GA Code § 12-5-287 (2021)
2021 Georgia Code|Title 12 - Conservation and Natural Resources|Chapter 5 - Water Resources|Article 4 - Coastal Waters, Beaches, and Sand Dunes|Part 4 - Coastal Marshlands|§ 12-5-287. Leasing of State Owned Marshland or Water Bottoms

  The committee, acting for and on behalf of and in the name of the state, is further authorized and empowered to grant and convey to any eligible person a lease of state owned marshland or water bottoms, or a combination thereof, upon such terms and conditions as the committee deems advisable for the purpose of constructing, operating, and maintaining thereupon a marina or marinas or dock providing more than 500 linear feet of dock space, including the installing, maintaining, repairing, removing, and replacing of buildings, structures, piers, docks, floating docks, marine railways, dolphins, pilings, appurtenances thereto, and all facilities and improvements that shall be reasonably used for or in connection therewith, subject always to the initial and continuing compliance by the lessee with all applicable laws pertaining to the use of the leased property and subject always to the use and enjoyment of the public of any navigable waters upon or over the leased property. The applicant for any such lease shall inform the committee of the total linear footage of dock space proposed, but the final decision as to the total dock space available to moor boats shall be in the sound discretion of the committee.   Upon application by any interested person for a lease pursuant to this Code section, the committee shall determine whether or not the applicant is an eligible person. The committee must also determine whether or not the applicant has sufficient lands properly to service the area to be leased. If the committee determines that the applicant is an eligible person and that sufficient lands exist to service the marina or dock, then the committee is authorized to grant and convey to the applicant a lease of the state owned marshland or water bottoms, or a combination thereof, described in the application without the necessity of public bid.   The application for the lease shall be in writing and shall contain a request for a lease of the state owned property described therein. Such application shall include all of the information required for a permit under this part. The entire application must be in a form acceptable to the committee.   Each lease granted under this Code section shall be upon such provisions, requirements, and conditions as the committee shall make and shall, except as provided in subsection (h) of this Code section, provide for a primary term of not more than ten years. Each lease, except as provided in subsection (h) of this Code section, shall require the payment of an annual rental fee which, as of May 5, 2009, shall be $1,000.00 per acre, which acreage shall consist of the covered area of dock structures and a ten-foot buffer surrounding such dock structures; and the committee shall in each calendar year thereafter adjust the amount of the annual rental fee per acre to reflect the effect of annual inflation or deflation for the immediately preceding calendar year in accordance with rules and regulations adopted by the board, which rules and regulations may use for this purpose the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor or any other similar index established by the federal government, if the board determines that such federal index reflects the effect of inflation and deflation on the lessees. Except as provided in subsection (h) of this Code section, an initial lease shall be for the annual fee in effect and established by the committee at the time such lease is entered into. Such lease shall be adjusted annually thereafter as provided in this subsection. Each lease may provide for two renewal terms, each of which shall not be for a term of more than equal duration to the primary term. Rental fees shall be paid in one installment to the department not later than July 15 of each year. A penalty of 10 percent of the annual rental shall be assessed for late payment. Failure to pay rental by August 1 of the year due shall result in the cancellation of the lease.   Each lease granted under this Code section shall protect the interest of owners of marshland and high land adjoining the high land of the lessee upon which the lessee's eligibility for lease was based to a right of access to the state owned marshland or water bottoms adjoining the state owned marshland or water bottoms leased to the applicant; provided, however, said owners of adjoining high land may assign their rights in writing in favor of the applicant and such written assignment may be used to determine the percentage of landward boundary required for eligibility to lease the state owned marshland and water bottoms described in the application.   If the eligible person desires the ability to transfer or convey ownership interests in the leasehold to individuals purchasing or leasing on a long-term basis the slips of the marina or marinas, each lease granted under this Code section shall require the formation of a condominium pursuant to Code Section 44-3-72.   Reserved.   Upon application of any eligible person who is either a nonprofit corporation, a nonprofit organization, or a public entity, the committee may grant a lease of state owned marshland or water bottoms for the construction and operation of a marina as a community or public dock. Each lease granted under this subsection shall be for a term of ten years from the date of its execution with a nominal rental of $1.00 for the entire term.   The department shall make an annual report of its activities each calendar year to the General Assembly. The report shall include a summary of all applications received and leases granted, including length of terms, rentals, and locations. Copies of the annual report shall be provided to the director of the State Properties Commission, the chairperson of the House Natural Resources and Environment Committee, the chairperson of the House Committee on State Properties, the chairperson of the Senate Natural Resources and the Environment Committee, and the chairperson of the Senate Committee on State and Local Governmental Operations.The department shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the annual report in the manner which it deems to be most effective and efficient.   The committee may place such terms, limitations, restrictions, and conditions in such leases as are deemed necessary to ensure that the utilization of the property is in the public interest. Leased areas shall be deemed to be areas where resources are managed by the state and lessee for the protection of wildlife and other natural resources.   The committee may designate staff of the department to act on its behalf to evaluate, enforce, and execute leases issued under this part.   A lease granted under this part shall be issued only to applicants who agree not to discriminate against any person on the basis of race, gender, color, national origin, religion, or disability. Discrimination by lessee may be punished by termination of the lease, by injunction, or by any other legal remedy available to the committee.     (Code 1981, §12-5-285.1, enacted by Ga. L. 1989, p. 574, § 3; Code 1981, §12-5-287, as redesignated by Ga. L. 1992, p. 2294, § 1; Ga. L. 1995, p. 10, § 12; Ga. L. 1995, p. 462, § 1; Ga. L. 2005, p. 1036, § 6/SB 49; Ga. L. 2006, p. 72, § 12/SB 465; Ga. L. 2009, p. 778, § 1/HB 170; Ga. L. 2013, p. 141, § 12/HB 79; Ga. L. 2015, p. 385, § 2-4/HB 252.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2009, "May 5, 2009" was substituted for "the effective date of this subsection" in the second sentence of subsection (d).   Editor's notes.   - Ga. L. 2009, p. 778, § 3/HB 170, not codified by the General Assembly, provides that the amendment to this Code section shall not be applied to impair an obligation of contract entered into prior to May 5, 2009.   JUDICIAL DECISIONS   Standing to challenge lease.    - As landowners had a property interest in the water fronting the landowners property, which O.C.G.A. § 12-5-287(e) protected, and the landowners showed that this interest was being harmed by the operation of a marina in front of the landowners property, the landowners had standing to sue the marina operator and to challenge the validity of the marina's water bottom lease. DBL, Inc. v. Carson, 262 Ga. App. 252, 585 S.E.2d 87 (2003).   Eligibility to apply for water bottom lease.    - Having a lease on upland property can satisfy the ownership component of being an "eligible person" for a water bottom lease under O.C.G.A. § 12-5-287; the upland lease here, however, could not be construed as a written assignment of rights to the water bottom or as permission to apply for the water bottom lease under O.C.G.A. § 12-5-286(b)(4). DBL, Inc. v. Carson, 284 Ga. App. 898, 645 S.E.2d 56, cert. denied, No. S07C1191, 2007 Ga. LEXIS 566 (2007).