Should the county act as a go-between for developers in regard to dealing with rights of way and easements across state lands?

It’s a question on the minds of Cochise County supervisors. Arizona State Land Development is a major land holder in the county with more than 2,000 square miles under department supervision, and there are sure to be requests for assistance in such matters.

Currently, Arizona State Land Development allows a 50-year or less lease for access to a development across state lands when the developer works directly with the state. The right-of-way land also must go through a public auction process, explained Reuben Ojeda, manager of rights of way with Arizona State Land Development.

However, if the county works with Arizona State Land Development, staff can negotiate a perpetual lease with no public auction, which saves the developer that process, he said.

But if the development fails to launch, then the county is on the hook to restore the land to its native state. If the development fails to build out or only a handful of people purchase and build, the county is also responsible to maintain any constructed access road for those residents, county transportation planner Karen Lamberton said. 

The issue is under consideration since developer Allan Thome asked the county to act as the lessee for two roadways in the Ranch at Tombstone development in order to get two perpetual leases from Arizona State Land Development, Lamberton said.

Past problem

But the county experienced a problem when staff assisted the developer of Bachman Springs some 10 years ago.

“We did not have a developer agreement 10 years ago, but we did ask for an assurance agreement. A road was built without the county’s knowledge, and the appropriate fees to state land were left unpaid,” Lamberton said. The state sent the county a bill for stumpage fees (fees collected for every tree cut in the road construction process), since the county held the easement lease.

Staff managed to get with the owner, who has assured the county the matter has been resolved.

According to Deputy County Attorney Adam Ambrose in a memorandum to Lamberton, a special agreement between the county and the developer would have to include all terms imposed on the county by Arizona State Land Development and secured with a performance bond. That would cover costs to list and obtain approval for removal of all native plants disturbed by the construction process. (Each plant has a value as established by Arizona State Land Development.) The agreement would have to include payment for archaeological studies and notification to grazing lessees in addition to other requirements.

The developer would also have to pay for the added cost of staff time to cover the county’s oversight responsibility as easement holder to supervise the developer and prevent that developer from violating numerous Arizona State Land Development terms of the easement, Ambrose said.

Of course, the county would have to charge the developer for the work involved in right of way acquisition. But how much?

Mack Dickerson, of Tierra Right-Of-Way, a private firm that helps developers through the state land easement system, is working with Thome. His firm charges $15,000 to $20,000 to obtain Arizona State Land Development rights of way.