Or. Admin. Code § 141-126-0140

Current through Register Vol. 64, No. 1, January 1, 2025

Section 141-126-0140 - Lease Application Review and Approval Process

(1) Upon receipt of an application for a lease, the department will determine:

(a) If the application is complete and accurate including all required documentation;

(b) If the requested area is available for the requested use;

(c) The primary type of use (non-commercial, commercial, or cellular communications) being requested through the application. These use categories will be used to determine the amount of compensation payable to the department pursuant to OAR 141-126-0150 and OAR 141-126-0210;

(d) If a lease under these rules is the required form of authorization;

(e) If another authorization under separate department rules may also be required along with a communication site facility lease; and

(f) If additional information is required concerning the:

(A) Proposed use of the state-owned land;

(B) Applicant's financial status or past business or management practices; and

(C) If the equipment and structures described in the application will be the property of the applicant or another person.

(2) The department will advise the applicant of its determination concerning each of the factors in OAR 141-126-0140(1) within 30 calendar days of receipt of the application. Applications determined by the department to be incomplete, or for an area in which the use would be incompatible, will be returned to the applicant with a written explanation of the reason(s) for rejection.

(3) If an application rejected for incompleteness is resubmitted within 90 calendar days from the date the department returned it to the applicant (as determined by the date of postmark or email) with all deficiencies noted by the department corrected, no additional application fee will be assessed.

(4) If more than one application for a specific area is received by the department for the same or conflicting uses subject to authorization by a lease, the department may:

(a) Determine which proposed application best fulfills the policies specified in OAR 141-126-0110 and accept and proceed with that application and deny the others; or

(b) If neither use is determined by the department to be demonstrably better, make the requested area available to the public by competitive bid pursuant to OAR 141-126-0210.

(5) Upon acceptance by the department, the application for a new lease will be circulated to applicable local, state, federal agencies, Tribal governments, and other interested persons, including but not limited to adjacent property owners, lessees, or persons granted other authorizations from the department, for review and comment. As a part of this review, the department will specifically request comments concerning:

(a) The presence of state or federally listed threatened and endangered species (including candidate species) and if a survey is required;

(b) Archaeological and historic resources within the requested area that may be disturbed by the proposed use and if an archaeological survey is required;

(c) Conformance of the proposed use with local, state, and federal laws and rules;

(d) Conformance of the proposed use with the local comprehensive land use planning and zoning ordinances;

(e) Conformance with the policies described in OAR 141-126-0110 of these rules; and

(f) Potential conflicts of the proposed use with existing or proposed uses of the requested area.

(6) The department may request comments from the Federal Communications Commission, Oregon Public Utility Commission, Federal Aviation Administration, U.S. Department of Defense, any other person owning or leasing communication site facilities at the communication site, and any other person or applicable entities or interested parties who advise the department that they want to receive notification of such applications.

(7) The department may post a notice of an application and opportunity to comment at a local government building, public library, or other appropriate location(s) to ensure that minority and low-income communities are included and aware of a proposed use. The department shall make paper copies of an application available to any person upon request.

(8) After receipt of comments concerning the proposed use, the department will advise the applicant in writing within 30 calendar days from the date the comment period closes of:

(a) If changes in the use or the requested area are necessary to respond to the comments received;

(b) If the proposed use will cause interference with existing uses at the communication site. The applicant must remedy any frequency interference identified, as existing authorized frequencies are senior in right to new requests; the applicant may be required to provide documentation from the Federal Communications Commission verifying the proposed use has been approved by the FCC.

(c) If additional information is required from the applicant, including but not limited to a survey, completed at the applicant's expense, of:

(A) State or federally listed threatened and endangered species (including candidate species) within the requested area; or

(B) Archaeological and historic resources within the requested area;

(d) If the area requested for the lease will be authorized for use by the applicant through a lease; or

(e) Whether the subject area will be made available to the public through competitive bidding pursuant to OAR 141-126-0210.

(9) Upon receipt of updated application information as required by OAR 141-126-0140(8)(a) through (c), an additional comment period may be initiated by the department.

(10) If the department approves the application, no changes are required as a result of the comment period(s), and no public auction is required, the department will notify the applicant in writing within 30 calendar days of the end of the most recent comment period of:

(a) The amount of compensation pursuant to OAR 141-126-0150;

(b) Any insurance or surety bond or other financial instrument required by the department pursuant to the requirements of OAR 141-126-0200; and

(c) A draft copy of the lease.

(11) Upon acceptance by the department of a lease renewal application the department will determine if there is a change in use, size of the leased premises, or frequency.

(a) If the department determines there is a change in use, size of the leased premises, or frequency, the application will be processed as described in OAR 141-126-0140(1) through (10);

(b) If the department determines there is no change in the use, size of the leased premises, or frequency, and the lessee has fully complied with the terms of the lease, applicable statutes, administrative rules, and any other authorization granted to them by the department, the lessee may be eligible for a lease renewal term as conditioned in the lease;

(c) If the department determines the renewal complies with the requirements of OAR 141-126-0140(11)(b), the department shall provide written notice to the lessee that the lease has been renewed for the additional term as stated in the notice. As a condition of renewal, the department shall have the right to require amendment to the terms and conditions of the lease at the time of renewal. If the lease contains a provision requiring that the annual compensation be redetermined upon renewal, the written notice from the department shall include the new annual compensation rate.

(12) A communication site facility lease, even if signed by the department, will not be effective unless and until the applicant has:

(a) Paid all fees and compensation specified in the lease;

(b) Provided evidence of any required insurance, surety bond, or other financial instrument; and

(c) Met all terms and conditions of these rules.

(13) In addition to the provisions of OAR 141-126-0140(10) and (12), a communication site facilities lease issued by the department may not be valid until the lessee has received all other approvals required by the department (such as a removal-fill permit under ORS 196.800 to 196.990) and other applicable local, state, and federal governing bodies to use the communication site in the manner requested, unless otherwise determined by the director.

(14) The director may refer any application to the State Land Board for review and approval.

Or. Admin. Code § 141-126-0140

DSL 7-2024, adopt filed 12/10/2024, effective 12/13/2024

Statutory/Other Authority: ORS 273.045, ORS 273.051(2)(b) & ORS 273.245

Statutes/Other Implemented: OR Const. Art. VIII, Sec. 2 & 5