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The Arizona Preserve Initiative (API) is a new tool available to the Arizona State Land Department that will ultimately allow for the long term lease or sale of state trust lands for conservation purposes. The API is constructed to provide for the conservation use of the land while still meeting the fiduciary responsibility to the beneficiaries of the land trust. Eligible lands are defined as those within proximity to the state's incorporated communities, therefore encompassing the urban areas of the state.
Background - State Trust Land Management
The Arizona State Land Department manages 9.4 million acres of state trust land on behalf of the fourteen beneficiaries of the trust. These lands were granted at statehood by the federal government with a number of provisos as to how they were to be managed and disposed. The largest of these beneficiaries are Arizona's common schools, grades K-12. The department's mission, therefore, is to manage the land to produce the highest revenue yield for the beneficiaries over the long term. Historically, this has been accomplished through leases for resource productive users, rights of way and short term commercial leases. Over the last fifteen years, urban scale development that was planned, zoned, and leased or sold under the Urban Lands Act has accounted for a huge increase in the monies raised to benefit the trust.
Monies from land sales or royalties are directed to a permanent fund, and the interest therefrom is distributed to the beneficiaries. Monies generated from leases and similar activities are distributed to the beneficiaries directly. The permanent fund at the end of the last fiscal year (June 30, 1997) stood at just less than $821 million. This is the largest permanent fund in the western states except for those sates with significant oil and gas or coal revenues. During the year, the Department earned $72.6 million from lease, sale and other activity on the Trust lands. Interest from the permanent fund totaled just under $58 million, for a total income in fiscal year 1997 of $130.5 million.
It is a common misconception that state Trust lands are public lands; they are not. Access may only be by lease or some other form of specific permission from the Department. This may take the form of a hunting or fishing license (which does not allow access other than for that purpose), or a recreation permit which may be purchased from the Department. top
With the rapid urbanization of Arizona's major metropolitan areas and some of its smaller cities, the perception that open spaces are disappearing to development has been a growing concern. Where state Trust lands are one of the primary players in accommodating growth in a region, there has been no ability to create open space lands outside that provided as part of an urban development plan, a straight sale at competitive auction, or a short term lease to local or state government. Open space is not the sole concern, however. A significant archaeologic feature, a unique or special place such as a perennial stream in the desert, or even a ranch that is being encroached upon by the urban entity may also be in need of preservation above and beyond what the existing tools could accommodate. In general, the lack of land exchange authority has exacerbated the problem of getting sensitive lands into the hands of an entity whose mission is land preservation in perpetuity.
Out of these concerns and issues, the Arizona Preserve Initiative was born. top
The challenge for the creators of the Arizona Preserve Initiative (AIP) was to develop a program that would allow for the conservation of state Trust lands within the context of very restrictive federal Enabling Act provisions, state Constitutional issues and subsequent case law governing the purpose and disposition of the lands.
The AIP was ultimately passed by the Arizona State Legislature as HB 2555 and signed into law by the Governor in the spring of 1996, and amended the next year under HB 2303. The program was originally conceived as a statewide approach that could be beneficial for environmentally sensitive trust lands in both urban and rural areas. It would have included preservation of ranches and farms, addressed national park and preserve inholdings and additions, as well as providing for additional open space in developing communities. Concern among some lawmakers representing areas with natural resource-based economies and their constituents dictated its more limited application to areas in and around incorporated communities.
As adopted, the API is designed to encourage the preservation of select parcels of state Trust land in and around urban areas for open space to benefit future generations. The law lays out a process by which Trust land can be leased for up to 50 years or sold for conservation purposes. Leases and sales must both occur at a public auction. top
Conservation is defined in the law as "protection of the natural assets of state Trust land for the long-term benefit of the land, the beneficiaries, lessees, the public, and unique resources such as open space, scenic beauty, protected plants, wildlife, archaeology, and multiple use values". The 1996 legislation permitted Trust land to be reclassified for conservation purposes if located within incorporated cities and towns, within one mile of incorporated municipalities of less than 10,000 persons, or within three miles of municipalities equal to or greater than 10,00 persons. The 1997 amendments expanded the applicable area in Maricopa County (Phoenix area), and eventually Pima County (Tucson area), up to an additional ten miles beyond these boundaries and specifically add lands in Pinal County adjacent to the Superstition Mountains (near the Phoenix metro area) and the Tortolita Mountains (north of Tucson) as eligible for conservation consideration.
A state or local government, business, state land lessee or a group of citizens may petition the State Land Commissioner to have certain Trust land nominated and reclassified for conservation purposes. After all appropriate notifications, public hearings, consideration of physical and economic impacts to lessees and the Trust, the Commissioner may reclassify the subject land as suitable for conservation purposes. The Commissioner must consider recommendations from a five-member Conservation Advisory Committee that was established by law, as well as consult with local and regional planning authorities. Existing leases on any land reclassified for conservation purposes may not be canceled or impaired in any way. top
Once the land is reclassified, the Commissioner must adopt a plan for the property to protect conservation values. The statute authorizes the Commissioner the option to withdraw land from sale or lease for three to five years (with the possible extension for up to three more years) to allow prospective lessees or purchasers time to prepare the plan for the property and to raise funds.
With two independent appraisals of the fair market value and required legal notice, a conservation lease or sale must go to public auction. The land value cannot be reduced because of the conservation purpose.
If an existing lease is not renewed because a conservation lease is issued, the former lessee must receive compensation for the loss of lease and reimbursable improvements. If the land is sold for conservation purposes, the lease must be allowed to continue to the end of its term. If that lease were to be modified or canceled by the new owner, the law provides for compensation by the new owner to the lessee. top
HB 2303, among other provisions, added a public-private matching grant program under the State Parks Board for acquisition or lease of state Trust lands for conservation, and tied the program more closely into the Urban Lands Act. The Urban Lands Act, originally passed in the early 1980's, allows the Department to work with developers and local jurisdictions to plan, zone, and lease or sell parcels for urban scale development. top
As of this writing, there have been nine petitions filed for reclassification of Trust lands: six in Maricopa County and one each in Pinal County, Pima County, and Yavapai County.
Preapplication meetings have been held that will likely result in petitions filed for several properties in Maricopa County and Pima County in the near future. (Pima County voters passed an open space bond last spring, which identified a number of parcels of Trust land for possible acquisition.)
One property, Tumamoc Hill within the City of Tucson, has been reclassified as suitable for conservation.
Three petitioned areas have been nominated by the Commissioner for consideration and are being processed by the Department currently. top
| Project | Status |
|---|---|
| Pima County - Tumamoc Hill | Land reclassified as suitable for conservation |
| City of Scottsdale - McDowell Mountains | Public hearing held 8/6/97 Conservation Advisory Committee scheduled 9/30/97 |
| Desert Foothills Land Trust - Cave Creek | Public hearing held 9/11/97 Conservation Advisory Committee scheduled 9/30/97 |
| Superstition Mountains, LLC - Hog Canyon | Public hearing held 8/14/97 Conservation Advisory Committee scheduled 9/30/97 |
| City of Phoenix - North Phoenix properties | Petition received; on hold awaiting additional city analysis |
| City of Fountain Hills et al - McDowell Park Area | Awaiting formal ASLD staff comments |
| Goldie Brown Ltd Partnership - North Scottsdale | Petition received; no action to date |
| Desert Foothills Land Trust - Go John Canyon | Petition received; no action to date |
| Prescott/Prescott Valley - Glassford Hill | Petition received; no action to date |
One of the rationales in support of the API was the need to get some visual relief from a sea of red tiled roofs. There are lots of planning and design tools available to try and accomplish that goal. The API, insofar as it applies to state Trust lands in urban areas, could be one of those tools. Combined with the Urban Lands Act, it has the potential of being a fairly powerful tool.
But is the API really a growth management tool or a mechanism that can be used to shape the urban form? top
Strategies in Growth Management Planning
For purposes of this discussion, growth management is defined simplistically as a set of locally or regionally adopted policies and laws directing the timing and/or location of future development in an area such that the city or regional spatial form and land use pattern is altered.
The API was not conceived of as a growth management instrument by its framers, and though it isn't one, it could play a limited, minor role. Some supporters may have thought of it as a way to limit growth in booming areas with high concentrations of urban Trust land. While possible, it is not probable because the land must have one or more conservation values, the appraised value of the land must be a fair market value that does not take into consideration the conservation use(s), and this land is likely to have a significant cost associated with it. Further, the litmus test for application of the API as well as any other short or long term use or proposed sale of state Trust land is whether the action is in the best interest of the Trust and its beneficiaries. This consideration may or may not be consistent with a community's desires to implement a growth management scheme. top
During the creation of the API, potential opponents were less concerned that it was anti-growth, though this argument was made, and it needed a response on more than one occasion. The largest anxiety that the API raised was that it would conflict with existing resource productive uses on the land. In effect, it was an anti-use mechanism.
In reality, with a few regional exceptions, a land ownership pattern does not exist such that preserving appropriate state land alone can control growth through an urban growth boundary line. One might try to define a land use pattern based on a perceived ability to protect sensitive Trust and other lands. However, it would be in error to treat state Trust lands as one's greenbelt merely because the lands are not privately owned. If the land was public without the responsibility for management for the schools and other beneficiaries, it might be another story. top
The API, however, does provide an alternative to development while still making money for the Trust beneficiaries. Also, when combined in the future with development planned under the Urban Lands Act, it might be possible to provide a greater percentage of open space in a contiguous manner, than might have otherwise been possible. Even so, this is not going to limit, time or direct growth.
All this said, however, it would be expected and probably appropriate that the API would appear on a list of implementation tools in the growth management plans of appropriate jurisdictions. To that end, it should be considered as a supportive device and not be relied upon for primary execution of the plan. top
Strategies for Open Space Planning
While the API may be a minor or poor choice for taming urban sprawl, it can shine as an open space planning and management agent, at least where there is state Trust land with conservation values.
The API process can be used to identify key natural features or cultural resources and preserve them either for public access or to protect them from encroachment as the case may be. This is the prime intent of the legislation, and obviously includes community landmarks, riparian areas, significant peaks and ridges, as examples. While individual trails crossing Trust land may be best handled through the means of a right-of-way, certainly trail corridors within larger open space could be created through the API.
Land management and stewardship issues can be addressed by the API, first by ensuring that sensitive lands get into the hands of those entities that have land preservation or park management as their primary mission. The API can also be used in certain instances to eliminate state inholdings in existing parks, at least those within proximity to existing cities and towns. top
Features of the API process itself can assist in building a community's open space system. While the reclassification process identifies properties as suitable for conservation, the optional withdrawal period allows for a reasonable amount of time to raise funds for acquisition giving greater certainty that the lands can be successfully protected. That same withdrawal period requires a management plan for the plan to be done, in concert with existing lessees, which could be a sub-part of overall community efforts at open space master planning.
The sale or lease process itself can also help provide more certainty in the process. Now there is an alternative to a straight sale for whatever use the buyer wishes to make of the land. State Trust lands can be specifically deed restricted as part of the auction process for a purchase. This not only has bearing on the sale itself; it also may provide more permanence than local zoning might otherwise achieve. The ability to auction off and execute a 50-year lease for conservation purposes may provide an affordable way to preserve these key parcels while still guaranteeing the state land Trust a good rate of return and not encumbering the land asset with expensive improvements. top
Finally, in those communities where this is a concern, the API allows for the preservation of open space while continuing to support local resource productive economy such as grazing. This may be less of an issue in major metropolitan areas, but can be vital in and around smaller Arizona towns that are significantly dependent on these resources. top
Discussing this issue in a session titled "What Works" is perhaps premature. It isn't really known whether the API works yet and what about it may not work so well. What the API represents is a new opportunity to preserve environmentally and culturally significant lands. Where there is a secure money supply, it is likely that lands will be conserved, but the process is going to take a while. Examples include the City of Scottsdale and Pima County, both of which have had taxpayers agree at the ballot box to pay for land acquisitions.
AIP can be used to preserve open space, viewsheds, trails, natural parklands, perhaps even portions of ranches if the interest was there. It won't create soccer and baseball fields, it won't by itself limit, restrict or otherwise stop development in a growth management schema.
The program can work for the Land Department because it gives the agency another tool to make some money for the Trust beneficiaries. The next ten years should give Arizonans a reasonable indication of whether the API will do what its framers set out to do: conservation of the gems of state Trust land, at least in the growing urban centers of the state. top
Additional information on the API and the State Land Department in general can be found on the Internet at the following address: http://www.land.state.az.us/