17 AAC 45.215 - Consideration of application for a land lease or a term extension of a land lease without competition

(a) This section applies only to an application for a land lease, or a term extension of a land lease, that is eligible for consideration without competition under AS 02.15.090(c) because the applicant

(1) is a lessee under and the application relates to a land lease that either has not expired or is in holdover; and

(2) is applying for the same land and substantially the same use as stated in the existing lease.

(b) The department will review an application to which this section applies to determine whether the application is eligible under the standards stated in (a) of this section for consideration under AS 02.15.090(c) and whether the application is approvable, subject to public notice and comment under 17 AAC 45.400. The application is approvable, subject to public notice and comment under 17 AAC 45.400, if

(1) denial of the application is not required under 17 AAC 45.010(g);

(2) the continued use by the applicant is not inconsistent with written airport operation policies, including

(A) an exclusive right, consistent with FAA requirements, granted by the department in writing to another person;

(B) documents relating to sound airport planning or considerations of security, safety, maintenance, or operation of the airport;

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

(D) any applicable FAA grant assurance incorporated by reference under 17 AAC 45.010(e);

(E) any written plan or program required for compliance with applicable state or federal law;

(F) the state's obligations under a covenant running with airport land; and

(G) operational orders the department issues under 17 AAC 45.010(a) or under any other state or federal law; and

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

(c) If the department determines that an application is approvable, subject to public notice and comment under 17 AAC 45.400, the department will provide public notice of the application in accordance with 17 AAC 45.400 and this section. In addition to the information required under 17 AAC 45.400(e), the department will include in the notice a statement that the application appears to be eligible under (a) of this section for consideration without competition under AS 02.15.090(c). 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, including another application for the same land considered as an objection under (n) of this section, 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.

(e) The department will consider the existence of a competing application or the potential for gaining increased revenue for the department in determining the best interest of the state regarding an application under this section. If increased revenue for the department is a factor upon which the department determines that it is in the best interest of the state to offer the lease competitively, the department will use the procedures under 17 AAC 45.303 to offer the lease competitively. After opening all bids under 17 AAC 45.315, the department will approve the application of the existing lessee if the existing lessee agrees to meet the highest revenue amount bid by any other person, but not less than the applicable rental rate under 17 AAC 45.127.

(f) Based on consideration of public comment or objection under (d) of this section, the department will either

(1) confirm in writing that the applicant satisfies the standards described in (a) of this section and that the application satisfies each consideration described in (b) of this section; or

(2) state in writing each standard described in (a) of this section and each consideration described in (b) of this section that the applicant or application does not satisfy and send to the applicant, and to each person who submitted a written comment or objection during any comment period and who provided a return address, written notice of the department's intent to deny the application, to consider the application under 17 AAC 45.210, or to make the lease lot available for lease by competitive means under 17 AAC 45.300 - 17 AAC 45.399.

(g) If under (f)(1) of this section the department confirms in writing that the applicant satisfies the standards and considerations described in (a) and (b) of this section, and if the department has received written comment or objection, or another application during the comment period, then the department will send to the applicant and to each person who submitted a timely written comment or objection or other application and who provided a return address, notice of the department's intent to execute a new land lease with the applicant or a term extension to the applicant's existing land lease.

(h) If under (f)(1) of this section the department confirms in writing that the applicant satisfies the standards described in (a) of this section and that the application satisfies each consideration described in (b) of this section, and if the department has received no written comment or objection, or other application during the comment period, then the department will enter into a new land lease with the applicant or a term extension to the applicant's existing land lease.

(i) The department may mail or deliver a proposed lease or a lease supplement or material amendment to the applicant when an application is determined to be approvable under (b) of this section. After final approval under (f)(1) 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. The applicant shall sign and mail or deliver the final form lease, lease supplement, or amendment back to the department within 30 days after the later of

(1) the date that the department mails or delivers the final form to the applicant;

(2) the date that the department notifies the applicant that approval of the application is final after consideration of written comment or objection or other application; or

(3) the close of the public comment period.

(j) The department may extend the response time provided under (i) of this section for good cause shown. To request an extension, the applicant must submit to the department, before expiration of the response time, a written request for extension stating the reasons for the request.

(k) The department may execute a lease, lease supplement, or amendment under this section only

(1) no later than 270 days after the date set for submission of public comment or objection in the notice given under (c) of this section; 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 expired or any failure of the applicant to do so was caused by factors beyond the applicant's control; and

(2) no earlier than

(A) the day after the date set for submission of public comment or objection if the department receives none; or

(B) if the department receives a timely comment or objection in response to the notice under (c) of this section, eight days after the mailing of a notice of intent to execute under this section.

(l) 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.

(m) This section does not apply to a permit, concession, or building lease.

(n) The department will consider any competing application for use of all or a portion of the same land that the department receives during a comment period in response to a public notice under (c) of this section as an objection to execution of the advertised interest. However, if the application being presented for public comment is for a successive lease or a term extension of a lease with less than one year of term remaining, and the department does not determine that it is in the best interest of the state to execute the successive lease or term extension without offering the interest to other persons, the department will process a competing application under 17 AAC 45.210.

Notes

17 AAC 45.215

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

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