Cochise County Planning &
Zoning Commission, work session, Planning Department, March 13, Call To
the Public, Open Meeting Law, poor advice from County Attorney's
Office, Article 17, enforcing building code, Article 307,
what's not permitted is forbidden, Sierra Vista Sub-Watershed, water
regulations, city regulations in rural areas
At the Cochise County Planning & Zoning Commission work session on
March 13, ne major "sleeper" turned up: the proposed
water regulations for rural areas near but outside Sierra Vista. For
details, see paragraph 6 below. This item will probably cause
major public interest.
Eight Commissioners showed up (I don't know if
County Supervisor English has appointed the
third Commissioner for her district.) Four
citizens showed up, even though no public input
would be allowed. The County Attorney's Office
(CAO) employee attending was Britt Hanson; his
duty was to advise the Commission on legal
1. Lynch did well as Chair at the beginning of
the meeting, later made a mistake that the CAO
should have stopped, then bounced back.
Lynch began well, with a slide show of meeting
rules. See the main slide at
Lynch also did well by advancing the Call To the
Public ("C2P") forward from the end of the
meeting, where the agenda put it, to before the
work session. No public good can come of not
letting citizens speak until after a meeting's
business is concluded, and placing the C2P at
the end of meetings must discourage citizens
from attending. Lynch did well to advance the
C2P, but he'd have done better to always place
the C2P at the beginning of an agenda. Citizens
-- here's the main point-- deserve that
respect. They are volunteering their time too.
After Lynch announced that he would move the C2P
forward, one citizen (Jere Fredenburgh)spoke;
she took a few seconds to mention the state
requirement that a county building code include
an Advisory Board, which our code doesn't
include. She did not criticize Lynch.
But then Lynch responded to her statement --
well, sort of responded; he issued a rant on a
subject that Fredenburgh hadn't raised --
thereby violating the Open Meeting Law (OML). The
OML says "At the conclusion of an open call to
the public, individual members of the public
body may respond to criticism [but] shall not
discuss ... matters raised during an open call
to the public unless the matters are properly
noticed for discussion and legal action."
That's from ARS 38-431.01(H), at
The OML's purpose is to enable citizens to
speak, not to let public officials, even unpaid
volunteers like the Commissioners, use citizens'
statements as springboards for hobby horses of
their own. That's why ARS 38-431.01(H) only lets
officials respond to a C2P if they are personally attacked, which Lynch wasn't.
The CAO employee present to advise the
Commission let Lynch down by letting him violate
the OML. The employee's duties include stopping
a Commissioner who is violating the OML.
Failure to carry out these duties fits into a
pattern which these updates will continue exploring.
2. The work session was mostly taken up by a
Planning Department spokesman reading through
the proposed changes. The stack of pages,
printed on both sides, is about 3/4" thick, so
(con o sin su permiso, a comment aimed at
language cognoscenti) I haven't scanned and
posted all of it, but if people ask nicely,
perhaps the Department will provide a few more
sets free. Meanwhile, Anyone who wants a few
pages scanned can email me at
3. Articles 12 through 15 set out general
regulations (on things like setbacks, RV
parking, and so on) for GB (General Business,
Article 12), LI (Light Industry, Art. 13), HI
(Heavy Industry, Art. 14), and PD (Planned
Development, Art. 15) districts.
-- Articles 12-16 repeatedly mention Article 17,
the Zoning Ordinance's "enforcer" for the
Building Code in particular (Article 23,
"Enforcement," is about enforcing the Zoning
Ordinance as a whole). The CAO has admitted that the
building code was not formed pursuant to the
applicable law, and the Supervisors have set a
work session to discuss the problem.
Unfortunately, no Commissioner asked about the
impropriety of enforcing a building code that
was not formed pursuant to law.
-- Each of articles 12-16 includes a list of
uses permitted in a district, and there's a lot
of overlap between lists; it would be much
easier if people could check one list to see
where a use was permitted, instead of sending
people to four different lists. Also, forming
one central list would point up the infamous
Article 307 of the building code, which says that
if the County, aka the Soviet Of Cochise,
doesn't permit a property use, it's prohibited.
-- The writing needs improvement. Often,
instead of a connector like "and," "or," or
"and/or," the writing simply runs items together
with a slash; to make up an example,
"cars/trucks." The Department should use words,
not symbols of unclear meaning.
-- 1203.02, "Setbacks, Principal and Accessory
Structures/Uses," section (A) is about GB Zoning
Districts which abut one set of other zoning
districts and require a minimum setback of 10',
and (B) is about GB districts which abut a
different set of zoning districts and require a
minimum setback of 80'. Chairman Lynch asked
about the 10' language, and the Department
explained that it was a change to reduce the
amount of routine paperwork. It's not clear
what would happen if a GB district abutted two
districts, one requiring a 10' setback, the
other requiring 80'.
-- 1302.08, "Animal Husbandry Services,"
Commissioner Edie asked about commercial
kennels. The Department said meetings are being
set up with the sheriff about animals.
-- 1303.02, Commissioner Edie asked about the
asterisked note "The minimum setbacks for
Special Uses shall be 160-feet." The answer was
inaudible to me.
-- 1404.02(D), Commissioner Bemis asked about
the meaning of "rented out" (language which is
repeated elsewhere). It's not clear if "rented
out" means for living, or as a vehicle.
-- 1502.19, "Home occupations accessory to
residential uses" became just "home
occupations," with no qualifier. Nobody at the
meeting asked about the purpose of this change.
It's not clear what the intent is.
-- 1502.50, anemometers. Commissioner Weissler
asked about this, and the Department answered that the definition of anemometer will
be clarified to allow school projects, etc.;
this was a followup from the Feb 13 work
4. Article 16 is reserved for hypothetical
5. Article 17, Administration
-- 1704.01 includes "Re-establishment of a
discontinued non-residential use shall not
require a permit for the same use, provided that
the discontinued use was established through the
permitting process in place at the time of
establishment, and that no new construction is
proposed." Presumably, if no permitting process
was in place when a discontinued usage was
established, no permit would be required now
unless new construction were proposed. The
Department commented that 1704.01(A)
this is "probably a building code issue," which I note because it shows
Department awareness of the linkage between
Article 17 and the Building Code.
-- 1704.01 includes a "List Of Exemptions From
Permit Requirements For Single Family
Residential Dwellings." Item A is "Re-roofing
(when no structural changes are PROPOSED OR ANY
REINFORCEMENT IS REQUIRED TO ADD HEAVIER ROOFING
MATERIALS), re-siding or replacement of exterior
trim." (The caps are mine.) Probably it meant
"no reinforcement is required," not "any."
-- Commissioner Edie asked about item P on
1704.01(a)'s list, patio slabs. She wanted to
know why, just to add a concrete slab, she must
provide a map of all structures on her property.
After some back-and-forth with the Department,
Chairman Lynch suggested making this a separate
item for discussion.
-- Commissioner Weissler asked how the list
would cover a building with an external circular
staircase. The Department answered, "That's in
the building code."
-- Commissioner Bemis asked about Section 1712,
permits for living in manufactured homes. The
Department answered, as best I could hear, SB
1698, or maybe 1598, about fees; however, since
the proposed SB numbers peak out at 1482 so far,
I must have misheard.
-- 1716, "Factors For or Against a Proposed
Special Use," in describing the factors against
granting a special use permit, changed "public
protest" to "significant public protest." There
was no comment on this. Adding "significant" may
be unwise. If public servants discount
neighbors and their objections as "not
significant," the disrespected neighbors will
surely turn up the volume.
-- 1716.02(A), in listing factors in favor of
granting a special use, includes that the use
"is consistent with the intent, goals, policies
and/or land use designations" of various plans
that may have been developed. This is another
reason to shun "and/or." As written, a proposed
use could be consistent with just one of several
items, but contradict others -- and still be
listed as a factor in favor. 1716.02(A) needs
-- 1716.02(B) lists as a factor in favor of
granting a special use, that the use "be
compatible" with existing development. The
present wording is that the use be
"harmonious." The intent of the change is
unclear, but it does seem to indicate looser
standards for getting approval.
-- "Temporary uses" have been moved from Article
18 to Article 17, section 1720.
6. Article 18, Site Development Standards
(especially the expansion of rigid water codes
from Sierra Vista to the entire S.V.
sub-watershed; see section 1820.02 below.)
-- 1806.01 says that section 1806's purpose is
"to establish minimum standards for ...
landscaping on the undeveloped portion of
parcels or within the interior of large parking
areas." Luckily, 1806.02(A) exempts "1,
Single-household dwelling sites in Growth
Category Areas; 2, Uses within the Category C
and D areas" -- language which, when translated
using Section 401.01, appears to mean that
there's an exemption from landscaping
requirements for all single-household dwelling
sites in the county, and for all uses in Rural
Community or Rural areas.
-- 1815.03 says "Stables/barns (both enclosed
and unenclosed), corrals, and piles of manure
and areas where livestock may concentrate such
as feeding and shade structures shall be set
back from the property line a minimum of
50-feet. Perimeter fences are not considered
corrals unless used to confine animals within 50
feet of the property line." I'm not sure
how a perimeter fence can be more than 50' from
a lot line; anyway, if a property is
only 104' wide (common for a half-acre lot in a
rural area), does a 50' setback restrict stables
and barns, and animal intake and output, to a 4' strip down the center of a
-- 1817.02(B) says that "The use of groundwater
for new golf course irrigation shall be
prohibited." We've seen some joy at this
limitation on golf courses, which are an
incredible waste of water for the benefit of a
-- Old section 1820 was relabeled as 1819, but
the subsections remain numbered 1820.01, etc.
They'll eventually be renumbered?
-- 1820.01 is entitled "County-Wide Water
Conservation Measures," and begins "The
following measures will be applied to
residential and non-residential uses". That's
throughout the County.
-- 1820.01(A) says "New pools will be required
to have a cover." Does "pools" mean swimming
pools, duck ponds, stock tanks, or ?.
-- 1820.01(B) says "For all projects which
require urinals pursuant to [state law or county
regulations], the required urinals shall be
waterless urinals. This regulation is
applicable to new construction only. Single and
multiple-household dwellings are exempt."
-- 1820.01(C) gives landscaping standards for
-- 1820.01(D) says "Rainwater harvesting systems
are encouraged for all residential and
non-residential uses." One of the Commissioners
noted that if you harvest all the rain water,
the aquifer won't be renewed.
-- 1820.02, unlike .01, does not apply to the
entire county; it's titled "Water Conservation
Measures -- Sierra Vista Sub-Watershed Overlay
Zone." The sub-watershed is huge compared to
Sierra Vista; it extends to Naco, the south and
east parts of Bisbee, and Tombstone. Here's a map
on which the tan area shows the part of the
sub-watershed within Cochise County; and here's
on which red shows incorporated areas (including
Ft. Huachuca) and blue shows unincorporated
areas within the sub-watershed. The first map is
taken from the report at
and the second map is taken from a plan that the
Supervisors passed seven years ago:
That plan was passed during a real estate boom,
when Supervisor Call was proclaiming that
"growth is inevitable" and that an average
person uses 312 gallons of water per day (about
4x the true figure), and County gummint was
Sierra Vista-centric; see, e.g., the sentence
that "[t]he regional aquifer of the plan area is
the County's sole source of water for
residential and non-residential development," on
p. 6 of the plan cited above.
The water proposals for the sub-watershed are
very detailed. They're posted at
The Department said the proposals for the
sub-watershed are borrowed largely from the
Sierra Vista and Tucson codes.
Chairman Lynch deserves credit for saying, after
some discussion, that the water sections should
be dealt with in separate hearings, or else will
"create a monster." Lynch was surely right
about the fuss the proposals will probable cause
in rural areas far outside Sierra Vista. Another
reason for separate hearings, that Lynch didn't mention, is that at
the Commission's January meeting, when the
Department presented its slide show listing
major changes in the Zoning Ordinance -- see
-- the list didn't mention these drastic changes. The Department may have hoped for a vote that night, but the
Commissioners insisted on having work sessions,
which gave them a chance to take a careful look.
Thanks to the Commissioners for digging in their
-- 1821 through 1824 are about wind and solar
energy systems. I've posted them at
-- 1825 is Medical Marijuana Uses.
7. Article 19 is Signs. The Department says
all content-based restrictions have been
removed. However, 1902.01(B) lists types of
signs which are exempt from permits, including
signs for some, but not all, types of
businesses. The content-based issue requires
more study. In any case, Chairman Lynch said he
had not read Article 19, and it will be deferred
to another work session.
8. Article 20 is Exemptions, Exceptions and
Nonconformances; 21 is Boards Of Adjustment; 22
-- 2204.02(D), Commissioner Bemis asked if the
requirement that a map and legal description be
"prepared and certified" by a licensed "Arizona
Registrant" (not the same as a surveyor or
engineer) could be changed to just "certified."
The Department agreed.
9. Article 23 is Enforcement; 24 is Severability.
10. No Commissioner asked about the proposal's
removal of all actual statute numbers, and
replacing them with general references to
"Titles" of state law. Removing specific
statute numbers is a bad idea: it's
unnecessary, it loses information, it creates
unnecessary work for citizens, and the absence
of actual statute numbers would let County
employees make deceptive arguments. This will
be discussed further.
11. Sometime, probably after another work
session, the Department will prepare a list of
all questions raised by Commissioners. Note,
however, that these work sessions weren't for
discussion among the Commissioners, but were
mainly a basic read-through by the Department.
I think I picked up a little Department
impatience with questions from the
Commissioners; I hope I was wrong, and when the
Commissioners begin their own discussion, I hope
there's no attempt to limit their questions to
items they raised during these sessions.