the lease including underwriting, appraisals, surveys, topographical surveys consolidations, excavation, studies, recordings, etc. shall be borne by applicant or lessee.

 

(e) Rental Rates.

Rent derived from public lands shall be based on the value of the property, and actually computed and collected on that basis; provided, that the DPL shall, within the limits set by fiduciary duty and the provisions of Public Law 15-2, have discretion in negotiating basic rentals and additional rents upward taking into account changing economic conditions and other relevant trends and factors including other land transactions deemed substantially similar to the proposed lease. For the avoidance of doubt the Secretary of DPL may determine that a property’s true value is greater (but not less than) an appraised value determined by independent appraisal.

(1) New Leases – shall include new leases, and renewals.

(2) Basic rent shall be based on the value of the fee simple title to the property. It is the policy of DPL to collect at least 5% of a property’s value each year for the term of the lease as base rent.

(3) In no event shall the rent in subsequent years be less than the amounts in previous years of the lease.

(4) Properties shall be re appraised and basic rent adjusted upward to market every five years based on an updated appraisal. For the purpose of determining basic rent, the value in subsequent periods shall include all improvements on the property less the value of improvements made by the lessee during the term of the lease.

(5) New Leases – shall be based on the value of the fee simple interest including improvements (if any).

(6) Extensions – shall be based on the appraised value of the fee simple interest including improvements less the value of improvements made by the lessee since the inception of the lease.

(7) Renewals – shall be treated as new leases for purposes of determining rent.

(8) Additional Rent – Percentage of Business Gross Receipts – due to the scarcity of public lands and in accordance with its fiduciary duties owed to its beneficiaries, DPL shall charge additional rent that allows its beneficiaries to participate in the revenues generated as a result of the lease. This rent shall be charged as a percentage of lessee’s business gross receipts (BGR) and shall also apply to the BGR of lessee’s subtenants, concessionaries and others permitted to engage in commercial activity upon the leased premises. For the sake of clarity, BGR includes enterprise BGR, not just BGR derived from parts of the enterprise situated on public lands. The additional rent per year for every year of the lease term shall be as follows:

 

            Business Gross Receipt Payment Schedule

 

 

Annual BGR Amounts

 

 

Tier

From

To

% of BGR

Minimum

Per Tier

1

$                        -

$          50,000.49

3.00%

 

2

$          50,000.50

$        100,000.49

2.89%

$       1,500

3

$        100,000.50

$        200,000.49

2.78%

$       2,889

4

$        200,000.50

$        400,000.49

2.67%

$       5,556

5

$        400,000.50

$        800,000.49

2.56%

$     10,667

6

$        800,000.50

$     1,600,000.49

2.44%

$     20,445

7

$     1,600,000.50

$     3,200,000.49

2.33%

$     39,112

8

$     3,200,000.50

$     6,400,000.49

2.22%

$     74,669

9

$     6,400,000.50

$   12,800,000.49

2.11%

$   142,227

10

$   12,800,000.50

and Over

2.00%

$   270,234

 

(9)  Passive Uses – Rent for leases of public lands for use as parking  area  or  activities that supplement the actual enterprise shall be basic rent and additional rents as outlined in this subsection. Additional rent shall be assessed based on the ratio of public lands to lessee’s other lands being used for the same purpose on the BGR of the entire enterprise supplemented by the public lands (e.g. Lessee’s existing ground parking space area is 500 square meters. Lessee wants to expand parking area by leasing 400 square meters of public lands. The ratio of public lands for use as additional parking area is 400/(500+400) = 44.4%. Assuming the lease is within the first five-year period rent will be assessed at the greater of basic rent, or 44.4% x 1.0% x BGR (i.e. 0.444% of BGR)). However, the strategic value of the property shall be the paramount consideration when determining the appropriate rate to be applied, and in such cases as developments that could not proceed without the use of public land, additional rent will not be reduced by any apportionment provisions set forth herein.

(10) All rental amounts payable under all lease agreements and reimbursement of costs incurred by DPL as a result of enforcing the lease shall be fully assessed and collected from the Lessee.

(11) Lease rental payments shall be collected when due or timely pursuit of default provisions of the lease agreement shall be made.

(12) Past due rental payments of any amount shall bear interest at one and one half percent (1.5%) per month compounded monthly, from the date it becomes due until fully paid.

(13) Application of Rent Payments – Rent payments shall be applied in the following order (with oldest receivables in each category being credited first):

(i) Outstanding cost reimbursements due to DPL first.

(ii) Penalties due second.

(iii) Past due interest third.

(iv) Rent last.

 

(f) Construction Quality, Maintenance, Repairs, Alterations.

(1) Construction repairs and alterations shall be in good workmanlike manner and in compliance with applicable laws, regulations, ordinances, and building codes.

(2) Maintenance – Lessee shall maintain its leased premises in the level of condition at industry standards of similar facilities for the duration of the lease.

(3) Alterations – Lessee shall inform DPL of any proposed alterations or improvements exceeding 1.00% of the total cost of the facility or will result in the reducing the value of the property by more than 1.00% shall be subject to DPL’s prior approval. Proposed alterations shall be in line with or enhancive to existing operations and lessee shall submit pro forma financial statements showing the additional revenues (or revenue reduction) anticipated as a result of the alteration. DPL may require additional documentation for a proper assessment.

 

(g) Financing – Submission by lessee (and related party if any portion of the operations will be continuously funded by the related party) of the following periodically as required in the lease agreement: audited financial statements, annual reports of lessee, related parties, and subtenants, and CNMI BGR tax filings from lessee.

(1) No later than sixty days after lessee’s fiscal year, financial statements audited by a certified public accountant certified in the United States comparing financial information of the past two years including any restatements on its profit and loss and cash flow statements, change in ownership and owner’s equity, and balance sheet.

(2) Applicants and lessees with less than $500,000 in BGR may submit management prepared financial statements together with a certified tax transcript for the corresponding period in lieu of audited statements.

(3) Publicly held corporations and corporations required to issue annual reports to their shareholders shall submit their annual report to shareholders to DPL at the time of issuance. Lessees shall submit to DPL all periodic reports required by the CNMI Department of Commerce before the filing deadline.

(4) Financial statements from lessee and subtenants shall include a schedule of gross receipts indicating sources and deductions in support of the gross receipts fee and any other documents DPL may deem necessary to properly determine lessee’s compliance with conditions or covenants of the lease.

(5) Submit CNMI BGR tax filings upon filing but no later than one tax period after the filing deadline.

 

(h) Guarantees. The following guaranties and security are required for all public lands leases:

(1) Guarantees from all related parties to guaranty lessee’s obligations under the lease and funding of the proposed development.

(2) Formal written resolutions authorizing the guarantee for each guarantor other than individual guarantors.

(3) Performance bond, completion bond, stand by letter of credit, or a combination thereof covering 100% of development cost.

 

(i) Assignment and Subleases – Leases shall not be assigned or subleased in part or in whole without the prior written consent of the DPL.

(1) Proposed assignees and sublessees shall be subject to the same eligibility requirements, qualifying factors, and level of scrutiny as lessees.

(2) Leases of less than five years from date of execution or within five years of expiration shall not be assignable.

(3) In no instance shall the deposits of applicant or lessee be refunded until assignee or subtenant deposits equal or greater amounts with DPL.

(4) Lessee and assignee or subtenant shall provide DPL a complete and accurate copy of their proposed assignment agreement and/or sublease showing the total consideration given for or in connection with the assignment or subleasing transaction.

(5) DPL shall charge an assignment fee of 25% of the value of the sublease or assignment.

 

(j) Renewals, Extensions – DPL will consider proposals to renew or extend leases no sooner than the latter of the completion of construction or two years after the commencement date of the lease agreement, and thereafter, at least two years prior to the expiration of an existing lease. Such consideration shall be based on the lessee’s performance under its existing lease.

(1) Consideration for renewal and extension shall be based on lessee’s performance on its existing lease and subject to the same eligibility requirements, qualifying factors, and level of scrutiny as new lessees. Lessees with more than three late payments within the previous 24-month period shall be ineligible for renewal or extension.

(2) Base rent for renewals shall be based on the appraisal of the property including improvements.

 

(k) Mortgage.

(1) The lessee and its permitted successors and assigns may, subject to the express prior written approval of the DPL, mortgage its lease and its interest in the property provided that no holder of any mortgage of the lease, or any one claiming by, through or under any such mortgage shall, by virtue thereof, except as otherwise specified in the lease agreement acquire any greater rights hereunder than the lessee.

(2) No mortgage of the lease or the lessee’s interest in the leased property, in whole or in part, by the lessee or the lessee’s successors or assigns shall be valid, unless:

(i) At the time of the making of such mortgage, there shall be no default under any of the agreements, terms, covenants and conditions to be performed by the lessee under the lease;

(ii) The mortgage shall be subject to all the agreements, terms, covenants and conditions of the lease,

(iii) The mortgage shall reserve to the DPL prior right, and in the event of lessee’s default under the same and after notice of the same character and duration as required to be given to Lessee, to correct the default or to purchase the same and terminate the lease

(3) The mortgage shall contain the following provisions: The consent by the DPL to an assignment, transfer, management contract, or subletting may be granted, denied or made subject to such conditions as the DPL finds it in the best interest of its beneficiaries.

(4) All proceeds from the facility secured by the mortgage shall be used solely for the improvement of the leased property.

 

(l) Termination, Recapture

(1) Notice shall be given to lessees who are in material default as follows: 1st notice with 30 days to cure, final notice with 15 days to cure, and notice of termination effective immediately.

(2) DPL may terminate a lease agreement that remains in default forty five days after the 1st notice has been delivered unless otherwise stated in these regulations for reasons including without limitation:

(i) Failure to consistently and significantly reduce past due rents, fees, or taxes or other charges required to be paid by lessees;

(ii) Other material defaults due to non performance including without limitation failure to complete development in accordance with the development plan and projections upon which a lease is based;

(iii) Abandonment; and

(iv) Use of the property other than lessee’s proposed purpose and as stated in the lease.

(3) DPL may recapture all or portions of properties under lease in the event the use of the property is not consistent with the proposed development as stated in the lease or in the event of under­utilization of public lands when such lands may have a higher and better use via notice to lessee.

 

(m) Holdover.

(1) If a lessee fails to vacate the leased property upon the expiration, termination or cancellation of its lease, Lessee shall be deemed a holdover tenant.

(2) The fee during any holdover period shall be not less than 150% of the latest basic rent amount, and additional rent.

(3) Payment of the holdover fee shall in no way constitute a limitation upon any rights or remedies the DPL may be entitled to pursue for violation of the lease, for trespass or illegal possession or for any other cause of action arising out of the holdover tenant’s failure to vacate the premises including the right to evict the holdover tenant without court action, and the cost thereof to be paid by the holdover tenant.

 

(4) The lessee shall be responsible, at its sole cost and expense and even after termination of the lease, for removing any person or entity, authorized or unauthorized by the lessee, from the premises who may have been on the premises prior to the termination of the lease and continues to occupy a portion of the premises thereafter. The failure of the lessee to remove the person or entity from the premises at the end of the lease constitutes a holdover.

 

Modified, 1 CMC § 3806(e), (f), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission struck the figures “(60)” from subsection (g)(1) and “(45)” from subsection (l)(2) as mere repetitions of words. The Commission removed a colon after “following” in the first paragraph; inserted periods after “etc” in subsection (d)(6) and at the ends of subsections (e)(9)(13)(i)–(iv), (g)(2), (j)(2), (k)(3), and (m)(1); changed brackets in subsection (e)(9) to parentheses; and changed “five year from” to “five years from” in subsection (i)(2).

 

§ 145-70-115   Lease Form

 

All leases shall be in the form set forth in Appendix A below.

 

Modified, 1 CMC § 3806(b), (d).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission included the lease form included in Appendix A of this chapter. The Commission substituted “set forth below” with “set forth in Appendix A below” pursuant to 1 CMC § 3806(d).

 

§ 145-70-120   Underwriting Requirements

 

In order for the DPL to properly assess and compare proposals, Project Details – All proposals submitted shall include the following:

 

(a) Qualifying Criteria.

(1) Character – Evidence of experience in and knowledge of the industry of the proposed development and evidence that applicant and related parties are in good standing with taxing and regulatory authorities, creditors, and depository institutions.

(2) Capacity – Evidence of a combined net worth of applicant and related parties of at least 30% of the proposed development cost with current free cash flow to cover at least 150% of basic rent.

(3) Capital – Evidence of combined liquid capital (cash or cash equivalents) to cover at least 20% of the total cost of development or attestation from a reputable investment bank experienced in funding similar projects on applicant group’s ability to raise 105% of the capital required to fund the development including applicant's capital.

 

(b) Business plan including financial projections, opportunities and risks, and who or what the competition is in its industry. Pro forma financial statements including profit and loss statement, cash flows, and balance sheet for first five years of the proposed development, and revenue projections over the life of the lease. If multiple revenue generating activities will be conducted, pro forma statements shall show revenues from each activity including the subletting of commercial space to tenants.

 

(c) Financial Documents.

(1) Evidence of adequate financing to fund the proposed development and satisfy payment obligations under the proposed lease including documents showing the funding source and an attestation to the legal nature of funds.

(2) Financial Statements of applicant, guarantors, related party, or equity investors/shareholders of the Applicant. Audited statements are required for companies with business gross revenues of $500,000 or greater

 

(d) Ownership, Structure, Resolutions to Enter Lease, Guarantees

(1) List of owners having an ownership interest in the applicant of 10% or greater.

(2) Certified entity formation documentation, certificate of incumbency, and transactional authorizations of lessee and related parties. If lessee or any related party is not a domestic entity or resident individual, such party shall first be domesticated and authorized to do business in the Commonwealth. Foreign documents and signatures shall be authenticated and legalized (or apostilled if originated in Hague Convention jurisdiction). An organizational chart showing the relationship of parent companies, subsidiaries, and related parties involved in the funding and operations of the proposed development shall be provided.

(3) Formal resolution from applicant authorizing applicant to enter a lease with the DPL and designating a specific director or officer of applicant to negotiate and execute the lease agreement and related transactional documents.

(4) Formal resolution from each related party identifying its authorized signatory and authorizing related party to provide full financial support for the proposed project and to guarantee applicant’s obligations under the lease agreement.

(5) Evidence of ability to secure performance bond, completion bond and/or stand by letter of credit as security for lessee’s development obligations under the lease.

(6) Agreement to issue personal guarantee from all related parties.

 

(e) Construction Plans and Specifications. Applicant shall provide:

(1) Architectural layout and design of the development overall with its application, and the same shall be updated at each phase of development.

(2) Renderings showing the proposed layout, elevations of the facility and how it will be situated on the premises.

(3) Timeline for construction schedule and cost schedule updated at each phase of development.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission inserted open parentheses to subsections (a)(1)–(3); changed “incumbency” and “apostiled” in subsection (d)(2) to “incumbency” and “apostilled” respectively; changed “and/ or” to “and/or” in subsection (d)(5); and inserted a period at the end of subsections (d)(5) and (d)(6).

 

Part 200 -       Policies and Procedures for Temporary Non Exclusive Occupancy of Public Lands

 

§ 145-70-201   Scope

 

DPL’s authority does not extend to the issuance of land use permits and licenses. “Land use” in the licensing and permitting context generally involves the regulation of specific uses or activities, without regard to ownership or authorization to occupy land. The authorities that regulate the use of land in the Commonwealth include Zoning, BECQ, Historic Preservation Office, and other Government regulatory agencies that issue permits and licenses pursuant to their respective enabling legislation. DPL, however is charged with management of the use of public lands, subject to its land use plan and all other land use regulations and regulatory agency approvals. The regulations in this Part describe how the DPL will manage and authorize such public land use, and the fees and charges that will be imposed therefore. These regulations neither supersede, nor amend the Commonwealth’s land use regulations.

 

Modified, 1 CMC § 3806(a).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission numbered this section and created the section title.

 

§ 145-70-202   General Requirements

 

(a) The temporary occupancy of public lands or properties may be authorized via temporary occupancy agreements, concession agreements, permits, and other agreements appropriate for the activity to be conducted. The activity for which the premises will be used must be permitted by the land use permitting agencies of the CNMI and applicable laws. These agreements shall generally:

(1) Provide a benefit to the public;

(2) Be short term or intermittent in nature;

(3) Be reviewed periodically for compliance;

(4) Prohibit the construction of permanent structures;

(5) Provide non-exclusive rights to the land or property unless otherwise stated in these regulations;

(6) Be non-transferable, non-assignable, and cannot be sold, subjected to mortgage, or used as collateral;

(7) Self-terminate should occupant or operator cease to exist or ceases the activity described in the application; and

(8) Require compliance with all business licensing, permitting, and regulatory requirements for business or other activities to be conducted including without limitation all zoning, building and other permits as applicable.

 

Modified, 1 CMC § 3806(a), (f).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission renumbered this section from § 145-70-201 to § 145-70-202.

 

§ 145-70-205   Occupancy and Easements for Private Telecommunications

 

(a)Non-exclusive subsurface occupancy rights or easements granted to non-governmental telecommunications service providers may be granted for multiple year terms up to twenty five years in total. Occupancy or proposed uses that sever, transact, or present a material impediment to the use of the surface land or air above or otherwise render the burdened and/or adjacent lands undevelopable, shall not be eligible for easement or similar authorization contemplated in this section but instead, shall only be granted through leases of full burdened parcels on commercially reasonable terms in accordance with the leasing regulations set forth herein.

 

(b) Underground Telecommunication Cables – The activity involving the use of public lands to lay, maintain and operate underground telecommunication cable wires and related· telecommunication equipment. Upon promulgation of these regulations the annual fee for buried cable trenches shall be 5.0% per year of 50.0% of average market price of lands on the island where the trenching will occur. Average market price shall be an area-weighted average determined by DPL based on recent publicly available real estate sales data for fee simple land transactions.

 

(c) Telecommunication Tower – The activity involving the use of public lands to, erect, maintain and operate commercial pedestals, access nodes underground telecommunication cable wires and radio transmitter antenna, and or wireless communication equipment shelter for cellular telephones, paging systems or similar related wireless telecommunication equipment. The annual fee for the use of public land for this purpose shall be 8.00% of the estimated fair market value. In environmentally, historically, or otherwise sensitive areas including tourist destinations, such activity (if permitted in DPL’s sole discretion) may be subject to space-sharing conditions as imposed by DPL.

 

Modified, 1 CMC § 3806(a), (e), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission numbered the leading paragraph (a), and renumbered subsections (a) and (b) to subsections (b) and (c) respectively. The Commission changed “may granted” to “may be granted” in subsection (a). The Commission struck the figure “(25)” in subsection (a) as a mere repetition of written words. The Commission inserted a period at the end of subsection (c).

 

§ 145-70-210   Temporary Occupancy Agreement

 

(a)Temporary Occupancy Agreements (TOA) shall be used for the temporary occupancy of certain public lands laying fallow at the time of application where no proposals have been received by DPL for the long term lease of those lands. In any case, TOAs do not in any way grant an interest in the land, written or implied, and the construction of permanent structures shall not be allowed. Allowable purposes include short-term agricultural use, temporary livestock grazing, sporting or social events, or planning activities in anticipation of a lease. TOAs are subject to termination upon thirty day’s written notice by DPL.

 

(b) The following apply to all TOAs:

(1) All TOAs are terminable by DPL at will;

(2) Applications shall be made annually two months prior to expiration or as solicited via a request for proposal or at auction;

(3) Fee per use shall be an annual charge of 8% of BGR but not less than $250, or such greater amount as bid;

(4) TOAs are non exclusive with the exception of agricultural, vehicular parking, staging, and quarry which shall be exclusive and limited to the activities performed directly by occupant;

(5) Property shall be used solely as outlined in the application for TOA in accordance and DPLs regulations for the operations of the occupant;

(6) DPL can demand the removal of any and all structures at any time at occupant’s expense.

 

(c) Agricultural use shall be limited to family subsistence (non-commercial) purposes as follows:

(1) Farming - limited to up to 2,000 square meters (per household) of public lands determined by DPL to be suitable for farming, annual fee shall be $250.00 per TOA; and

(2) Livestock – limited to up to 10,000 square meters (per household) of public lands for grazing, or livestock, annual fee shall be $1,250.00 per TOA.

(3) Agricultural uses in excess of the limitations in this subsection, or which require fixed terms shall be subject to the lease requirements of these regulations.

 

(d) Vehicular Parking - The activity that involves a location(s) and designated area(s)/assignment(s) on public land where motor vehicles may be temporarily stored or parked.

(1) Temporary vehicular parking spaces are categorized as primary, secondary, and tertiary parking zones. The parking zone descriptions for Rota and Tinian, respectively are shown in Schedule 145-70-210(d)(1). The parking zones for Saipan are tied to the Saipan Zoning districts as follows:

 

Primary

Secondary

Tertiary

GC: Garapan Core

IN: Industrial

AG: Agriculture

GE: Garapan East

VC: Village Commercial

RU: Rural

BR: Beach Road

 

 

MC: Mixed Commercial

 

 

TR: Tourist Resort

 

 

 

(2) The fees quarterly per square meter fee shall be $10.00 for primary, $6.00 for secondary, and $2.00 for tertiary zones.

 

(d) Signboards/Banners – The activity that involves erecting or placement of a temporary board, poster, banner, a piece of cloth or bunting, placard, or other temporary sign varying in size, color, and design which is displayed, posted, erected, hung, or tied in a certain public location or tract of land to advertise or to convey information or a direction.

(1) Public lands zones for the placement of signboards or banners are categorized as primary, secondary, and tertiary zones identical to vehicular parking.

(2) CNMI government shall not be charged a fee for locally funded signboards for public awareness purposes. The fees for the placement of signboard by other applicants are shown in the tables below:

 

Signboard Permit Standard Fees

 

 

Primary Zone

Secondary Zone

Tertiary Zone

Annually

$600.00

$350.00

$250.00

Monthly

$100.00

$  70.00

$  50.00

 

 

 

Signboard Permit Fees – Non-Income Generating Non-Profits

 

 

All Zones

 

 

Annually

$250.00

 

 

Monthly

$50.00

 

 

 

(e) Roadside Vendors – The activity that involves the use of a temporary structure, vehicle, or mobile canteen for the sale of local produce or fish, other perishables or non-perishable items such as handicrafts, trinkets, souvenirs, or other goods, at a permitted distance from the side of a road or thoroughfare at a location(s) or designated area(s)/assignment(s) on public land.

 

(f) Maintenance – The activity that involves the clearing and cutting of brush or vegetation for no­use purposes (ex. fire break).

(1) Residential – shall not be on more than 300 square meters of public lands adjacent to an occupant’s private property. The fee is a non-refundable application fee of $20.00 per year.

 

(g) Filming/Photography – The activity involving the use of public lands in the production of video or motion picture films, commercial advertisement filming, photography and other activities that involve video or film production at certain locations or areas of public lands.

(1) The fee for engaging in commercial motion/still filming or photography on public land in any location in the CNMI is $250.00 per day plus location credits within the publication indicating that the film or photograph was taken in the CNMI, the island, and the specific location. Use of any part of a day is charged as one full day. One full day is defined as a continuous 24-hour period beginning at 12:01 a.m.

(2) The fee for still/portrait photography not for commercial publication, sale, or distribution (e.g. family portrait intended for sale only to the subject family) shall be $1,000.00 per year per commercial photographer.

(3) The occupant shall provide DPL a copy of the finished product, and location credits within the product indicating that the film or photograph was taken in the CNMI, the island, and specific location.

(4) Applicants must submit a copy of their CNMI business license, sufficient liability insurance, and an approved CRM permit along with their application.

 

(h) Staging – The activity involving the temporary use of public lands to store or place construction equipment, materials, tool sheds, contractor’s trailer or field office, and for storage or stockpiling of materials (e.g. coral, aggregate, or manufactured sand), and other similar uses incidental to a construction project. The fee for the temporary use of public land for a staging area is 8.00% of the property value per year, or a fraction thereof.

 

(i) Quarry – A large, open excavation or pit from which rock products or other minerals are extracted by excavation, cutting, or blasting (this definition also includes mining activities).

(1) The permit shall specify the type of materials the permittee is authorized to extract and sell.

(2) Upon promulgation of these regulations, the minimum annual rent shall be the total of $12,000. Each year following promulgation of these regulations, the minimum annual rent shall increase by 5.00% in each subsequent year. Additionally, permittee shall pay a royalty fee of at least $3.00 per cubic yard of limestone materials extracted, plus 0.50% of BGR, or such greater amounts as proposed for each category.

(3) Extraction of other materials shall be subject to additional permitting and assessed a higher royalty fee as a percentage of market prices as quoted on a major U.S. commodities exchange for those materials or minerals.

 

(j) Encroachment – The activity involving the temporary use of public land for commercial or residential purposes (e.g., barbeque pavilions, temporary and permanent structures, etc.).

(1) The annual fee for the temporary permitted encroachment on public land for commercial purposes is based on 8.00% of the estimated fair market value or 3.00% gross receipts if this amount is greater than the annual permit fee.

(2) The annual fee for the encroachment of public land for residential purposes is 4.00% of the estimated fair market value.

 

Modified, 1 CMC § 3806(a), (c), (e), (f), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission numbered the leading paragraph (a) and accordingly renumbered the following subsections consecutively. The Commission changed the reference number “145-70-210(c)(1)” in subsection (d) to “145-70-210(d)(1)” to agree with the renumbered subsection. The Commission struck the figure “(30)” in subsection (a) as a mere repetition of words. The Commission changed “; and” at the end of subsection (b)(6) to a period; changed “TOA’s” in this section to “TOAs”; changed “reglations” in subsection (i)(2) to “regulations”; and removed the second comma after “e.g.” and inserted a period after “etc” in subsection (j).

 

§ 145-70-215   Concession Agreements

 

Concession agreements grant the concessionaire the right to conduct business operations on public land on terms determined by DPL.

 

(a) Upon receipt of request, DPL will determine the desirability of proposed use and past performance and/or experience (if any) of proposed concessionaire. If acceptable to the DPL and if consistent with designated use, zoning, surrounding activities, DPL may issue a notice of intent.

 

(b) DPL may issue an RFP or conduct an auction if there are two or more similar competing interests in the concession area, or in any instance at the discretion of the Secretary.

 

(c) Monthly fees of at least $250.00 per concession (up to 200 square feet) shall be charged in addition to 3% of BGR. Concessions negotiated through RFP or auction may be subject to higher fees based upon applicant’s proposal or bid amount.

 

(d) Premises shall be used solely for the business operations of the operator. Subconcessions are not permitted unless expressly authorized in these regulations.

 

(e) Term shall be for no longer than one year per concession agreement with the exception of the Managaha Concession.

 

(f) Criteria for evaluating an application/proposal for a concession agreement under consideration shall be the same as those outlined in the regulation on leases.

 

(g) Beach concessions for beach and ocean recreational activities shall be limited as follows:

(1) Concessions for activities involving motorized water craft shall not be permitted outside of the area designated by the BECQ – Coastal Resource Management Office and shall occur only within specific zones authorized by DPL.

(i) Concessions are restricted to areas adjacent to boundary corners of hotels, or if no hotel is located in the vicinity, to the perimeter boundaries of the public land perpendicular to the high water mark.

(ii) Beach concession permits will be limited to twenty five total concessions per year due to limited space and safety concerns and in an effort to maintain a peaceful beach experience for those not participating in concession activities.

(2) Concessions for activities not involving motorized water craft shall only be limited to location not restricted by BECQ.

(3) All concession agreements shall expire same day annually, and locations shall be distributed via annual RFP or other competitive bidding process (e.g. live auction), or lottery to ensure fair distribution. Said process will be announced at least ninety days prior to the annual expiration of concession agreements.

(4) Enforcement procedures shall be as follows:

(i) A first violation of permit terms or conditions will result in a citation and fine of $200.

(ii) A second violation within thirty days of any citation shall result in an order to show cause not to terminate. A hearing shall be scheduled within fifteen days if requested by concessionaire. If no hearing is requested, Concessionaire’s authorization shall be terminated with immediate effect. Violators shall not be eligible for a concession agreement for three years following any termination.

 

Modified, 1 CMC § 3806(e), (f), (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission struck the figure “(90)” in subsection (g)(3) and struck the figures “(30)”, “(15)”, and “(3)” in subsection (g)(4)(ii) as a mere repetitions of written words. Commission inserted open parentheses to subsections (a)–(g); changed “desirablity” in subsection (a) to “desirability”; changed “Subconcesions” in subsection (d) to “Subconcessions”; changed “an Concession” to “a concession” in subsection (f); and changed “boudary”, “vacinity”, and “perimiter” in subsection (g)(1)(i) to “boundary”, “vicinity”, and “perimeter” respectively.

 

§ 145-70-220   Occupancy not Covered in this Part

 

Proposed occupancy and use of public lands not covered under this Part shall be evaluated under Part 100 of this Chapter and shall be subject to those requirements.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission substituted “Part” for the term “Subsection” in the section title and the body of the section, and substituted “Part 100 of this Chapter” for the term “the section on leases” in the body of the section.

 

Part 300 -       Policies on Appraisals for Leases

 

§ 145-70-301   Appraisals

 

(a) Procedures are hereby established for the regular appraisal of all public lands leased for commercial purposes, which ensure that the fair market value basis for computation of basic rent for any given lease is updated no less frequently than every five years. All appraisal reports shall be reviewed by DPL’s staff appraiser for completeness of the technical aspects, and to certify if the appraised value meets or exceeds the fair market value of the property. The findings of the staff appraisers shall be for internal use only. As this information may affect the negotiation of lease terms it shall be held confidential during negotiations. DPL may discuss any areas of concern with the independent appraiser and the applicant.

 

(b) The cost of appraisals and their review shall be borne by applicant or lessee and in no instance shall DPL reimburse the cost to lessee or offset any such costs or expenses against rent. However, DPL shall require the appraiser to acknowledge that DPL is the client and that the report is being prepared on behalf of DPL.

 

(c) Appraisals shall be first prepared by an independent U.S.-CNMI certified general real estate appraiser who is licensed to do business in the CNMI. The appraiser shall acknowledge that the appraisal report is being prepared in accordance with the requirements of the appraisal standards and procedures for the benefit of the Department of Public Lands.

 

(d) All appraisals must be performed and completed in compliance with the current Uniform Standards of Professional Appraisal Practice (USPAP) and the CNMI issued regulations and procedures by the Board of Professional Licensing.

 

(e) The Secretary shall review all appraisal reports for reasonableness, and shall use the value shown in the report as a guide to assess annual base rent. The value may be adjusted upwards for reasonableness if deemed appropriate by the Secretary to take into account the strategic value of the property and recent real estate sales or lease transactions that were not adequately considered by the appraiser in the Secretary’s sole opinion.

 

(f) Lessee shall re-appraise the fee simple interest of the leased property every five years on the anniversary of the lease and if necessary rent shall be adjusted upward to current value based on the new appraisal as adjusted by the Secretary in conformance with these regulations.

 

Modified, 1 CMC § 3806(a), (f).

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission numbered the leading paragraph (a) and accordingly renumbered the following subsections consecutively.

 

Part 400 -       Application Processing Fees

 

§ 145-70-401   Fee Schedule

 

DPL shall charge an application fee to recover the cost of processing. Unless otherwise stated in these regulations, the application processing fees are as follows:

 

Transaction

Application Fee

Temporary Operating Agreement

$                  50.00

Renewal of TOA

$                  50.00

Amendment of TOA

$                  50.00

Concessions

$                  75.00

 

 

Amendment of Lease Agreement

$             1,500.00

Lease Agreement Extension

$             2,500.00

Assignment of Lease Agreement

$             2,500.00

Sublease Agreement

$             2,500.00

Renewal of Sublease Agreement

$             2,500.00

 

Modified, 1 CMC § 3806(b).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission rearranged the material under Part 400 under this section to fit harmoniously with the Code.

 

Part 500 -       Request for Proposal Requirements

 

§ 145-70-501   Request for Proposals

 

DPL may issue RFPs at the discretion of the Secretary. At a minimum, RFPs shall require the following:

 

(a) A description of the property, including the legal description and physical location in layman’s terms making it readily identifiable by interested firms and the general public;

 

(b) Interested firms shall be allowed to view the property and shall be provided general information on property including photographs, land maps, and boundary descriptions;

 

(c) Requirement for Proposals. Interested firms shall:

(1) Identify the applicant, and if the applicant is not a natural person, the names of the officers, directors, and principal shareholders or members of the proposed lessee, and including all real parties in interest;

(2) Identify the names of principals, and attorneys that will be involved in negotiating the lease on behalf of the proposed lessee;

(3) Provide a concise statement of the intended use of the property;

(4) Provide a detailed description of proposed structures/facilities to be built on the land including architectural renderings and landscaping. If existing improvements will be replaced with new improvements, proposer shall additionally provide plans for removal and disposal of demolished or excavated materials including a timeline of intended progress;

(5) Provide a Gantt chart showing construction time line, cost per phase if construction will occur in multiple phases, and total cost of improvements;

(6) Provide five-year pro forma financial statements including business gross revenue projections starting in year one of operations including rental income lessee anticipates to receive from subtenants, and the potential BGR of subtenants;

(7) Provide an estimate of number of jobs required for operations (total full time equivalents) and shall provide recruiting plans.

 

(d) Criteria for comparing competing proposals include:

(1) Rental income to DPL in absolute dollars;

(2) Cost of construction of the development (and anticipated value of improvements);

(3) Lessee’s credit worthiness and ability to fund the proposed development;

(4) Consistency of the proposed development with DPL’s land use plan and other applicable land use laws and regulations.

 

(e) In the event two or more proposals are determined to be similarly advantageous, DPL may request more information from respondents for clarification purposes, or conduct in-person interviews to determine the proposal that is most advantageous to DPL and its beneficiaries.

 

(f) DPL shall always request a best and final offer on the amount of rent payments and public benefit options before selecting the final proposal.

 

(g) In the event there are more than one interested party in the same property (whether all or portions thereof), priority shall be given to the party that is willing to pay the highest premium above the minimum payment amount and whose proposal is most consistent with the highest and best use of the property.

 

(h) Criteria for award:

(1) Highest rental income to DPL

(2) Cost of construction

(3) Consistency of the proposed development with DPL’s land use plan 

(4) Lessee’s credit worthiness and ability to fund the proposed development 

(5) Negotiated lease terms most favorable to DPL 

 

Modified, 1 CMC § 3806(a), (b), (f) (g).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission numbered this section, created the section title, and renumbered subsections (c)(4)[second]–(6) to subsections (c)(5)–(7) respectively. The Commission inserted a semicolon at the end of subsection (c)(6), inserted a period at the end of subsection (c)(7), inserted a period at the end of subsection (e), and changed the period in subsection (h) to a colon.

 


 

Appendix A

 

 

Modified, 1 CMC § 3806(b).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission included the lease form from § 145-70-115 in Appendix A to fit harmoniously in the Code.

 

Appendix B

 

 

Modified, 1 CMC § 3806(b).

 

History: Adopted 38 Com. Reg. 37440 (Jan. 28, 2016); Emergency and Proposed 37 Com. Reg. 37247 (Nov. 28, 2015) (effective for 120 days from Nov. 28, 2015).

 

Commission Comment: The Commission rearranged these maps into Appendix B to fit harmoniously in the Code.