Cochise County 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 information, see
http://littlebigdog.net/ccipra.htm

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.

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 citizens appealed, 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 stores?
-- 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 convenience store?
-- 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 convenience stores?

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, 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
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/1/00214.htm&Title=1&DocType=ARS
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 Group Quarters.

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 matter.

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.