Section 17.45.210. Consideration of application for a lease, permit, concession, material amendment, or other interest subject to competition.

	(a)  This section applies to an application for a lease, permit, concession, material amendment, or other interest submitted under 17 AAC 45.205, except an application for a land lease that the department has determined under 17 AAC 45.215(b) is eligible for consideration without competition under AS 02.15.090(c). The department may determine under 17 AAC 45.300(a) or under (g) of this section that a lease, permit, concession, or other interest for which an applicant has applied under this section will be awarded by competitive means under 17 AAC 45.300 - 17 AAC 45.399.  
	(b)  The department will review the application and will determine whether it is approvable, subject to public notice and comment under 17 AAC 45.400. An application is approvable under this subsection unless  
		(1) the proposed use is prohibited by or inconsistent with  
			(A) the state's obligations under a covenant running with the airport land;  
			(B) an exclusive right, consistent with FAA requirements, granted by the department to another person;  
			(C) sound airport planning or considerations of security, safety, maintenance, or operation of the airport;  
			(D) the applicable provisions of this chapter and of any other statute or regulation, including any relating to noise or airport land use; or  
			(E) any applicable FAA grant assurance incorporated by reference under 17 AAC 45.010(e) or any written plan or program required for compliance with applicable state or federal law;  
		(2) the proposed use would be inconsistent with the best interest of the state;  
		(3) the department has already issued final approval of an application submitted under 17 AAC 45.215 for the same land, and the time under (i) of this section or 17 AAC 45.215(j), as applicable, for execution of a lease, permit, or concession has not expired;  
		(4) the department has received an approvable application that has a proposed use of higher priority as determined under (e) of this section;  
		(5) the applicant fails to establish financial responsibility acceptable to the department; or  
		(6) approval must be denied under 17 AAC 45.010(g).  
	(c)  If the department determines that an application is approvable, subject to public notice and comment under 17 AAC 45.400, and the department has not received another approvable application to put the same land, space, or interest to a use of the same or higher priority as provided in (e) of this section, the department will provide public notice of the application in accordance with 17 AAC 45.400 and this section. The department will include in a notice under this section a request for competing applications, except with respect to an application for a term extension or change in authorized use of a lease, permit, or concession with a year or more of term remaining.  If the department requires newspaper publication of the notice under 17 AAC 45.400, the applicant shall pay the cost of publication, unless the applicant is exempt from the payment under federal law or the terms of a grant to the department.  
	(d)  After the public comment period set in the notice given under (c) of this section, including any extension of that period, has closed, the department will consider any public comment or objection, or application for the same property or interest, that the department received in writing before the close of the public comment period and all facts known to the department, but not any public comment or objection received after the close of the public comment period.  The department will review any other application for the same property or interest that the department received before the close of the public comment period to determine whether any other application is approvable under (b) of this section or under 17 AAC 45.215(b).  The department will determine whether the noticed application remains approvable under (b) of this section in light of all facts known to the department.  The department will either:  
		(1) send notice of the department's intent to execute a lease, permit, concession, material amendment, or other interest to the applicant and to any person from whom the department received within the public comment period, written comment or objection, or other application for the same property or interest, and who provided a return address;  
		(2) if the department received no written comment or objection, or other application during the comment period, enter into a lease, permit, concession, material amendment, or other interest with the applicant; or  
		(3) send notice of the department's intent not to execute the lease, permit, concession, material amendment, or other interest to the applicant, and to any person from whom the department received written comment or objection, or other application for the property or interest, within the comment period and who provided a return address, along with a written decision showing that  
			(A) the department received, within the public comment period, at least one other approvable competing application of the same or higher priority class of use determined under (e) of this section;  
			(B) the department will award the property or interest by competitive means, either under (g) of this section or for a reason set out in 17 AAC 45.300(a); or  
			(C) the application should be denied for any other reason required or allowed under this chapter.  
	(e)  If the department timely receives two or more approvable applications submitted under 17 AAC 45.205 for different classes of use of the same or overlapping property or interest, the conflict is not mutually resolved by the applicants, and no application qualifies for consideration without competition under 17 AAC 45.215, the department will determine which application to present for public notice under (c) of this section according to the following priority order among classes of use, to the extent not inconsistent with sound airport planning at the airport in question:  
		(1) an aeronautical use;  
		(2) a non-aeronautical use.  
	(f)  The department will execute a lease, permit, concession, or other interest for a combination of two or more classes of use if the department determines that the combination of uses is in the best interest of the state.  
	(g)  If, either before providing public notice under (c) of this section regarding an application for a property or interest or by the date set in that notice, the department has received more than one application to put the same property or interest to a use of the same priority as provided in (e) of this section and which is also subject to and approvable under (b) of this section, the department will send to each applicant and to each person who submitted a written comment or objection during any comment period and who provided a return address, notice of the department's intent to award the property or interest by competitive means under 17 AAC 45.300 - 17 AAC 45.399.  
	(h)  The department may mail or deliver to the applicant a proposed lease, permit, concession, material amendment, or other document form for the interest determined to be approvable under (b) of this section.  After final approval under (d) of this section, the department will mail or deliver to the applicant a final lease, permit, concession, or other document form for the interest approved unless the final document form is unchanged from a proposed form the department previously mailed or delivered to the applicant. If the applicant does not sign and mail or deliver the final form lease, permit, concession, or other document form back to the department within 30 days after the later of the date that the department mails or delivers the form to the applicant or the date of the close of the public comment period, the department will not enter into the lease, permit, concession, or other interest and will so notify the applicant in writing. The department may extend the response time provided under this subsection for good cause shown.  To request an extension, the applicant must submit to the department a written request for extension stating the reasons for the request.  
	(i)  The department may execute a lease, permit, concession, or other interest  
		(1) no earlier than  
			(A) the day after the date set for submission of public comment, objection, or competing application if the department receives none; or  
			(B) if the department receives timely written comment, objection, or competing application in response to the notice under (c) of this section, eight days after the mailing of the notice of intent to execute the lease, permit, concession, or other interest under this section; and  
		(2) no later than 270 days after the date set in the notice given under (c) of this section for submission of public comment, objection, or competing application; the department may extend the period for execution by a total of no more than 90 additional days upon a showing by the applicant that either the applicant had fulfilled all requirements for the department's execution before the one year period expired or any failure of the applicant to do so was caused by factors beyond the applicant's control.  
	(j)  The department will state in writing any decision to deny an application or request for an extension under this section, including the reasons for the denial. An applicant may protest the denial of an application or the denial of a request for an extension in accordance with 17 AAC 45.910.  
	(k)  If the department determines that a competing application received during a comment period in response to a public notice under this section is not approvable, the department will consider the denied application as an objection to execution of the advertised interest.  

Authorities

02.15.020;02.15.060;02.15.090;02.15.210;37.15.470;37.15.540

Notes

Reference

17 AAC 45.215
17 AAC 45.900
17 AAC 45.910
17 AAC 45.920

Authority

AS 02.15.020 AS 02.15.060 AS 02.15.090 AS 02.15.210 AS 37.15.470 AS 37.15.540

History

Eff. 3/28/2002, Register 161; am 3/22/2008, Register 185; am 3/20/2016, Register 217