Planning & Zoning Commission meeting, February 13, 2013, work
session discussion of Planning Department proposed changes to County
Zoning Ordinance. Animal husbandry, kennel, and/or, farmers
market, specific statute numbers, writing style, commas, building code
violation of state law, warehousing, purpose, Section 307, use not
permitted is prohibited, anemometers, fences at corner.
The Commissioners present were Jim Lynch
(Chairman), Jim Martzke, Pat Edie, Tim
Cervantes, Carmen Miller, and Liza Weissler (I
may be wrong about one of the last two; I
haven't got their faces down yet). They were
outnumbered by Planning Department employees and
other County employees, including deputy county
attorney Adam Ambrose, Supervisor Pat Call, and
Deputy County Administrator James Vlahovich (on
good authority, pronounced VLAH-h'-vitch.) No
comments by the public were allowed.
The Commissioners did not have definitive
discussions; those will come, eventually, at a
public hearing, when citizens will be allowed to
speak. At the recent meeting, a Department
spokesperson read aloud from the proposed
changes, up through Article 11 (of 24).
Following are a few noteworthy concerns, some
raised by Commissioners, some by this writer.
Other citizens will have concerns of their own.
Now's a good time to contact your Commissioners
about them. For links to much contact
1. In the definition of Animal Husbandry (page
2-2), the old Planning Department game of
changing "and" to "and/or" is back. Animal
Husbandry, now defined as "Facilities, including
kennels, related to the care, raising, and
breeding of animals," would become "... and/or
breeding of animals." The change would make animal husbandry
consist of caring for animals, OR raising them,
OR breeding them -- so by feeding a stray cat,
you could end up spending over $300 for a
hearing and permit (more if you appeal) and committing a Class 2
misdemeanor by not having a permit. Chairman
Lynch asked about this change, but the
Department spokesperson couldn't give much of an
answer; she wasn't in charge the last time the
Department tried this, so she may not have known
The history is interesting. Switching "and" to "and/or" was first tried
years ago, when the Department tried to penalize
some families who were providing "hospice" care to homeless animals. The
Department charged the citizens with violating a
Department "policy" that required a permit for
keeping 7 dogs on under 2 acres, or 10 dogs on
over 2 acres. This was not a
regulation passed by the Supervisors. The
and the Department lost. In 2008 the
Department tried changing the
regulations. Under public pressure, the
Department met with citizens, then told the Commission that some citizens wanted to
limit the number of dogs -- but didn't say that MORE citizens did NOT want to
set a number, felt that this was an animal welfare issue, and thought that
animal rescuers should not be punished by an
expensive permit process. After citizens
exposed the deception in the Department's
report, the Commission didn't approve the
"and/or" change. Since then the Supervisors
have even done away with dog licenses. But now
the Department is again trying to slip through
the "and/or" language again. Lynch said he'd return to this matter at the
next work session, but he's apparently delayed the matter again.
In a related matter, the definition of "Kennel"
has been dropped, but the definition of Animal
Husbandry includes kennels. Why?
2. "And/or" popped up in the definitions of
grocery stores and convenience stores. Here are
three items which don't appear to work well together.
-- Definition on p. 2-3: "Convenience Store - A
retail establishment offering a variety of food,
beverage, household items, and/or gasoline
sales." The "and/or" is pointless; "or" would
do just fine. I don't know of any gas stations
that don't carry a miscellany of small items;
under this definition, are they all convenience
-- Definition on p. 2-5: "Grocery Store - A
retail establishment primarily selling food,
beverages, and household maintenance supplies.
Grocery stores may contain incidental accessory
uses such as bakeries, delicatessens,
pharmacies, movie rentals, postal services,
and/or banking services." That's another
pointless "and/or." Also, what does "primarily"
mean -- is it by the dollar amount of sales?
And how do you tell a grocery store from a
-- Section 603.11 allows "Grocery stores (not
including gasoline sales) and
agriculture-related retail sales where the sales
area does not exceed 2,500 square feet of total
area, including any outdoor storage." Why
confuse sales area with storage area, and why
allow small grocery stores but not small
A similar problem exists with words like "primarily," "including," and
"including but not limited to." See Section 401.03, with an
"including" and an "including but not limited to". Also, Section
404.02. Chairman Lynch commented that this vagueness was bad
practice. He's right. If the Department can't think of the
principle behind a list, the Department should think harder; words like
"such as" or "including but not limited to" invite discretion by
Department employees, but America is, famously, "a government of laws,
not of men," and that principle should not be subverted by encouraging
discretion in the guise of law. As to so many big questions,
guidance is found in Winnie the Pooh: "Haven't thought of
anything, have you? No, neither have I. Think, think,
3. "Farmers Market" is a new definition, on p.
2-5: "An indoor or outdoor area where daytime
sales of locally grown or produced food, fiber,
and/or products take place, and where sufficient
parking, sanitary facilities, and waste disposal
facilities are provided." This definition
raises several issues.
-- As defined, farmers markets include everything produced locally --
even photographs, paintings and
sculpture. The Department can't mean that; can
the Department say what it does mean?
"Think, think, think."
-- Is it necessary to regulate farmers markets?
Someone at the Department must think it's a good
idea, but must every
good idea be made into a law? Has there been a
rash of problems with farmers markets? (Looking ahead,
a Commissioner noted that Section 707, a list of
Special Use Authorizations for Residential
Zoning Districts, does not provide for farmers
markets. The Department said that the omission
would be corrected.)
-- The definition says a farmers market is a
place where X happens, and where "sufficient
parking, sanitary facilities, and waste disposal
facilities are provided." What if a "farmers
market" doesn't have enough parking, restrooms,
and trashbins? Is it no longer a farmers
market, or is it a farmers market that is
violating the regulation? The first choice
doesn't make much sense, but this question needs to be clarified,
perhaps by making the language about parking,
restrooms, and trashbins into a separate
sentence: "Sufficient parking, sanitary
facilities, and waste disposal facilities shall
be provided." Then, if those three items were
not provided, it would be clear that a farmers
market was violating regulations.
-- Under the definition of "farmers
market," even one farmer, selling
an occasional bag of pecans to somebody who
drives up to a farmhouse, counts as a farmers
market. (Similarly, the
definition of "Community Garden," on p. 2-3, does not say how many
participants it takes to make a community
garden.) In the Zoning Ordinance, Section 301.01
includes "When not inconsistent with the context
... the singular number includes the plural
number, and the plural number includes the
singular number." Under state law, singular
includes plural, and plural includes singular;
see ARS 1-214(B), at
Can the Department say clearly how many people
are required for a "farmers market"?
4. The paragraph just above describes what
Arizona laws say, and supports that statement by
giving a link to a specific statute. How would
you like it if, instead of naming ARS 1-214(B)
and giving a link to it, the paragraph just said
"see ARS Title 1"? A
reader would have to search a lot to find the
language. Why create extra work for readers?
At present, when the Ordinance refers to the
Arizona Revised Statutes, it gives a
specific statute number. Merely referring to
the ARS Title containing a statute is a bad
idea, for several reasons.
-- The reason the Department gave for the change
was that state statute numbers change sometimes,
and then the Ordinance points to the
wrong statute. Actually, it's rare for the state to change a
statute's number. For instance, a statute is
unlikely to have its number changed from ARS
123.4 to 567.8. Most
statutory changes are of paragraphs inside a statute; for
instance, ARS 123.4(B) may become 123.4(C). So almost every
renumbering of statutes could be covered by simply giving a statute's
number, without naming subparagraphs
inside the statute, yet people could still find
specific statutory language pretty quickly.
-- The burden of extra work will be one-sided; a
table of the statutes actually involved with an
Ordinance is bound to be created for use by the
County Attorney Office's staff. Only
citizens will have
to work harder to find the actual law.
-- The absence of statute numbers will let
County employees make deceptive arguments. For
instance, it's the laws in Title 11, Chapter 6,
Article 5 that allow creation of a county
building code, so an employee might be tempted
to say generally that the Cochise County
building code was created pursuant to Title 11,
which would be true -- but would
ignore the Supervisors' specific violation of
ARS 11.862 in passing the code without creating an Advisory Board. The County
already has a record of deceptive statements and
conduct about certain items. Some of the
history is written up in various articles on littlebigdog.net.
-- The Commission should do
what it can to avoid placing more burdens on citizens, and to prevent future Department deception.
5. At the beginning of the work session,
Chairman Lynch said he hoped that Commissioners
would not get bogged down in matters of writing
style. This writer agrees, but notes that
language must still be accurate. Let's not say
"that's just a matter of style" to gloss over
problems of substance.
There have been a few examples of this glossing over during the worksessions.
Even commas can affect substance. A famous
example: a merchant, instructing his overseas
agent not to buy a certain item, telegraphed
"No, price too high." But the agent received read "No price too high."
Punctuation is not trivial.
There's a problem in the definition of Group
Quarters on p. 2-5. One sentence says Group Quarters "does not include halfway houses,
offender re-entry residential facilities or
homeless shelters which are included in the
definitions of Offender Rehabilitation Facility"
(which is defined on p. 2-9 in a way that
doesn't seem to cover homeless shelters). Does
Group Quarters include all halfway houses, or
only halfway houses which meet the definition of
Offender Rehabilitation Facility? If you went shopping with
instructions to buy "A, B, or C if less than
$1," you'd phone for clarification. The
Department should clarify the definition of
6. The linkage of the Zoning Ordinance with the
Building Code, a linkage which the County
Attorney's office has denied exists, is shown by
a new definition on p. 2-7: "Lot Development
Administrative Modification -- A site
development standard modification approved
according to the procedures and criteria set
forth in Article 17 herein." It's Article 17
that, under state law, administers the building
code which the County Supervisors passed in
violation of law. It's Article 17 which makes
the Commission complicit in the violation of law.
There are many more examples in the Ordinance. For instance, Section 508 refers to "the ordinance
establishing building codes."
7. P. 2-14 includes "Wholesaling, Warehousing,
Distribution or Storage -- The sale or storage
of manufactured products." Chairman Lynch noted
that grain is commonly "warehoused" but is not
manufactured, and the Department responded that
"manufactured" will probably be stricken from
the definition. The definition will then become
"The sale or storage of products," presumably as
opposed to "raw materials."
8. P. 2-14 defines use as "The purpose for
which land or a building is occupied,
maintained, arranged or intended." You mean, just because I intend to use land for
some purpose, I'll be treated as using it for
that purpose now? Does that make sense?
9. There are no changes in Article 3, "General
Provisions," of the draft, so no particular
notice was taken of them. However, Section 307, "Uses
Prohibited," contains the infamous
language "Any use not permitted in a district
... is specifically prohibited ...." Imagine
that, in America: if we don't permit it, you're
prohibited from doing it. Years ago, we tried to
get the County to explain that language. All we got was "some other counties
have that language," an answer which invokes the
mothers' question, "If all the other children
jumped off a cliff, would you do it too?" Why
should the County prohibit any use it
hasn't already thought of and permitted? Since
when did thinking faster than government become
a problem to be outlawed?
10. In Article 6, about property uses in Rural
Zoning Districts, Section 603.14 says
anemometers are permitted as a temporary use for
up to three years. Some Commissioners wondered
what kind of anemometers are meant -- for
instance, anemometers that are a student
project? The Department says it will clarify the
11. Section 606.01, about rural property uses "allowed without the establishment of a
permitted principal use," allows "Fences six
feet in height or less. Setbacks do not apply;
no permit required unless on a corner lot."
Commissioner Martzke mentioned a difficulty in
applying that language to a corner lot which he
owns. Part of the problem seems to be the
broad reference to "corner lots" instead of
"fences within X feet of a corner." The Department said it will look
at the problem.