This is the text of CCIPRA's email wrapping up the subject of the proposed Hazard Abatement Ordinance, sent out the Sunday before the vote.


The HAZARD ABATEMENT ORDINANCE ("HAO") is the only Public Hearing item.  This email discusses seven specific concerns with the draft HAO.

Before anything else, CCIPRA must thank BOS Secretary Katie Howard for her long hours battling recalcitrant computers, County Administrator Mike Ortega for his forward-looking diplomacy, & Zoning Administrator Rick Corley for his diligence in research.  They did what it took to do their jobs right, and they deserve acknowledgment.

Much of what CCIPRA learned came from emails obtained in response to a public records request; this wrapup calls them REmails.

This discussion also relies on material that the Department will present at the BOS meeting on February 8:
-- the "slide show" at
    http://agenda.cochise.az.gov/docs/2011/BOS/20110208_5/88%5F88%5FBOS%20Meeting%202%2D8%2D11%20%5BCompatibility%20Mode%5D%2Epdf
-- the "cover letter" at
    http://agenda.cochise.az.gov/docs/2011/BOS/20110208_5/88%5FBOS%202%2D8%2D11%20HAO%20Staff%20Report%2Edocx
-- and the draft HAO itself at
    http://agenda.cochise.az.gov/docs/2011/BOS/20110208_5/88%5FHAO%20Attachment%20B%2Edocx
Opening those links may require you to have Microsoft Word.  If you prefer plain text, you can see the cover letter at
    http://littlebigdog.net/HAOLetterForFeb2011.htm
and the draft HAO at
    http://littlebigdog.net/HAODraftForFeb2011.htm

In July 2008, the Supervisors gave a simple order to the Planning Department:  work on procedures for recovering the County's costs of clearing up hazardous conditions, and rewrite the ordinance to include ARS 11-268(E)'s schedule for citizens to repay the costs of cleanup.  The cover letter acknowledges (comment Q) that incorporating "the schedule for collection of assessments ... was the motivating force behind this revision."

Amazingly, the latest draft fails that basic assignment.  The collection schedule is in draft regulation Q, but is contradicted in regulation L.  The schedule allows up to ten years for paying assessments, but draft reg L requires payment "within thirty (30) days after receipt ... (or any extension ....)"  That 30-day limit ignores the BOS's original reason for changing the HAO.

The latest draft even adds crime control to the HAO!  The slide show for February 8 defines "Hazard" in terms of safety at first, but then adds conditions which "have the potential of harboring illegal activities."  Will hazard inspectors be police, trying to ferret out illegal activity?  That's not what the Supes ordered.

More "mission creep" shows in the slide show for February 8.
    Page 2 of the slide show says the HAO "is not intended to replace the Solid Waste Disposal Ordinance or Section 1811 of the Zoning Regulations" -- but on p. 5, entitled "Magnitude:  Hazard Abatement Ordinance Enforcement," half the page is about Solid Waste violations.  If Solid Waste is separate from the HAO, Solid Waste numbers don't belong in a presentation about the HAO.
    Page 2 also says the HAO "is not intended to be neighborhood bea[u]tification and aesthetic control measure" -- but pp. 3 & 4 show eight pictures (of five or fewer properties) that don't look hazardous, merely run down.  If the HAO isn't about esthetics, pictures of run-down buildings don't belong in the presentation.

The long process of modifying the HAO -- a year and a half of tweaking the existing HAO, then the County Attorney's office dumping that for a complete rewrite -- wasn't justified by the size of the program.  A REmail from 2008 says the Department was then "budgeted $120,000 each fiscal year to abate hazards.  Since April of 2006 we have paid $79,000 to Southwest Hazard Control to abate hazards (note:  this total does not include the almost $50,000 paid to abate a property in Fry Townsite)."  And the slide show says that since 2008, there have only been six "actual abatements ... fiscal impact $87,745" (and about 30 "Violations/Hazard Inspections" that go to a hearing officer each year, though it's not clear how many of the 30 are HAO violations.)

Today the Supervisors could do what they ordered in July 2008, simply by inserting ARS 11-268(E) into the present ordinance.  It's not clear why that wasn't done when the Supes said to do it.

On to specific concerns mentioned in recent CCIPRA emails:
- 1, regulation A.3 requires you to clean up other persons' property
- 2, reg P evades the Supes' duty to conduct hearings
- 3, reg J evades the Supes' duty to supervise employees
- 4, reg C charges fees without notice
- 5, some definitions don't work for rural areas
- 6, protections of citizens' rights are weak
- 7, the County has dodged real discussion


1, regulation A.3 requires you to clean up other persons' property

Draft regulation A3 includes
    "A person, firm or corporation shall have created a public
    nuisance and committed a violation of this ordinance if such
    person ... without lawful authority, and in a manner that
    constitutes a hazard to public health and safety ... permits
    ... rubbish, trash, weeds, filth, debris or dilapidated
    buildings to remain upon any other private or public
    property in the County not owned or under the control of the
    person ....  [A.R.S. § 11-268.A.3]"
So if you merely see any trash on someone else's property, you commit a public nuisance if you don't clean it up.

The cover letter ignores draft reg A.3; it mentions "dumping on your private land, public land or other private land" -- but then it stops.  A supervisor who relied on the cover letter would be misled.

The word "permits" causes a different problem in draft reg A.2, where it's a public nuisance if anyone "permits ... rubbish ... to remain upon contiguous ... streets and alleys".  CCIPRA worries that property owners not "permitting" dumping on roads might lead to armed confrontations, in rural areas that are already on edge.  A REmail reveals that the County Attorney's office responded "Oh, for heavens sake!"  Many citizens may feel more concern than that about rural violence.

Draft reg A.3 closes by citing "[A.R.S. § 11-268.A.3]", but why?  ARS 11-268A3 -- see
    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00268.htm&Title=11&DocType=ARS
-- does NOT require the "permitting" language; it says nothing about "permitting" trash on another's property.  And if it did, the HAO could ignore it as it has ignored other statutes; see points 2, 3 and 4 below.

However, arguing the matter may be futile.  The County Attorney's office, in a REmail, stated "we are not changing II.A."  Even if the County Attorney's office sets a policy that results in violating the law, only the Supervisors can decide whether to reclaim their authority over policy.


2, draft reg P evades the Supes' duty to conduct hearings

Draft regulation P includes "the Board may, by a majority vote ... appoint a hearing officer to review appeals;" regs E3, J, and K are linked to this.  However, ARS 11-268A2 requires an HAO to include "Provisions for appeal to the board of supervisors on both the notice and the assessments."  The statute does not mention delegating hearings.  The existing ordinance, in place for 24 years, does not allow the BOS to delegate hearings.

Statutes that allow delegating hearings do it by saying so in plain language.  For instance, ARS 11-2006(A) says a BOS "that establishes a civil penalty for violating an animal statute or ordinance may appoint one or more hearing officers to hear and determine such cases."  11-268A2 doesn't have any such wording.

The County Attorney's office, in a REmail, stated "I don't think the Board should appoint a hearing officer".  CCIPRA welcomes that concurrence to CCIPRA's opinion.


3, draft reg J evades the Supes' duty to supervise employees

Draft regulation J says "If an appeal ... is not timely filed, the Hazard Abatement Officer shall prepare ... an itemized listing of the actual cost of removal or abatement, the actual cost of any additional inspections and other incidental costs....  [T]he Chairman shall sign it ....  Board approval ... is not required."  Until December 2010, the draft HAO didn't touch the Supervisors' discretion, which, in the existing ordinance, is complete:  the Supes have discretion over reviewing and signing.

Then in the December 2010 draft, Supervisors become a rubber stamp for employees, and employees are exempt from supervision.  Supervision is, however, the Supervisors' prime legal duty.  See ARS 11-251 -- at
    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00251.htm&Title=11&DocType=ARS
-- where paragraph 1 says the BOS shall "Supervise the official conduct of all county officers ... see that such officers faithfully perform their duties and direct prosecutions for delinquencies, and ... present their books and accounts for inspection."  Draft regulation J nullifies that statute.

The Department may not fully understand draft reg J.  A recent REmail from the Department said "[t]he only item that the Commission might not like is changing Part II.J that the assessment had to be approved by the board and now delegates it to the Chairman of the BOS."  Perhaps the Department didn't realize that the change meant the Supervisors became a rubber stamp for an employee.


4, draft reg C charges fees without notice

Draft regulation C says that after a notice of violation is issued, "Failure by any party to receive the notice shall not be a bar to abatement, assessment of costs or lien of assessment pursuant to this Ordinance.  [A.R.S. § 11-268.A.1]"

It's wrong to charge people money without giving them notice.  In America, "due process" includes notice of a hearing, and an opportunity to be heard at the hearing.  Draft reg C makes the Supes look like they're just trying to pick taxpayers' pockets.

Worse, draft reg C closes by citing ARS 11-268A1, as if that statute said that fees can be assessed without notice.  But if you read it yourself -- see
    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/11/00268.htm&Title=11&DocType=ARS
-- you won't find any such language.  Once again, a draft reg has given an incorrect and misleading citation of state law.


5, some definitions don't work for rural areas:  in particular,
    - Definition 3, "Contiguous Sidewalks, Streets and Alleys" means any sidewalk, street, or alley, public or private, adjacent to the edge or boundary, or touching on the edge or boundary, of any real property.  That works with Definition 15, "Real Property" means buildings, grounds, or lots, as well as contiguous sidewalks, streets, and alleys, located in the County.
    - Definition 6, "Dilapidated Building" means any real property structure that is in such disrepair or is damaged to the extent that its strength or stability is substantially less than a new building or it is likely to burn or collapse and its condition endangers the life, health, safety, or property of the public.

As to contiguous streets and alleys:  in Cochise County many transients dump trash on remote roads.  CCIPRA believes that adjoining landowners shouldn't have to pay for cleaning up a mess they did not create.  To better fit rural areas, the Supes might note that "sidewalks, streets, and alleys" are associated with cities while "roads" and "highways" tend to be found away from cities, so the HAO might define "sidewalks, streets, and alleys" to exclude roads and highways more than, say, 1 mile from city limits.  Developing this idea, or generating a better one, might require work and actual thought, but that's something we pay the Supervisors for.

As to dilapidated buildings:  Definition 6 copies a state law which, Supervisor Searle has noted, isn't a good fit for rural areas having many large acreages with old run-down buildings that are still useable and pose no public danger.  The HAO might try to define "disrepair" and "damaged" to keep old buildings from being labeled as "dilapidated," or to state that buildings on large lots (size to be determined), or a large distance (to be determined) inside a lot, are presumed not to be a public hazard.

REmails show that the Department did some thinking about "lot size" lines, mainly by asking other counties what they did.  That question got nothing useful, but other counties' failure to work on those lines doesn't mean Cochise County shouldn't try harder.

Also, state senator Gail Griffin has introduced a bill to cut the "less than a new building" language, and make the definition something like "'Dilapidated Building' means any real property structure that is in such disrepair or is damaged to the extent that it is likely to burn or collapse and its condition endangers the life, health, safety, or property of the public."


6, protections of citizens' rights are weak

The draft HAO doesn't address how hazard inspectors may gain entry onto private property; it drops the present ordinance's language that "if the officer is not given permission by the owner to inspect, the officer must get a court warrant to inspect the property ...."  ARS 13-3913 says "No search warrant shall be issued except on probable cause."  During 2009, the drafts used "probable cause" wording, but that vanished in 2010.

Draft reg E.3, about hearings on appeals from Hazard Abatement orders, omits much protection of citizens' rights.  It says "The Hazard Abatement Officer shall appear and present evidence of the existence of the Public Nuisance.  The appellant may present evidence controverting the existence of the Public Nuisance.  The hearing shall be informal ...."  That's very vague compared to the specific protections in existing regulations 602, 603, & 604.  Why weaken protection for citizens' rights?

The draft extends most time limits for citizens to 30 days (up from 15), which CCIPRA thinks is a good thing; but when it comes to hearing appeals, the Supes gave themselves "a reasonable time," with no fixed limit.  CCIPRA doesn't think government should give itself special privileges.  The cover letter says "arbitrary deadlines difficult for scheduling, political pressure will force earliest reasonable time."  Citizens may disagree.  Americans know that while our laws should apply equally to everyone, not everyone has political clout to fight unfairness.

When it comes to how specific protections should be, the Supes have said they have "confidence in the present staff," but they've also added "someday we won't be here, so what's going to prevent abuse?"  Nonetheless, no further safeguards appear in the draft the Supes see on February 8.


7, the County has dodged real discussion

The BOS work session that directed the Department to redraft the HAO was in July 2008.  A Planning & Zoning Commission discussion was first set for March 2009, then tabled to June, then August, & December, & March 2010, & April, & finally to May -- but then had only a few questions by three Commissioners, with no general discussion or public input; see the minutes at
    http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/Agendas_and_Meeting_Minutes/PNZ05122010%281%29.pdf
During 2010, CCIPRA and the Department met twice. In July, the then-head of the Department, Benny Young, raised the possibility of great cooperation, but he resigned and cooperation evaporated.  A feeling of cooperation was not fostered by the deputy county attorney who worked most on the rewrite; in a REmail, he says about this writer, "as a policy I don't meet with him."

CCIPRA hoped that when the draft HAO got to the Commission, there would be lively discussion -- but there was barely any.  The Department's cover letter is not fully forthcoming about this; it says "the Commission voted 7-0 (unanimous) with a recommendation of approval to send the Ordinance to the Board of Supervisors."  Actually, the motion was a formality to pass the HAO on WITHOUT discussing its merits.  At the meeting, the Chair said:
    "the best action for this Commission to take is to forward
    to the Board Of Supervisors and to let them dig into the
    minor details ... rather than to go through each one of
    these various items, let's get it to the Board and let them
    and the staff deal with it at that level."
You can (if your computer plays mp3 files) hear the recording at
    http://littlebigdog.net/PNZBasnarDecember082010.mp3
The Commission voted as the Chair suggested.  It's wrong to infer that the Commission really approved what the draft HAO said.

When the draft reached the BOS, they tabled it for a work session on January 4, 2011.  A Department employee had met individually with Supes before the meeting.  A REmail lists the results:
    "The primary issues of concern from their standpoint are:
    "1)  The proposed ordinance is not a one-size fits all.
    "2)  Ensure that we are addressing a hazard and not an ugly building
    "3)  Fire Districts should take more of an active role on dealing with a hazard that the County. [sic]
    "4)  Ensure consistency in the enforcement of this HAO more specifically as it pertains to an urbanized setting vs. in the middle of no where.
    "5)  Provide for a clear definition (commentary) of the intent of this HAO
    "6)  The issue of making property owners responsible for cleaning property that they don't own (adjacent sidewalks & alleys)
    "7)  Not notifying/informing the public especially those citizens that reported a hazard in terms of the process/progress of the complaint.  Provide for a mechanism that would allow citizens to be informed of the abatement process, especially the person that submitted the complaint.
    "8)  Provide a 30 day appeal period.
    "9)  Uncomfortable with Staff having flexibility in the enforcement of this HAO, but at the same time having the flexibility to be lenient and providing means to comply and thus working with the owner on a case by case basis depending on the situation without codifying a regimented process.
    "10)  Provide sufficient time for people to comply with this ordinance beyond the 30 day period.
    "11)  Not comfortable with the definition of dilapidated buildings.
    "12)  The abatement of weeds may be taken out of context.

At the BOS work session on January 4, the Department basically listed which of those changes it would make.  The Supes avoided most details; for instance, Searle wanted to discuss the definition of dilapidated building, but English said that would be "getting way too deep in this."  As a result, the draft HAO still hasn't been the subject of much open debate, even two and a half years into the process.  As far as February 8, the format of BOS meetings doesn't allow any real, two-way give and take with citizens.


This concludes CCIPRA's wrapup; good luck on February 8 to all the citizens who hope for better work than the latest draft HAO.