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 questions.

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
http://littlebigdog.net/P&ZGroundRules.jpg

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
. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/38/00431-01.htm&Title=38&DocType=ARS

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
mpj@vtc.net

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 session.

4.  Article 16 is reserved for hypothetical future use.

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 more thought.

-- 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 lot?

-- 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 very few.

-- 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 non-residential projects.

-- 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



(from http://littlebigdog.net/SierraVistaSubwatershed.jpg )
on which the tan area shows the part of the sub-watershed within Cochise County; and here's a map


(from http://littlebigdog.net/SierraVistaSubshed2.jpg )
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
. http://www.westernresourceadvocates.org/water/SVS_domestic_well_conservation_June.pdf
and the second map is taken from a plan that the Supervisors passed seven years ago:
. http://www.cochise.az.gov/uploadedFiles/Planning_and_Zoning/Final%20Water%20Policy%20Plan%20%28March%20212006%29.pdf
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
http://littlebigdog.net/WaterProposals.pdf
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
http://littlebigdog.net/PlanningDeptList.htm
-- 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 heels.

-- 1821 through 1824 are about wind and solar energy systems.  I've posted them at
http://littlebigdog.net/ProposedWind&Solar.htm

-- 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 is Amendments.

-- 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.