This page originated in 2008, but contains information that remains valuable now.
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The county Planning & Zoning Commission may soon vote on a matter that state law required to be done years ago, according to a Sierra Vista Herald story posted online at

http://www.svherald.com/articles/2008/07/14/news/doc487aea71ebdd0010012488.txt

Originally, the vote was set for August 13, 2008, but it was moved back to September 10, after some citizen input.

According to the Herald story, the Commission will vote on an ordinance to establish a board that will give advice about the county building code.  Such a board is required by state law.  The story quotes the statute, but doesn't name it.  The statute is Arizona Revised Statute 11-862.


All statutes mentioned in this article are available online at
http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=11

The Herald story says the board will also "hear disputes over the county building code" and make final decisions.

The story raises at least five more issues.

WHY WASN'T THE BOARD CREATED WHEN THE CODE WAS PASSED?

The Herald story says the board is "required by an old Arizona statute. The reason [the board] is being formed now instead of 30 years ago when the state statute was passed is that Cochise County did not have an official building code until January 14, 2005, explained Chief Deputy County Attorney Britt Hanson."

Obviously, county ordinances must comply with state statutes.  Keeping county ordinances in line with statutes is one of the jobs that county attorneys are paid to do.

Also, the story quotes Hanson as saying "Cochise County did not have an official building code until January 14, 2005 ...."

However, according to the minutes of the December 14, 2004, meeting where the Supervisors adopted the new code, James Vlahovich (then Planning Department head, now Deputy County Administrator) said "Cochise County has two limited enforcement areas around Sierra Vista and Benson and uses the 2000 International codes."

It remains unclear why the board wasn't created when the code was passed.

IS THE ENTIRE PROCESS UNFAIR TO THE PUBLIC?

The Herald story adds "Hanson said the commission's vote of approval to proceed was just a courtesy.  'In the future, I'd recommend it to go on the agenda as an action item,' ...."

However, creating a combined "advisory/appeals" board is not so routine that it should be treated as an "action item," meaning an item where public discussion is not allowed.

One complication may be a difficulty in distinguishing appeals that should go to this board, from appeals that should go to a Board Of Adjustment.

Another problem is that state law, ARS 11-862, allows "an advisory board ... to determine the suitability of alternative materials and construction and to permit interpretations of the provisions of such code."  That law doesn't mention sitting as an appeals court.

State law does let the Board Of Supervisors assign duties to the advisory board.  However, if the extra assignment includes acting as an "appeals court," then the board will be deciding appeals from its own interpretations.

It seems basically unfair, when a citizen disagrees with an interpretation made by a board, to make the citizen appeal to the same board.  The procedure is rigged against the citizen.

CAN THE COUNTY ENFORCE REGULATIONS IT'S PASSED TO ENFORCE THE CODE?

State law lets Supervisors adopt a building code if a county "has adopted zoning pursuant to this chapter" (ARS 11-861.A). However, state law also says "Any code adopted pursuant to this article shall contain a provision for an advisory board" (ARS 11-862.A).  "This article" means the set of statutes governing building codes, and "shall" makes this provision mandatory.

The Herald story makes it clear that the county building code did not include a provision for an advisory board.  Therefore, was the code actually adopted "pursuant to" the governing statutes?

If not, can the Supervisors adopt rules and regulations to enforce the code?  State law (ARS 11-863.B) lets the Supervisors "adopt necessary rules and regulations for the enforcement of any code adopted under this article" -- but not to enforce a code that wasn't adopted "under" this article.

If the county has been enforcing rules and regulations that it had no authority to pass, what becomes of all the prosecutions pursued, orders made, and fines collected?

In reality, it is more likely than not that the building code can, despite its failure to include the mandatory advisory board, be considered as adopted "pursuant to" the governing statutes.

However, "more likely than not" is not a high standard, and the consequences of a negative answer would be disastrous for the county. Therefore, the Supervisors might consider obtaining an authoritative answer to this legal question.

The supervisors shouldn't ask the County Attorney's office to evaluate its own work, especially since that office didn't do its job when the ordinance was passed.

It would appear prudent to hire outside counsel, independent of the County Attorney's office, with no involvement in county politics. Perhaps some adjustment could be made to the County Attorney's budget, to pay for an investigation which wouldn't be needed if that office had done its job when the ordinance was passed.

IS THE PLANNING DEPARTMENT BUILDING BIAS INTO THE EVALUATION OF THE CODE?

The Herald story says "Ron Durgen, county building inspector, will be forming the list of possible appointees" to the advisory board.  (Durgin is how the name is spelled.)

Durgin is also named, in a July 16, 2008 email from the Planning Department, as the person who is preparing a work session on the building code.

However, Durgin's history indicates strong partiality in favor of the code.

In 2004, when the supervisors were discussing the code, Durgin was one of the people who made promises in order to get the code passed.

One of Durgin's promises was that the code would "have a positive impact on property insurance rates."  However, as of August 14, 2007, Judy Anderson (then Planning Department head, now retired) admitted that the Department still hadn't asked any insurance companies about lower rates.

Durgin was also involved in bypassing another promise made in order to get the code passed.

At the December 14, 2004 meeting, before the vote was taken, Supervisor Paul Newman moved to form a work group (the Supervisors, Planning & Zoning staff, County Attorney staff, building code experts, builders and developers, and members of the public) to develop a recommendation on how to implement the code in "Phases 2 and 3," areas not close to Sierra Vista.  Newman's motion got no second.  According to the minutes, Supervisor Patrick Call "agreed with the merit of a review to study Phase 1 before the implementation of Phases 2 and 3 but did not feel that the Resolution needed to be amended.  He made a motion to keep the motion on the table in place but add a six-month review and evaluation process before the implementation of Phases 2 and 3. Supervisor Newman seconded the motion.  During discussion Mr. Vlahovich stated that although he hoped six months would be sufficient time for his department to collect data for review, he would be more comfortable with nine months before the review and evaluation.  Chairman Call then changed the time frame to nine months."  That's the motion that was passed.

"Phase 2" was to begin on April 1, 2006, but on March 28, the Supervisors voted to delay Phase 2 because no evaluation had been carried out.  In the interim, the Supervisors set an in-house report by the Planning Department for April 18.  Ron Durgin was chosen by the Department to deliver the in-house report.

Durgin, during this period, appeared very solicitous of pro-code groups like the Southeast Arizona Contractors Association ("SACA").  On March 1, Durgin emailed Lynn Mattingly, the chairman of a SACA committee, saying "I will list some of the highlights of the regulation below in the hopes of bringing you and the members of SACA up to speed on where this issue has gone since we last presented it to the group," "let me know if you have any questions or concerns that I can help with," "I will also be available at your March 15th General Meeting to answer any questions ... on the new regulation," and "this would not be presented to the Board of Supervisors until April 18th, allowing time for input from the SACA members if needed."

Durgin's work with SACA was not completely out in the open.  Durgin sent copies of his email to other SACA members, Judy Anderson, James Vlahovich, and Supervisor Call.  But Durgin didn't send copies to Supervisors Richard Searle or Paul Newman.  On March 8, Mattingly answered Durgin, with copies to Anderson and SACA members.  But Mattingly didn't send copies to Searle or Newman.

When Durgin delivered the April 18, 2006 interim report, it did not address any of the promises, including his own, that were made in order to get the code passed.  His report merely claimed that the code was collecting enough fees to pay the salaries of the people enforcing the code (including Durgin's own salary).  If the code program had been paying its own way, that would have satisfied a promise made in order to get the code adopted.  According to the minutes from December 14, 2004, Vlahovich said "the plan would pay for itself in about 3 years and only be subsidized by the General Fund for the start-up period."

But long after Durgin gave his in-house report, Judy Anderson, in another in-house report on August 17, 2007, produced data showing "building code" deficits of $216,000 for fiscal year 2004/5, $64,000 for 2005/6, and $252,000 for 2006/7.  The total deficit, over half a million dollars, was accruing even as Durgin reported that the code was paying its own way.

The Department did suggest making a request for the 2007/8 "building code" finances, and a request will be submitted for that and other information.  This article will be updated based on the county's response.

However, the Department expects to present the updated numbers for 2007/8 at a work session being prepared by -- Ron Durgin.  A work session prepared by a person evidently biased in favor of the code cannot substitute for an comprehensive review by the Supervisors, P&Z staff, County Attorney staff, building code experts, builders and developers, and members of the public.