Arizona State Land Right-of-Way (3-AZ-b)
State Land Right-of-Way Process
3-AZ-b.1 to 3-AZ-b.2 – Contact the Arizona State Land Department; Hold Pre-Application Conference
Although the ROW process is technically initiated by the submission of an application, the developer may contact ASLD’s real estate division in order to discuss specific properties or to schedule a preliminary application conference. Because ROW applications are not posted online, they must be obtained directly from the ASLD. The Developer may pick up an application in person at the ASLD or contact the Rights-of-Way division and request that a copy be mailed. See Arizona State Land Department Rights-of-Way Website.
3-AZ-b.3 to 3-AZ-b.5 – Right-of-Way Application
As stated above, the ROW application process is technically initiated when the developer submits an ROW application to the ASLD. Entities that may apply for a ROW are listed in A.A.C. R12-5-801(C)(1)(a). A separate application must be submitted for each county crossed. See A.A.C. R12-5-801(C)(2). The following information must be included in the application:
- Name and address of the developer;
- Statement whether developer is an individual, partnership or corporation, or governmental agency of the state or political subdivision and municipal corporation thereof;
- Statement of citizenship, when applicable;
- If a corporation;
- State of incorporation;
- Arizona business address;
- Affirmation of authority to do business in Arizona;
- Age and marital status, when applicable;
- Description, according to the public land survey of the land for which application is being made;
- Width of the right-of-way;
- The nature of the right-of-way (the right-of-way is temporary or permanent; the right-of-way requires exclusive use or to what extent; a right- of-way through a given area);
- A survey of the land for which application is being made showing distance and direction from a known cadastral survey point in each section;
- Location of improvements or crops on land under application over which proposed routes of right-of-way will pass (information required in A.A.C. R12-5-801(C)(3)(a)(ix) and A.A.C. R12-5-801(C)(3)(a)(x) must be conveyed by means of accurate plat or drawing accompanying the application form);
- Evidence from surface lessee and all other right holders in the land applied for giving consent to the new right-of-way or objection thereto.
See A.A.C. R12-5-801(C)(3)(a). The application should also include information about what the developer proposes to construct and the purpose of the ROW. See the Right-of-Way Instruction Sheet. Supplemental forms may be required for specific types of ROW applications. For example, utilities must submit Form RW-U along with the ROW application. See Arizona State Land Department Applications and Permits Website. In addition, the ASLD may require the developer to submit additional information if necessary. See A.A.C. R12-5-801(C)(3)(b). The application must be accompanied by the appropriate filing fee, signed, and returned to the ASLD. Each application is reviewed by ASDL for completeness. See A.A.C. R12-5-801(C)(5)(a)-(b).
3-AZ-b.6 to 3-AZ-b.9 – Process Application; Does the ASLD Approve the Right-of-Way?; Conduct Appraisal; Perform Required Surveys
More complex ROW applications may take longer to process. Processing times vary from 12 to 16 months. See Arizona State Land Department Rights-of-Way Website. The ASLD conducts a preliminary review of the application to “evaluate impact and suitability as to the acceptability of the proposed alignment.” In some cases, a field inspection may be required. The developer will be notified if the alignment is acceptable. In some circumstances, additional surveys may be required. See the Right-of-Way Instruction Sheet. If the ASLD decides to approve the ROW, it will determine the rental fees after conducting an appraisal. See A.A.C. R12-5-801(C)(5)(c). The appraisal is based on the fair market value of the land. See the Right-of-Way Instruction Sheet.
3-AZ-b.10 – Does ASLD Approve the Right-of-Way?
ASLD may approve or deny the request for a right-of-way. If the right-of-way is not approved, then the developer may choose to appeal that decision to the Arizona Board of Appeals.
3-AZ-b.11 to 3-AZ-b.12 – Right-of-Way Contract
If the ASLD approves the ROW, it will draft a ROW contract that contains necessary terms and conditions. See A.R.S. 37-461. It must also provide for the following:
- Payment to the [ASLD] of the amount established by the [ASDL] after determination of the true appraised value.
- The installation and construction of necessary machinery, equipment and facilities with the right of removal within 90 days after expiration or termination of the right-of-way.
- Fencing and other protective requirements deemed necessary by the [ASDL].
- That the grantee (developer) must restore the surface of the land within the right-of-way to a reasonable condition as required by the [ASDL].
- That the grantee (developer) will indemnify, hold and save grantor harmless against all loss, damage, liability, expenses, costs and charges incident to or resulting in any way from the use, condition or occupation of the land.
- A statement of the purpose for which the right- of-way was granted.
- The right of the grantee (developer) to assign the right-of- way, provided that such an assignment can not become effective until approved in writing by the [ASDL] as being in the best interests of the state and until a copy thereof is filed with the [ASDL].
- The right of termination of the right-of-way by the grantee (developer) at any time during its term by giving the [ASDL] 30 days notice of termination in writing, provided that the grantee (developer) is not delinquent in any payments and has complied with all conditions on the date of termination.
The ASDL may also require the developer to post a bond to guarantee payment under the contract, guarantee restoration of the land after the ROW has expired, or cover loss associated with damage or destruction resulting from the construction or use of the ROW. See A.A.C. R12-5-801(D)(7). The ASLD issues the ROW contract once the developer has demonstrated compliance with all of the application requirements. The developer has 60 days from the date of mailing to execute and return the ROW contract with all applicable fees and rents. Failure to do so may result in the cancellation of the ROW. See A.A.C. R12-5-801(C)(8).
3-AZ-b.13 – Does the Developer Appeal the Decision?
The developer may appeal the decision not to approve the right-of-way to ASLD’s Commissioner.
3-AZ-b.14 – Notice of Appeal
The developer must file a written Notice of Appeal to ASLD containing a clear and concise statement of the grounds for appeal and the specific relief sought. R12-5-2302
3-AZ-b.15 – Set a Date for the Hearing
The County Clerk must set a date for the hearing within 10 days of receipt of the Notice of Appeal. R12-5-2303(A).
3-AZ-b.16 – Provide Notice of Hearing
The County Clerk must serve notice of the hearing, by certified mail or personal service, to the developer at least 30 days before the hearing. R12-5-2303. The Notice of Hearing must contain a statement:
- Identifying the parties and matters asserted;
- Establishing the date, time, and place of the hearing;
- Identifying the legal authority and jurisdiction under which the hearing is to be held;
- Advising the parties of the requirements of R12-5-2305;
- Referencing the particular statutes and rules involved. R12-5-2303.
3-AZ-b.17 – Conduct Hearing on Decision
The Arizona State Land Department's Board of Appeals (the “Board”) will conduct a hearing to review the decision to deny a right-of-way.
3-AZ-b.18 to 3-AZ-b.19 – Does the Board Approve the Right-of-Way?
The Board must render a final decision within 60 days after the hearing. R12-5-2314(A). The Board must include the findings of fact and conclusions of law that led them to their final decision. R12-5-2314(B).
3-AZ-b.20 to 3-AZ-b.21 – Does the Developer Appeal the Decision?
The developer may appeal the decision of the Board through filing a request for rehearing or review of decision within 30 days following issuance of the final decision. R12-5-2315(A). The Board may grant a rehearing or review for any of the following reasons materially affecting the developer’s rights:
- Irregularity in the proceedings or any order or abuse of discretion that deprived the developer of a fair hearing;
- Misconduct of the Board, its staff, or the prevailing party;
- Accident or surprise that could not have been prevented by ordinary prudence;
- Newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing;
- Error in the admission or rejection of evidence or other errors of law occurring at the hearing or during the progress of the proceedings; or
- The findings of fact or decision is not justified by the evidence or is contrary to law. R12-5-2315(C).
3-AZ-b.22 – Participate in Rehearing or Review of Decision
The Board may approve or deny the request for rehearing or review. R12-5-2315(D). The Board must conduct the rehearing or review within 90 days after issuing the order granting rehearing or review. R12-5-2315(H).
3-AZ-b.23 to 3-AZ-b.24 – Does the Board Approve the Right-of-Way on Appeal?
ASLD may approve or deny the right-of-way following rehearing or review.