DOT-02-2013 - ORDINANCE - 2014-04-16.DOC

REVISED DECEMBER 19, 2013
AN ORDINANCE ADOPTING PROCEDURES FOR THE ABANDONMENT OF
PATENT EASEMENTS PURSUANT TO A.R.S. §11-251.16
Whereas, the Arizona State Legislature has enacted Laws 2013, Chapter 49,
relating to county powers and duties, effective on the ninety-first (91st) day after the date
the fifty-first (51st) Legislature adjourns its first regular session sine die; and
Whereas, A.R.S. §11-251.16, as added by Laws 2013, Chapter 49, grants to
Arizona counties authority to abandon easements created pursuant to the Small Tract
Act of 1938; and
Whereas, the Arizona Legislature has required that public notice to be given by
the Board of Supervisors before a resolution abandoning an easement created pursuant
to the Small Tract Act of 1938 may be adopted; and
Whereas, the Maricopa County Board of Supervisors desires to establish
procedures and guidelines for the abandonment of easements created pursuant to the
Small Tract Act of 1938; and
Whereas, the Maricopa County Board of Supervisors recognizes it is important
for property owners to have a process whereby the property owners may request the
Board to remove unnecessary patent easements from their property under certain
conditions.
NOW THEREFORE, BE IT ORDAINED BY THE MARICOPA COUNTY BOARD
OF SUPERVISORS, as follows:
Section 1. Definitions. As used in this Ordinance, the following terms shall have the
following meaning:
“Affected Utilities” means any and all suppliers of electricity, gas, water, sewer
service, cable television, telephone service, internet services or other utilities that have
1

been registered with the Arizona Blue Stake Center that provide services in the vicinity
of a patent easement for which abandonment has been requested.
“Board of Supervisors” means the Board of Supervisors of Maricopa County,
Arizona.
“Land Abutting the Easement” means those properties, or any part thereof, that
share a common boundary with the portion of a patent easement for which a request for
abandonment is filed.
“Lender” means any person or institution with a recorded lien secured by a Deed
of Trust or Mortgage in property that is burdened by a patent easement.
“Majority of the Owners” means greater than fifty percent (50%) of all record
owners of all property that abuts the patent easement for which abandonment has been
requested. If an undivided parcel is owned by multiple owners, such owners shall be
deemed as one for purposes of this definition.
“MCDOT” means the Maricopa County Department of Transportation.
“Objection to Abandonment” means a notice in writing delivered to the Clerk of
the Board of Supervisors on or before the date of the meeting of the Board of
Supervisors at which abandonment of a patent easement is scheduled, which
expresses opposition to the abandonment.
“Patent Easement” means an easement created pursuant to the Small Tract Act
of 1938.
“Request for Abandonment” means the filing of an application in the form
prescribed by Maricopa County, together with all supporting documentation, by all
record title holders of property that is burdened by a patent easement to commence the
process for having the patent easement removed from the property, if deemed justified
and appropriate by the Board of Supervisors.
Section 2. Request.
2

a. Section 2. Request. A request for Initial Determination may be filed by
any person. A request for Initial Determination shall be filed on forms provided by
MCDOT and shall be accompanied by all required documentation and the required fee.
The request for Initial Determination shall be promptly circulated by MCDOT to the
Maricopa County Planning and Development Department, Maricopa County Public
Works Real Estate Division, Maricopa County Parks and Recreation Department, the
Real Estate Services Division of the Maricopa County Department of Finance and the
Flood Control District for Maricopa County. In the event the property burdened by the
patent easement for which abandonment is being requested has a common boundary
with any municipality, any tribal nation, property of the Arizona State Land Department,
the Federal Bureau of Reclamation and/or the Federal Bureau of Land Management,
each of the affected entities shall also be provided with a copy of the request for Initial
Determination. The reviewers named in this paragraph shall provide comments to
MCDOT within fifteen (15) days of MCDOT’s circulation of the request for Initial
Determination. Once MCDOT has completed the review and within thirty (30) days of
the circulation of the request for Initial Determination, a written Initial Determination shall
be provided to the person requesting the Initial Determination.
b. Subsequent to receipt of a request for Initial Determination, if it is
determined by the requesting party that a request for abandonment will be pursued, a
request for abandonment shall be filed with MCDOT on forms prescribed by Maricopa
County and shall be accompanied by the applicable filing fees established by the Board
of Supervisors. A request for abandonment of a patent easement may only be filed by a
majority of the record owners of the property burdened by the patent easement for
which abandonment is being requested.
c. Upon receipt of a request for abandonment of a patent easement, MCDOT
shall review the request for completeness. No request for abandonment of a patent
easement shall be complete unless accompanied by the consent to the abandonment
by any and all Lenders. MCDOT shall make its determination regarding completeness
of the request within fifteen (15) days. MCDOT may return the request for
abandonment to the requestor for adjustment to render the request complete.
3

d. Upon a determination that the request for abandonment of a patent
easement is complete, said request shall be circulated by MCDOT to the Maricopa
County Department of Planning and Development, the Maricopa County Department of
Environmental Services, the Flood Control District of Maricopa County, the Maricopa
County Public Works Real Estate Division, the Real Estate Services Division of the
Maricopa County Department of Finance and Maricopa County Parks Department. In
the event the property burdened by the patent easement for which abandonment is
sought has a common border with any incorporated municipality or municipalities, a
copy of the request for abandonment shall be sent to said municipality or municipalities.
In the event the property burdened by the patent easement for which abandonment is
sought has a common border with any property owned by the Arizona State Land
Department, a copy of the request for abandonment shall be sent to the Arizona State
Land Department. In the event the property burdened by the patent easement for which
abandonment is sought has a common border with property owned by the Federal
Bureau of Land Management, a copy of the request for abandonment shall be sent to
the Federal Bureau of Land Management. In the event the property burdened by the
patent easement for which abandonment is sought has a common border with any
property that is part of a tribal reservation, a copy of the request for abandonment shall
be sent to the appropriate Nation. In addition, MCDOT shall obtain from the Arizona
Blue Stake Commission the identity of all Affected Utilities. The reviewers named in this
paragraph shall provide comments to MCDOT within thirty (30) days after the request
for abandonment has been found to be complete.
e. Upon receipt of input from the departments and agencies to which the
request for abandonment of a patent easement have been circulated, but in no event
later than fourteen sixty (1460) days after the request has been found to be complete,
MCDOT shall prepare a report to the Board of Supervisors, including a recommendation
if the request should be granted or denied. Said report shall include a determination of
whether or not consent of all affected utilities has been obtained and shall include an
analysis whether the patent easement for which abandonment is sought is being used
or if the patent easement is still necessary. A copy of said report, together with any and
4

all comments from any of the departments or agencies to which the request has been
circulated, shall be posted on the MCDOT web site. MCDOT shall provide to the
contact person named on the request for abandonment of a patent easement notice that
the required documentation has been posted on the MCDOT web site and shall provide
the necessary link to the posting.
f. When the report by MCDOT has been posted, the clerk of the Board of
Supervisors shall schedule the request for abandonment of the patent easement for
consideration by the Board of Supervisors.
g. Not fewer than sixty (60) days before any meeting at which the request for
abandonment of the a patent easement shall be considered, MCDOT, on behalf of the
Board of Supervisors, shall provide by certified mail written notice to the record owners
of all land abutting the easement and to the Affected Utilities of the time, date and place
of the meeting at which the request for abandonment of the a patent easement shall be
considered by the Board of Supervisors. The notice shall provide a description of the
property burdened by the patent easement for which abandonment is requested, and
shall provide notice of the opportunity and deadline to provide objection to
abandonment and the right to personally appear at the meeting and present objection to
the proposed abandonment.
h. Not fewer than sixty (60) days before any meeting at which the request for
abandonment of the a patent easement shall be considered, MCDOT, on behalf of the
Board of Supervisors, shall post a notice in one location on or within the vicinity of the
portion of the patent easement for which abandonment has been requested. Said
posting shall provide notice of the time, date and place of the meeting at which the
request for abandonment of a patent easement shall be considered by the Board of
Supervisors. The notice shall advise of the opportunity and deadline to provide
objection to abandonment and the right to personally appear at the meeting and present
objection to the proposed abandonment. The posting shall be accomplished in
accordance with the general practice of MCDOT for the posting of notices of
abandonments.
i. Not fewer than twenty-four (24) hours prior to the meeting of the Board of
Supervisors at which a request for abandonment of a patent easement is to be
5

considered for resolution, the clerk of the Board of Supervisors shall provide to each
member of the Board of Supervisors a copy of the staff report, all documentation by the
owners seeking abandonment of a patent easement and any written objection to
abandonment received by MCDOT or any other county agency.
Section 3. Fees
a. The fee for an Initial Determination shall be $250.00.
b. The fee for an Application for Patent Easement Abandonment shall be
$1,600.00. If an Application for Patent Easement Abandonment is filed within six
(6) months of the date upon which an Initial Review has been completed for the
same patent easement, the applicant shall receive a credit against the fee for the
Application for Patent Easement Abandonment in the amount of $250.00.
Section 4. Procedures before the Board of Supervisors.
a. The owners seeking the abandonment of a patent easement shall have
the obligation to demonstrate that the patent easement is not being used by the public
or is no longer necessary.
b. At the conclusion of the presentation of all arguments concerning the
request for abandonment of a patent easement, and after deliberation, the Board of
Supervisors shall grant the request, deny the request or postpone consideration of the
request. The granting of any request for abandonment of a patent easement shall only
be accomplished by the Board of Supervisors adopting a formal resolution, which
resolution shall be in form that will allow the recording of such resolution in the chain of
title of the property burdened by the patent easement.
c. The grant of a request for abandonment of a patent may be subject to any
and all conditions which the Board of Supervisors shall deem necessary.
6

Section 5. Criteria for granting relief.
In exercising its discretion to abandon a patent easement, the Board of
Supervisors shall use the following criteria:
a. If a patent easement for which abandonment is requested shares a
border with and is parallel to any right of way that has been opened and declared by
Maricopa County, there shall be a rebuttable presumption that the patent easement is
being used and is necessary.
b. If a patent easement for which abandonment is requested shares a border
with and is parallel to any right of way that has been dedicated or granted to Maricopa
County or to the public, there shall be a rebuttable presumption that the patent
easement is still being used and is still necessary.
c. A request for abandonment of a patent easement may be granted only if a
majority of the owners shall not have objected, either by providing written objection or
presenting objection in person at any meeting of the Board of Supervisors at which a
request for abandonment of a patent easement is considered.
d. No request for abandonment of a patent easement shall be granted over
the objection of the Arizona State Land Department, the Federal Bureau of Land
Management or any Affected Utility.
e. In the event any municipality or tribe to which notice has been provided
pursuant to this Ordinance shall provide written objection to the abandonment of a
patent easement, there shall be a rebuttable presumption that the patent easement is
being used or that the patent easements remains necessary.
f. A request for abandonment of a patent easement shall only be granted
when the Board of Supervisors determines in its discretion that the patent easement is
not being used by the public at the time of the request or that said patent easement is
no longer necessary.
7

Section 6. Effective abandonment.
Upon the adoption of a resolution abandoning a patent easement and the
appropriate signatures being affixed, the original resolution shall be recorded in the
office of the Recorder of Maricopa County by the Office of the Clerk of the Board of
Supervisors. A patent easement shall be deemed to have been abandoned upon the
recording of a resolution abandoning a patent easement which has been properly
adopted by the Board of Supervisors. An abandoned patent easement shall no longer
be a burden upon the property previously burdened by the patent easement.
Section 7. Effective date. This ordinance shall be effective on the date that is thirty
(30) days after adoption by the Board of Supervisors.
ADOPTED BY THE MARICOPA COUNTY BOARD OF SUPEVISORS on
_____________, 2014.
__________________________
Denny Barney, Chairman
ATTEST:
_______________________________________
Fran McCarroll, Clerk of the Board of Supervisors
8