4 AAC 31.090. Regional school board use permits

(a) The department will issue a use permit to a regional school board that uses, occupies, or requests permission to use or occupy state owned or leased property for a public school, subject to the provisions of this section.

(b) A use permit provides the regional school board with full use and control of the property, subject to

(1) applicable law and other legal standards; and

(2) any restrictions of the underlying state interest in the land.

(1) use the property primarily for public elementary and secondary education purposes; the regional school board may also use the property for other community uses that are not inconsistent with the law and other legal standards and the purpose of the use permit;

(2) upon request, provide to the department access to all records regarding the property and the regional school board's use of the property;

(3) use the property subject to federal and state law and other legal standards regarding ingress, egress, security, and non-school use;

(4) maintain the property in good repair and operating condition, including implementing maintenance and preventive maintenance programs; to the extent provided by law, financing for capital improvement projects remains the responsibility of the state;

(5) permit the department to enter upon and inspect, on the department's behalf, the property at all reasonable times; the duty to inspect and maintain the property remains with the regional school board;

(6) pay all expenses for utilities and other services furnished to the property;

(7) purchase and maintain the following insurance for the property:

(A) workers' compensation coverage as required under AS 23.30;

(B) property loss insurance required under 4 AAC 31.200 - 4 AAC 31.205; the insurance must include the state as an additional insured;

(C) comprehensive general liability insurance in an amount not less than $1,000,000 combined single limit to cover all claims for damages from the regional school board's use and occupation of the property, including any contemplated provision of excess utility under (e) of this section; the insurance must include the state as an additional insured;

(8) comply with 40 C.F.R. 112.3(a) (revised as of January 1, 1996), including preparing and implementing the plan required thereunder; if the property contains a facility that meets a criterion described in 40 C.F.R. 112.20(f)(1) (revised as of January 1, 1996), the regional school board shall comply with 40 C.F.R. 112.21 (revised as of January 1, 1996), including preparing and implementing the plan required thereunder;

(9) indemnify, hold harmless, and defend the state and its officers, employees, and agents from any claim, suit, judgment, or other cost, including attorney's fees and court costs, arising out of the use of occupation of the property including the ownership or use of a hazardous substance on or in connection with the property;

(10) promptly notify the department, in writing and by other means as appropriate, of any significant damage to the property, including damage caused by a hazardous substance; this notice is in addition to other notice requirements imposed by law;

(11) promptly notify the department in writing of any claim, suit, or judgment filed against the regional school board arising out of the regional school board's use or occupation of the property; this notice is in addition to other notice requirements imposed by law;

(12) comply with all applicable federal and state civil rights laws;

(13) refrain from performing any of the following actions without the prior written consent of the department:

(A) assign or transfer a part of the use permit;

(B) transfer possession of, remove, abandon, or dispose of any portion of the property, except as necessary to maintain the property;

(D) install or permit to be installed any structure or infrastructure development; and

(14) deliver possession of the property, including improvements, to the department upon termination of the use permit in the same condition that the property was delivered to the regional school board, except for reasonable wear and tear.

(d) The department shall take all reasonable steps to ensure compliance with this section, including withholding state funds from an REAA under AS 14.07.070 or deducting from an REAA's state aid an amount equal to the amount spent by the department to ensure that the REAA complies with this section. Before taking action under this subsection, the department shall provide the regional school board with 30 days prior written notice so that the regional school board may comply with this section.

(e) A regional school board may provide an excess utility produced by the property, such as electricity, to a third party so long as in so doing the regional school board does not become a public utility subject to regulation under AS 42.05. The regional school board shall collect from the third party an amount sufficient to meet the regional school board's increased expenses for providing the utility. An agreement to provide an excess utility under this subsection must include a provision that terminates the agreement if the use permit for the property is terminated.

(f) The department may modify or terminate a use permit upon

(1) mutual written agreement by the department and the regional school board;

(2) a change in law that prevents either the department or the regional school board from remaining party to the use permit;

(3) a change in the organizational status of the regional school board or the attendance area served by the property that affects the governance of the regional school board or the attendance area, such as would occur if part of the REAA became part of a first class city or borough; or

(4) a determination by the department that reasonable cause exists to modify or terminate the use permit; reasonable cause includes

(A) the regional school board not using the property in the best interests of the residents of the REAA;

(B) the regional school board not using the property primarily for public elementary and secondary purposes;

(D) a change in land ownership status that does not provide sufficient interest or title to support continuation of the use permit;

(E) an imminent and substantial endangerment to the public health, safety, or the environment; and

(F) a request by the regional school board to receive title to the property under AS 14.08.151 (b).

(g) If the department intends to modify or terminate a use permit, the department will send a written notice of its intention to the regional school board. The notice must specify the reasonable cause for the proposed modification or termination.

(h) A decision by the department to modify or terminate a use permit does not relieve the regional school board of its responsibilities or liabilities arising out of its use or operation of the property during the period before the modification or termination of the use permit, including the responsibility to defend, indemnify, and hold harmless certain parties under (c)(9) of this section.

(i) Upon issuance of a use permit under this section, the commissioner shall take all steps necessary to terminate a use permit issued to a regional school board before the effective date of this section. The commissioner's actions must be consistent with the terms of the use permit and all applicable law.

(j) As used in this section

(1) "commissioner" means the commissioner of education and early development or the commissioner's designee;

(2) "department" means the Department of Education and Early Development;

(3) "hazardous substance" has the meaning given the term in AS 46.03.826 ;

(4) "property" means

(A) land and facilities named or described in the use permit;

(B) land and facilities owned or leased by the state and used or occupied by an REAA; and,

(C) if not described with specificity, state owned or leased land and facilities surrounding or adjacent to an REAA school facility that would reasonably be expected to be identified as supporting the school facility, including playground space and storage space;

(5) "REAA" means a regional educational attendance area established under AS 14.08.031 ;

(6) "regional school board" means a regional school board described in AS 14.08.041 ;

(7) "use permit" means a use permit given to a regional school board under this section.

History: Eff. 5/21/97, Register 142; am 4/17/98, Register 146; am 12/19/2002, Register 164

Authority: AS 14.07.020

AS 14.07.060

AS 14.07.070

AS 14.08.151

Editor's note: As of Register 151 (October 1999), the regulations attorney made technical revisions under AS 44.62.125 (b)(6) to reflect the name change of the Department of Education to the Department of Education and Early Development made by ch. 58, SLA 1999, and the corresponding title change of the commissioner of education.

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