Bettwy v. Black Canyon Greyhound Park, Inc.

• Decision Date: 13 April 1978
• Docket Number: No. 1,CA-CIV,1
• Parties: Andrew L. BETTWY, State Land Commissioner, State of Arizona, and the Arizona State Land Department, Appellants, v. BLACK CANYON GREYHOUND PARK, INC., an Arizona Corporation, Appellee. 3584.
• Court: Arizona Court of Appeals

Page 365

580 P.2d 365

119 Ariz. 227

Andrew L. BETTWY, State Land Commissioner, State of Arizona, and the Arizona State Land Department, Appellants, v. BLACK CANYON GREYHOUND PARK, INC., an Arizona Corporation, Appellee.

No. 1 CA-CIV 3584.

Court of Appeals of Arizona,Division 1,Department A.

April 13, 1978.

Rehearing Denied May 17, 1978.

Review Denied June 13, 1978.

Bruce E. Babbitt, Former Atty. Gen. by Peter C. Gulatto, Dale E. Pontius, Asst. Attys. Gen., Phoenix, for appellants

Lewis and Roca by John P. Frank, Richard A. Hillhouse, Phoenix, for appellee.

OPINION

FROEB, Chief Judge.

Black Canyon Greyhound Park, Inc. (Black Canyon) sought by this special action to require appellants, the Arizona State Land Department (Department) and its commissioner, Andrew L. Bettwy (Commissioner), to proceed with the sale of state school trust lands. The subject property includes land upon which the Black Canyon Greyhound Park is built and some undeveloped commercial acreage in the same area. From a judgment in favor of Black Canyon, appellants bring this appeal.

Black Canyon has leased approximately 62.31 acres of state land since 1964. During the lease term it constructed on the land a greyhound racing plant, commonly known as the Black Canyon Greyhound Park. On November 21, 1973, Black Canyon filed an application to purchase the land. An appraiser employed by the Department opined that the land had a market value of $5000 per acre. Appellants' review concurred with the opinion and, on May 13, 1974, the Commissioner adopted the appraisal as his own and appraised the land at $5000 per acre. On June 6, 1974, the Commissioner approved the sale of the land in two parcels, one containing 26.35 acres and the other 4.32 acres. He determined the remaining acreage should not be sold and so ordered. On June 13, 1974, Deputy Commissioner Fritz C. Ryan, acting on behalf of the Department and the Commissioner, issued a set of "Appraisal & Determination" orders: "The Commissioner has and does hereby appraise the land at $5,000.00 per acre. TOTAL LAND APPRAISAL $131,750.00 and the IMPROVEMENTS AT $1,817,300.00. The Department determines that the interests of the State will not be prejudiced by the sale of said land and it is the Decision of the Commissioner and Department that said land and improvements be sold according to the provisions of the related law."

Pursuant to A.R.S. § 37-214, Black Canyon appealed the appraisal to the State Land Department Board of Appeals (Board). The Board conducted a hearing and on January 14, 1975, overruled the Commissioner's appraisal and reduced it to $2250 per acre: "(I)t is ordered that the decision and appraisal set by the State Land Commissioner in appraising said land at $5,000.00 per acre on land above described is overruled as not being in the best interest of the trust, and the Board of Appeals further recommends that the appraisal on land be reduced to $2,250.00 per acre." Neither the appellants nor Black Canyon appealed from the Board's decision. On April 4, 1975, Ryan issued a second set of "Appraisal & Determination" orders, which were identical to the ones of June 13, 1974, except that the appraised value of the land was $2250 per acre as fixed by the Board.

Despite Black Canyon's repeated requests, appellants did not proceed with the sale. Black Canyon instituted this special action in the nature of a mandamus. The trial court concluded that all the statutory steps and procedures for the sale of the land had been satisfied. On May 25, 1976, the court entered its judgment ordering the Commissioner to "issue an order authorizing the sale of the subject property to the highest and best bidder therefor at public auction held at the county seat of the county wherein the land or the major portion thereof is located after notice of the sale by advertisement, all to occur forthwith and without further delay."

To determine whether the trial court's directive to the Commissioner was proper, we must answer two questions: (1) Did the Commissioner approve the sale of the land? (2) If so, can he revoke his decision to sell?

The land in question is school land granted by the United States to Arizona under the New Mexico-Arizona Enabling Act, 36 U.S.Stat. 557, and is subject to the provisions of the Enabling Act and the Arizona Constitution. According to Lassen v. Arizona, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967), § 28 of the Enabling Act, and Ariz.Const. art. X, § 1, state land must be appraised before it is sold and may not be sold for less than the appraised value. The specifics of administration are left to statute, however.

Title 37 of the Arizona Revised Statutes deals with the land law involved here. Chapter 1 establishes the state land department and the office of the state land commissioner. Among the commissioner's powers and duties is the classification and appraisal of all state lands. A.R.S. § 37-132A(4). He can appoint deputies to perform the duties of the department. A.R.S. § 37- 132A(8). Chapter 2 covers the administration of public lands. An appeal from a final decision of the commissioner relating to classification or appraisal may be taken to the board of appeals by any person adversely affected by the decision. A.R.S. § 37-214(A). The decision of the board of appeals may be appealed to the superior court. A.R.S. § 37-214(D). The decision of the superior court may be appealed in the same manner as are final judgments in civil actions. A.R.S. § 37-214(E). A.R.S. § 37-214(F) provides: "If no appeal is taken, the decision of the commissioner or the board of appeals, as the case may be, shall be final and conclusive." Article 3 sets forth the procedure for the sale of state lands.

To answer the question whether the Commissioner approved the sale of the land, we look to A.R.S. § 37-236. That section provides:

Upon completion of the appraisal, if the department determines that the interest of the state will not be prejudiced by sale of the land, . . . within sixty days after the time for taking an appeal expires and no appeal is taken, or if an appeal is taken and the decision is against appellant, within sixty days after the decision is received, the department shall make an order authorizing sale of the lands to the highest and best bidder therefor at public auction held at the county seat of the county wherein the land or the major portion thereof is located, and the department shall give notice of the sale by advertisement.

Appellants contend that the Commissioner never made an appraisal of the land and, therefore, he cannot be ordered to authorize the sale of the land since, according to A.R.S. § 37-236, an appraisal is a prerequisite to proceeding with the sale. We agree with the appraisal requirement but we disagree that the Commissioner has not made an appraisal.

A.R.S. § 37-132A(4) assigns the commissioner the power and the duty to appraise state land. ¹ We believe the Commissioner made his appraisal on May 13, 1974, when, as the state land commissioner, he signed the following statement: "I appraise the land at $5000.00 per acre and determine that there are $1,817,300 worth of reimbursable improvements on the subject parcel; the order of sale shall also carry conditions for . . .." Not only did he make the required appraisal, he approved the sale as well. On the same worksheet, directly below the statement quoted above, he wrote: "6/6/74 OK to sell 53-26310-1 & 2 separately (not 3) proceed." This was signed with his initials. As required by A.R.S. § 37-236, the Department, through Deputy Ryan, determined that the interests of the state would not be prejudiced by the sale of the land. Ryan's certificate of appointment empowers him to execute all documents...