This is the text of CCIPRA's email wrapping up the subject of the
proposed Hazard Abatement Ordinance, sent out the Sunday before the
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
-- the "slide show" at
-- the "cover letter" at
-- and the draft HAO itself at
Opening those links may require you to have
Microsoft Word. If you prefer plain text, you
can see the cover letter at
and the draft HAO at
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 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
More "mission creep" shows in the slide show for
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
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
- 1, regulation A.3 requires you to clean up
other persons' property
- 2, reg P evades the Supes' duty to conduct
- 3, reg J evades the Supes' duty to supervise
- 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
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
buildings to remain upon any other private
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
-- 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
2, draft reg P evades the Supes' duty to conduct
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
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
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
-- 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.
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
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
-- 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:
- 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
- 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
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
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
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
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
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
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
"The primary issues of concern from their
"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
"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
"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
"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
This concludes CCIPRA's wrapup; good luck on
February 8 to all the citizens who hope for
better work than the latest draft HAO.