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Arizona Preserve Initiative
Wyomings Agricultural Land and Open Spaces Initiative
Utah Critical Lands Conservation Committee

Arizona Preserve Initiative

Problem Statement

Arizonans have voiced and continue to express concerns over land use and preservation of open space, particularly in the fast growing urban areas of the state. A significant amount and the most valuable portion of Arizona's state trust lands lie within the path of growth of many of these communities. Historically, these lands have often been sold or leased for urban scale development after master planning by the State Land Department (or its permitees) and rezoning as necessary by local jurisdictions.

Although these plans may have included unbuildable washes and hillsides designated for open space, there was no other authority or mechanism to make trust lands available for conservation purposes. This conservation purpose needed to comply with rigorous requirements set forth by both Arizona's Enabling Act and Constitution for public auction and to always get highest and best use fair market value for the land.

Goal of the Arizona Preserve Initiative

As stated in the 1996 authorizing legislation, "The legislature finds that the long-term conservation of certain urban state trust land containing unique and significant value as open space is critically important to the citizens of this state. Promoting and enhancing the open space characteristics of state trust land is inherently necessary to conserve open space, protect cultural values and historic traditional uses. Therefore, the legislature intends to create a process to conserve state trust land as open space to benefit future generations that will use and enjoy the land."

As set forth in this legislation and follow-up legislation the next year, the goal of the Arizona Preserve Initiative (API) is to conserve urban state trust lands through a conservation sale or long-term lease to parties willing to manage the land for that purpose.

Background: State Trust Land Management

The Arizona State Land Department manages 9.4 million acres of state trust land on behalf of the 14 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 historic mission, therefore, has been to manage the lands to produce the highest revenue yield for the beneficiaries over the long term. This has been accomplished through leases for resource productive uses, rights-of-way and short-term commercial leases. Over the last 15 years, urban scale development that was planned, zoned, and leased or sold under the Urban Lands Act of 1981 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 states 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.

As is often the case in virtually all Western states, 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 Land Department. In Arizona, 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.

Creation of the API

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 conservation 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.

The challenge for the creators of the API 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 API 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 many lawmakers representing areas with natural resource-based economies and their constituents dictated its more limited application to areas in and around incorporated communities.

How the API Program Works

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.

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 10,000 persons. The 1997 amendments expanded the applicable area in Maricopa County (Phoenix area), and eventually Pima County (Tucson area), up to an additional 10 miles beyond these boundaries and specifically added 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.

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.

The 1997 amendments also added a public-private matching grant program under the State Parks Board for acquisition or lease of state trust lands for conservation, however, it left the program unfunded. (Funding is currently being sought in the present legislative session as part of a larger package of growth management and open space related legislation.)

Opportunities Under the API

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 lands may be best handled through the means of a right-of-way, certainly trail corridors within larger open space areas 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 inholding in existing parks, at least those within proximity to existing cities and towns.

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 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 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.

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.

Greatest Obstacles Overcome

The Arizona Preserve Initiative was a very difficult piece of legislation to pass and has been a challenge to implement. It is a story with chapters that are still being written. Forming enough of a coalition of interests to get a bill through both houses of the Legislature, even though the legislation did not go as far as originally intended, was a major accomplishment. It could not have been done without rock solid backing from the governor's office and from key legislative leaders particularly including Representative Carolyn Allen, Chairman of the House Environment Committee. Active participation from development interests, environmental concerns, key cities and towns interested in open space protection, and the cattleman's association to name but a few led to ultimate passage of the original bill and subsequent amendments.

A large future obstacle remains statewide financing for acquisition or lease of these conservation lands, but there is some promise currently, as part of a larger piece of growth related legislation. There are still some who remain unsure that the program can deliver or even that it is constitutional, but time will tell on both accounts.

Conclusion

API can be used to preserve open space, viewsheds, trails, natural parklands, perhaps even portions of ranches if the interest is there. It will not create soccer and baseball fields; it will not 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 10 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.

Contact:

Arlan M. Colton, AICP
Director - Arizona Preserve Initiative
Arizona State Land Department
1616 West Adams
Phoenix, Arizona 85007
(602) 542-2643
fax (602) 542-2590
acolton@lnd.state.az.us

Web Address:
www.state.az.us/gis3/asld/asldhome.html

Wyoming Agricultural Land and Open Spaces Initiative

The trend toward increased rural living and out-migration from more populous states has produced a rate of growth in many Western states which exceeds the national average. The willingness and ability of many people to relocate has combined with local factors in Wyoming to create a strong incentive for private landowners and agricultural producers to subdivide their land, raising concerns among Wyoming residents about loss of open space in many of its scenic areas.

Governor Jim Geringer's Agricultural Land and Open Spaces Initiative was established in 1994 to increase awareness among private landowners and local government officials about the options available to help keep ranchers and farmers in business and conserve agricultural land and open space.

History of the Initiative

The centerpiece of Governor Geringer's first year in office was a series of statewide partnership meetings on various key topics designed to create a 'strategic master plan' for his term in office. Minerals and energy, telecommunications, economic development, workforce development and natural resource issues were separately addressed at meetings throughout the year.

At the last of those meetings, The Wyoming Partnership: Natural Resources for Today and Tomorrow, conservation of Wyoming's open lands and the quality of life they represent were identified as priority issues. Governor Geringer tasked his Natural Resources Sub-cabinet (cabinet directors of the seven natural resource-related state agencies) to address the issue.

The first project undertaken by the sub-cabinet was to publish a guidebook on open lands protection, Ways to Conserve Wyoming's Wonderful Open Lands: A Guide Book. The purpose of the guidebook is to inform Wyoming residents and state officials about options available to private landowners and local governments concerning private and local land planning and conservation. All sub-cabinet members contributed to the text. The University of Wyoming, through its Institute for Environment and Natural Resources, contributed hundreds of hours of faculty time and provided two students from the School of Environment and Natural Resources to intern on the project. The Wyoming Community Foundation provided financial support for one of the interns.

Many additional Wyoming residents contributed expertise and ideas to the content and editing of the guidebook. The Wyoming Stockgrowers Association's "Open Dialog for Open Spaces," which includes representatives from environmental groups, served as the first editorial group. Other organizations whose members assisted with drafting included the Wyoming Farm Bureau Federation, the Wyoming Nature Conservancy, the Greater Yellowstone Coalition and the Wyoming Cooperative Extension Service. Some of these groups have shared little common ground in the past, so this project had the added benefit of increasing communication among them.

Development and publication of the guidebook was a major undertaking, and now an expanded group of participants who took an interest in this project is preparing recommendations to the Governor for next steps, including a steering committee to help keep ranchers and farmers in business and their lands open, a survey of public opinion on these issues, and agricultural land and local government open space demonstration projects.

Description of How it Works

After the guidebook was completed, it was presented to potential users such as private landowner and commodity groups, the Wyoming Bar Association, the Wyoming County Commissioners Association and the Institute for Environment and Natural Resources. A workshop was organized by the Wyoming Stockgrower's Association "Open Dialog for Open Lands" group. Additional work is still needed to acquaint potential users with the tools in the guidebook. Follow-up projects such as surveys and demonstrations should help build awareness and support among landowners and communities. State government will retain its role as an information source and assistant to landowners and communities, as opposed to relying on increased taxes and regulations.

Greatest Obstacles

Distrust among commodity and environmental groups runs deep in Wyoming, and for the governor to espouse a project that includes them all as proponents makes everyone nervous. Time and effort will help break through issues of trust and credibility. The support of leaders in the Wyoming Stockgrowers Association has been pivotal and is essential to the future of the project.

Retaining a high profile for the issue is difficult in Wyoming because our population growth impacts are not as acute as that experienced in our neighboring states. Wyoming has the opportunity to do some careful planning before the growth is upon it, yet the sense of urgency that gives high profile to the issue in Arizona, Utah, and other Western states is lacking in most areas of the state.

Contact:

Cynthia Lummis
3905 Bent Avenue
Cheyenne, WY 82001
(307) 632-1363
cynthia@lonetree.com

Web Address:
www.state.wy.us/governor/openspace/openspaces.htm

www.uwyo.edu/enr/toolbox.htm

Utah Critical Lands Conservation Committee

Utah, like many other Western states, is experiencing rapid growth in its population. Utah's population recently surpassed two million people. It took 113 years from the time the pioneers rode into Utah for the state to reach one million citizens. Amazingly, it took only 30 years for the state to grow from one million to two million people. Even more startling is the fact that it will only take 17 years to get to the third million, and 13 more years to get to the fourth million. Thirty years from now Utah's population will be double what it is today.

Although Utah will have twice as many people in 30 years, there will not be any more land than there is today. There will not be more water. There will not be more air. The open space that we cherish and that characterizes the quality of life we enjoy in the West will vanish unless we plan for its preservation now. The state gets one shot at preserving open spaces. When all of the open spaces are paved over and covered with convenience stores and strip malls, the opportunity will be gone.

Utah is experiencing an era of unprecedented opportunity, and unprecedented obligation. The challenge is to ensure that the heritage of open space that helps define Utah is also the legacy that remains for generations to come.

History of the Initiative

Ethics take time. You cannot appropriate an ethic. You cannot legislate an ethic. But you can germinate an ethic. This is a long-term process. Only a few years ago there was very little discussion about the importance of open space in Utah. But then came a turning point-the Utah Growth Summit. In late 1995, Utah Governor Mike Leavitt organized the summit to increase awareness and stimulate discussion on three growth-related issues: open space, transportation and water. The summit was a unique partnership of all levels of government, the private sector and the news media. The summit included two televised town meetings that gave Utahns the opportunity to learn about and provide input on several proposals for dealing with growth.

It is estimated that 500,000 people tuned in to the first town meeting which was broadcast live on every major commercial and public television station in Utah, along with many radio stations. A second town meeting was broadcast live the following night on a local public television station. The summit was also attended by several hundred citizens, many of whom participated in the discussions.

Prior to the summit there was some question about why the governor chose to include the topic of open space, particularly when open space was not a well-known or widely debated issue at the time. But of the three subjects, open space evoked the most passion and the most discussion.

A few concepts regarding open space became clear in the summit. One is that open space must be part of a larger vision or strategy for managing the state. There must be a balance between preserving open spaces and ensuring that citizens can obtain affordable housing in the state. Open space preservation cannot be viewed as the only ethic that is important, but must be done in the context of the larger picture.

Another concept that became evident was that open space means different things to different people. To some, it is agricultural preservation. To others, it is a golf course, a trail along a river way, a park. All are open space. Local communities must define open space and determine how to preserve and enhance their open spaces. Regardless of how a person or community defines open space, the issue resonates in the hearts and minds of people. People see the landscape of their communities fundamentally changing-and they want to be part of that discussion. Less than three years after the Utah Growth Summit, open space continues to be a significant issue for Utahns. To continue the momentum on open space issues created by the Utah Growth Summit, Governor Leavitt issued an executive order creating the Utah Critical Lands Conservation Committee. The committee is guided by four fundamental principles: protection of private property rights; local control over land use decisions; no net loss of private ownership of land; and partnerships in the funding of conservation efforts.

Description of How the Program Works

The mission of the Utah Critical Lands Conservation Committee is to act as a catalyst for locally initiated efforts to preserve critical open lands in the rapidly urbanizing areas of the state. The committee provides local communities with a knowledge base of issues, tools and resources and then encourages local communities to identify agricultural lands, critical wildlife habitat, watersheds, recreational lands and other lands necessary for the preservation of economically viable and sustainable agricultural production, and the quality of life and cultural heritage of the citizens.

The committee has worked closely with local communities, providing technical assistance in various open space efforts. The committee has produced Land Conservation in Utah: Tools, Techniques and Initiatives, a guide to be used by local governments, individuals and groups in their open space preservation efforts.

In cooperation with the American Planning Association, the committee has provided local planning commissioners with training in innovative open space design techniques. The committee inventories and identifies state lands that are not critical to agency missions to determine whether partnerships can be formed that would allow for the preservation of the agency land as open space.

Another important state role has been to bring together local open space committees that include representatives of local, state and national governments, representatives of conservation groups, development groups and other interested parties. There are local open space committees in almost all of the high-growth areas of the state. In the last two years, several significant local open space projects have been undertaken. In southern Utah they are developing a 70-mile long set of trails along a scenic river. In northern Utah, a city purchased a large farm and labeled it open space to preserve the integrity of the entrance to the community.

The 1998 Utah State Legislature passed a bill creating a critical land conservation revolving loan fund to allow local governments and nonprofit organizations to borrow money for open space preservation efforts. The Legislature also appropriated $100,000 to purchase conservation easements on agricultural land. The measure allows farmers to continue owning and working the land, while preventing its sales for development purposes.

Greatest Obstacles Overcome

One of the committee's biggest challenges has been to ensure a proper balance between open space preservation efforts and private property rights. Overcoming this hurdle required an acknowledgment from the beginning that while open space preservation is needed, it should not be done at the expense of other fundamental state interests, such as protecting private property rights and economic development. The four guiding principles of the committee, including protection of private property rights, are aimed at ensuring a balance of interests. The Utah Critical Lands Conservation Committee has been able to move forward with open space preservation efforts while maintaining this balance of interests. They have done this by ensuring that groups representing the various interests are at the table and have a chance to voice their views and concerns. The committee has adhered to its guiding principles and even incorporated them in legislation, including the legislation that created the critical land conservation revolving loan fund.

Contact:

Luke Smart
Governor's Office of Planning and Budget
(801) 538-1696

Page last updated 10/10/1999