17 AAC 42.215. Consideration of application for lease, permit, concession, material amendment, or other interest

(a) The airport manager shall review an application for a lease, permit, concession, material amendment, or other interest submitted under 17 AAC 42.040 or 17 AAC 42.210 and determine whether the application is approvable subject to public notice and comment under 17 AAC 42.400.

(b) An application that does not qualify for consideration without competition under 17 AAC 42.205(b) is approvable subject to public notice and comment under 17 AAC 42.400, unless

(1) the proposed use is prohibited by or inconsistent with

(A) the state's obligations under revenue bonds issued under AS 37.15.410 - 37.15.550 or a covenant running with the airport land;

(B) an exclusive right granted by the department to another person;

(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 42.010(d) ;

(2) the proposed use would be inconsistent with the best interest of the state;

(3) the airport manager has already approved an application for the same land under AS 02.15.090 (c);

(4) the airport manager has received an approvable application that has a proposed use of higher priority as determined under (g) or (h) of this section;

(5) the applicant fails to establish financial responsibility acceptable to the airport manager; or

(6) approval must be denied under 17 AAC 42.010(g) .

(c) An application for a land lease or material amendment to a land lease that qualifies for consideration without competition under 17 AAC 42.205(b) is approvable subject to public notice and comment under 17 AAC 42.400 if

(1) the applicant is in compliance with the terms and conditions of the applicant's current or holdover lease so that denial of the application is not required under 17 AAC 42.010(g) ;

(2) the continued use is consistent with

(A) the state's obligations under revenue bonds issued under AS 37.15.410 - 37.15.550 or a covenant running with the airport land;

(B) an exclusive right granted by the department to another person;

(D) the applicable provisions of this chapter and of any other statute or regulation, including any relating to noise or airport land use; and

(E) any applicable FAA grant assurance incorporated by reference under 17 AAC 42.010 and any written plan or program required for compliance with applicable state or federal law; and

(3) the continued use is in the best interest of the state.

(d) If the airport manager determines that an application is approvable, subject to public notice and comment under 17 AAC 42.400, the manager shall give notice of the application to the public in accordance with 17 AAC 42.400. The notice must include

(1) the applicant's name;

(2) the general terms of the proposed lease, permit, concession, material amendment, or other interest including the proposed rent, fees, term, property description or location, and authorized uses;

(3) the airport manager's mailing address for submitting comment on the application or for submitting a competing application under 17 AAC 42.210;

(4) the date by which the manager must receive all public comment and any competing application; and

(5) a request for competing applications, unless the application qualifies for consideration without competition under 17 AAC 42.205(b) and has been determined to be approvable under (c) of this section, in which case the notice shall so state and shall not request competing applications.

(e) After the public comment period established under (d) of this section has closed, the airport manager shall

(1) consider only public comments that the manager received before the close of the public comment period;

(2) review any competing applications that the manager received before the close of the public comment period to determine whether any such application is approvable under (b) or (c) of this section;

(3) determine whether the application remains approvable under (b) or (c) of this section, as applicable; and

(4) enter into a lease, permit, concession, material amendment, or other interest with the applicant unless the manager determines in writing that

(A) the application should be denied under this chapter;

(B) the manager timely received at least one other approvable competing application of the same or higher priority class of use determined under (g) or (h) of this section; or

(f) For an aviation use application that qualifies for consideration without competition under 17 AAC 42.205(b) , the manager may not rely on either the existence of a competing application or the potential for gaining increased revenue for the department, whether alone or combined, as the sole reason for denying an existing land lessee's application for a new land lease or lease term extension under AS 02.15.090 (c).

(g) Subject to (b) of this section and to a designation of space for one or more uses under 17 AAC 42.020(c) , the manager shall award a lease between competing applications for the same space in a department-operated terminal building according to the following priority order:

(1) from a holder of an agreement entered into under 17 AAC 42.040(a) ;

(2) from a holder of an agreement entered into under 17 AAC 42.040(b) ;

(3) from a holder of an airport concession;

(4) any other applicant.

(h) Except for an application for space in a department-operated terminal building, if the airport manager timely receives one or more approvable competing applications submitted under 17 AAC 42.210 for the same property or interest but for different classes of use and none qualify for consideration without competition under 17 AAC 42.205(b) , the manager shall award the requested lease, permit, concession, material amendment, or other interest according to the following priority order:

(1) for an aviation use;

(2) for an auxiliary use;

(3) for a nonaviation use.

(i) The airport manager shall award a lease, permit, concession, material amendment, or other interest for a combination of two or more classes of use if the manager determines that the combination of uses is in the best interest of the state.

(j) The airport manager shall mail or deliver to the successful applicant a lease, permit, concession, or other document form for the interest awarded under (e) of this section. If the applicant does not, within 60 days after the date the manager mails or delivers it to the applicant, sign and mail or deliver the lease, permit, concession, or other document form back to the airport manager, the manager shall not enter into the lease, permit, concession, or other interest and shall so notify the applicant in writing. The manager may extend the response time provided under this subsection for good cause shown. To request an extension, the applicant must submit to the manager a written request for extension stating the reasons for the request.

(k) The airport manager may not execute a lease, permit, concession, or other interest earlier than the day after the date set for submission of public comment or competing applications under (d) of this section or later than one year after that date.

(l) The airport manager shall 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 42.910.

History: Eff. 1/14/2001, Register 157

Authority: AS 02.15.020

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