This page originated in 2008, but contains information that remains valuable now.
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
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
to establish a board that will give advice about the county
code. Such a board is required by state law. The story
statute, but doesn't name it. The statute is Arizona
All statutes mentioned in this article are available online at
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
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
official building code until January 14, 2005, explained
County Attorney Britt Hanson."
Obviously, county ordinances must comply with state
county ordinances in line with statutes is one of the jobs
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,
where the Supervisors adopted the new code, James Vlahovich
Planning Department head, now Deputy County Administrator)
County has two limited enforcement areas around Sierra Vista
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
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
that it should be treated as an "action item," meaning an
public discussion is not allowed.
One complication may be a difficulty in distinguishing
should go to this board, from appeals that should go to a
Another problem is that state law, ARS 11-862, allows "an
... to determine the suitability of alternative materials and
construction and to permit interpretations of the provisions
code." That law doesn't mention sitting as an appeals court.
State law does let the Board Of Supervisors assign duties to
advisory board. However, if the extra assignment includes
acting as an
"appeals court," then the board will be deciding appeals
from its own
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
State law lets Supervisors adopt a building code if a county
adopted zoning pursuant to this chapter" (ARS 11-861.A).
law also says "Any code adopted pursuant to this article
shall contain a
provision for an advisory board" (ARS 11-862.A). "This
the set of statutes governing building codes, and "shall"
The Herald story makes it clear that the county building
code did not
include a provision for an advisory board. Therefore, was
actually adopted "pursuant to" the governing statutes?
If not, can the Supervisors adopt rules and regulations to
code? State law (ARS 11-863.B) lets the Supervisors "adopt
rules and regulations for the enforcement of any code
adopted under this
article" -- but not to enforce a code that wasn't adopted
If the county has been enforcing rules and regulations that
it had no
authority to pass, what becomes of all the prosecutions
made, and fines collected?
In reality, it is more likely than not that the building
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
Therefore, the Supervisors might consider obtaining an
answer to this legal question.
The supervisors shouldn't ask the County Attorney's office
its own work, especially since that office didn't do its job
ordinance was passed.
It would appear prudent to hire outside counsel, independent
County Attorney's office, with no involvement in county
Perhaps some adjustment could be made to the County
to pay for an investigation which wouldn't be needed if that
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
is how the name is spelled.)
Durgin is also named, in a July 16, 2008 email from the
Department, as the person who is preparing a work session on
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
on property insurance rates." However, as of August 14,
Anderson (then Planning Department head, now retired)
admitted that the
Department still hadn't asked any insurance companies about
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,
Paul Newman moved to form a work group (the Supervisors,
Zoning staff, County Attorney staff, building code experts,
developers, and members of the public) to develop a
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
Supervisor Patrick Call "agreed with the merit of a review
Phase 1 before the implementation of Phases 2 and 3 but did
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
process before the implementation of Phases 2 and 3.
seconded the motion. During discussion Mr. Vlahovich stated
although he hoped six months would be sufficient time for
to collect data for review, he would be more comfortable
months before the review and evaluation. Chairman Call then
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
carried out. In the interim, the Supervisors set an
in-house report by
the Planning Department for April 18. Ron Durgin was chosen
Department to deliver the in-house report.
Durgin, during this period, appeared very solicitous of
like the Southeast Arizona Contractors Association ("SACA").
1, Durgin emailed Lynn Mattingly, the chairman of a SACA
saying "I will list some of the highlights of the regulation
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
will also be available at your March 15th General Meeting to
questions ... on the new regulation," and "this would not be
to the Board of Supervisors until April 18th, allowing time
from the SACA members if needed."
Durgin's work with SACA was not completely out in the open.
copies of his email to other SACA members, Judy Anderson, James
Vlahovich, and Supervisor Call. But Durgin didn't send
Supervisors Richard Searle or Paul Newman. On March 8,
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
address any of the promises, including his own, that were
made in order
to get the code passed. His report merely claimed that the
collecting enough fees to pay the salaries of the people
code (including Durgin's own salary). If the code program
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
another in-house report on August 17, 2007, produced data
"building code" deficits of $216,000 for fiscal year 2004/5,
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
its own way.
The Department did suggest making a request for the 2007/8
code" finances, and a request will be submitted for that and
information. This article will be updated based on the
However, the Department expects to present the updated
2007/8 at a work session being prepared by -- Ron Durgin. A
session prepared by a person evidently biased in favor of
cannot substitute for an comprehensive review by the
staff, County Attorney staff, building code experts,
developers, and members of the public.