THE DRAFT HAZARD ABATEMENT ORDINANCE
- upcoming Planning & Zoning Commission meeting Wednesday Dec 8
- CCIPRA's meeting with the Planning Department on Monday Dec 6
- short discussions of remaining issues
- some language from statutes and the rules for civil trials


COUNTY PLANNING & ZONING COMMISSION meets 4 pm WEDNESDAY, DEC 8 -- the agenda is at
http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/12%2008%2010%20Agenda.pdf
-- will include a public hearing on the Planning Department's draft rewrite of the Hazard Abatement Ordinance (HAO); any Commission recommendations will go to the County Supervisors on December 21.

CCIPRA had a discussion about the HAO with the Department on Monday, December 6.  That was the first meeting between CCIPRA and the Department since July 13.  After the July 13 meeting, former Department head Benny Young emailed CCIPRA that he would recommend tabling the draft HAO at the P&Z Commission meeting on July 14, because the Department "cannot do justice to the issues you have raised before tonight's Commission meeting."  The Commission tabled the HAO as Young asked.  However, from then until December 6, there were no more discussions between the Department and CCIPRA about the HAO; the draft on the agenda for December 8 is very similar to what was discussed on July 13.

The December 6 meeting was attended by Deputy County Administrator James Vlahovich, Department honcho of the HAO Rick Corley, and Carlos De La Torre, who was introduced as "the new Benny [Young]," i.e. the new Department head.

The meeting made some progress but could have made more if appointed deputy county attorney Britt Hanson had attended.  The County employees had copies of Hanson's opinions, & often seemed reluctant to say anything which Hanson hadn't already approved.  The meet was cordial, and the employees did their best, but their hands seemed to be tied.  It's hard to conduct a real discussion where one side can't vary from the script provided by someone not present; and the county attorney's office shouldn't be able to hamstring policy discussions.

The Department is apparently going to meet with attorney Hanson before the Commission meeting on December 8.  It's possible that the draft presented at the meeting will, to some extent, reflect the discussion of December 6, so the effort wasn't wasted.  But many issues are still in dispute.


SHORT DISCUSSIONS OF REMAINING ISSUES.  All relevant parts of ARS 11-268 are provided after the end of these short discussions.

PART I OF THE DRAFT:  DEFINITIONS

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.
- AT THE DEC 6 MEETING, the Department relayed that attorney Hanson felt the definition was sufficient.
- CCIPRA COMMENT, the definition is from ARS 11-268(J), which isn't a good fit for rural areas filled with large acreages that have old buildings which are run down but are useable and pose no danger to the public.  To better suit rural areas, the HAO might define "disrepair" and "damaged" so as to keep old buildings from being easily labeled as "dilapidated," or the HAO might state that buildings inside large (pick a number) acreages are presumed not to endanger the public.  This is the kind of issue which the Commission has begun to discuss; simply copying statutory language may be "sufficient," but the Commission may want to do more than get by with just "enough."

DEFINITION 12, "Owner" means ... a record owner of real property ... and includes a person holding equitable title ...
- CCIPRA COMMENT, the definition should include "lienholder," to follow ARS 11-268(A)(1), which requires notice to "the owner, any lienholder, occupant or lessee."
- AT THE DEC 6 MEETING, the Department appeared receptive to this problem.

DEFINITION 14, "Public nuisance" means ... a hazard to the public health and safety as determined by the Hazard Abatement Officer.
- AT THE DEC 6 MEETING, the Department relayed that Hanson found no problem with that language.
- CCIPRA COMMENT, the definition should add "or at a hearing if one is requested."  The existing language doesn't remind citizens that they can request hearings, and the County should not write any regulation which requires an attorney to understand.

PART II OF THE DRAFT

- REGULATIONS NOT SUITED TO RURAL AREAS

II.A.  A person ... shall have ... committed a violation of this ordinance if such person ... 2. Places, permits, or provides for rubbish [etc.] to remain upon contiguous sidewalks, streets and alleys ... which are dedicated and open to the public. [A.R.S. § 11-268.A]
- AT THE DEC 6 MEETING, the Department relayed that Hanson was satisfied with that language.
- CCIPRA COMMENT, here, as with Definition 6 ("Dilapidated Buildings"), simply copying ARS 11-268(A) is not enough.
- - In many rural areas, there is a plague of dumping obnoxious trash, and property owners should not have to pay for a problem that does not occur on their land.
- - "Permits" implies that a property owner must actively attempt to forbid dumping on roads which he doesn't own.  This could lead to armed confrontations.
- The County could try to adapt the statutory language to suit Cochise County.  For instance, "sidewalks, streets, and alleys" are terms typically used in and near cities and developed house tracts, while "roads" and "highways" tend to be more rural.  The HAO might define "sidewalks, streets, and alleys" to exclude roads and highways over, say, 1 mile from city limits or from a developed subdivision.  That would comply with the statute, yet treat rural areas separately from urban.  This is an issue which the Commission has begun to discuss; Hanson's satisfaction with language which ignores the issue does not help the Commission much.  Moreover, this is an area which Benny Young was going to explore after July 13; it's disappointing to see a policy frustrated because the advising attorney doesn't care about it.

- LANGUAGE ABOUT NOTICE AND DEADLINES

II.B.  A person, firm or corporation shall ... abate a public nuisance ... within 30 days after mailing or personal service of a Notice and Order to Abate .... [A.R.S. § 11-268.A.1]
- AT THE DEC 6 MEETING, the Department relayed that Hanson saw no reason to change this language.
- CCIPRA COMMENT, the draft doesn't follow the statute, although the bracketed citation to ARS 11-268A1 at the end of the draft implies that it does. The statute says "The notice shall be given not less than thirty days before the day set for compliance" -- AT LEAST 30 days, though the ordinance gives AT MOST 30 days.  It's not clear why Hanson would imply that the statute agreed with his change to it.
- Another issue, on which the Commission spent a good deal of time when it last discussed the draft, concerns how to get service.  The Commission discussed many issues that are already covered by existing law, such as Civil Rule 4.1, about service of papers in court cases; at the very end of this document, below the text of ARS 11-268, much of Civ. R. 4.1 is provided, to show how comprehensive it is.
- Another issue is "counting" days when service is by mail and a citizen must respond within a certain time.  ARS 1-243 says:
- - A.  Except as provided in subsection B, the time in which an act is required to be done shall be computed by excluding the first day and including the last day, unless the last day is a holiday, and then it is also excluded.
- - B.  In cases in which notice of a decision ... must be given to a petitioner and in which the petitioner must file a notice of appeal of such decision within a time certain of less than ten days, such time shall be computed starting with the day after the day during which the notice of decision is received by the petitioner by personal service or registered or certified mail.
- That language isn't pretty, but it does cover the bases.  CCIPRA was hoping that after its July 13 meeting with the Department, the Department would explore the possibility of integrating general law into the HAO.  That would make the HAO much shorter.

II.C.  Upon finding probable cause that a violation of this
ordinance has occurred, the Hazard Abatement Officer shall issue a notice ....  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. § 11-268.A.1]
- AT THE DEC 6 MEETING, the Department relayed Hanson's statement that this language is intended to apply when a person evades service.
- CCIPRA COMMENT, whatever II.C intends, it is deceptive in implying that ARS 11-268A1 allows the County to collect fees from a person who did not get notice of a violation.  ARS 11-268(A)(1) does not say anything like that; it includes "Any such ordinance [i.e. about abating hazards] shall require and include:  1.  Reasonable written notice ... not less than thirty days before the day set for compliance ....  The notice shall be either personally served or mailed by certified mail ....  If the owner does not reside on the property, a duplicate notice shall also be sent to the owner at the owner's last known address."  It is a complete mystery how the draft can say that ARS 11-268A1 allows the County to collect a fine without giving notice.

II.D.  The Notice ... shall include ... 7.  A statement that the owner ... shall have fifteen (15) days ... to appeal ....
- CCIPRA COMMENT, 15 days may not be enough for someone who's traveling or sick; why not 30?  The same comment goes for E.1, and H, and wherever a time limit is set for citizens to act.
- AT THE DEC 6 MEETING, the Department indicated that allowing more time would be considered.

- LANGUAGE ABOUT APPEALS

II.E.3.  Upon receipt of the Notice of Appeal, the [BOS] shall, within a reasonable time, place the matter on the agenda ....  The hearing shall be informal ....  The Board shall decide the appeal, and its decision shall be final.
- CCIPRA COMMENTS:
- - 1, Paragraph II.K contains similar language about the conduct of hearings, and this discussion applies to II.K as needed.
- - 2, By placing strict deadlines on citizens, but giving itself whatever amount of time is "reasonable," local government appears to be placing itself above mere citizens.
- - 3, "[I]ts decision shall be final" implies that no appeal to court is available.  The ordinance will be read by ordinary citizens who may not have a lawyer to tell them that "final" implies "appealable in court."  Why not add a phrase so that II.E.3 ends on the lines of "The Board shall decide the appeal, and its final order shall be appealable to court."
- - 4, several specific guarantees of due process in Section 603 of the existing ordinance have been removed, and should be restored.  There's no good reason not to tell citizens:
- - - Sec. 603(c), Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this case.
- - - Sec. 603(d), Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
- - - Sec. 603(f) lists rights of parties, including "To call and examine witnesses on any matter relevant to the issues of the hearing" and "To impeach any witness regardless of which party first called him to testify."
- The Department has not pointed to any problem caused by the inclusion of those specific guarantees.  They should be kept in the HAO, just as they exist.
- AT THE DEC 6 MEETING, the Department did not relay any response by Hanson to the above concerns.

II.E.4.  If the Board's decision is adverse to the appellant, the date of compliance ... shall be extended by the number of days elapsed between the filing of the notice of Appeal and the rendering of the Board's decision.
- CCIPRA COMMENT, at the July 13 meeting, Benny Young agreed that this language was a mess, and needed fixing.  A long discussion could not decide what the language meant.  Why subject citizens to such a mishmash?  Just an extra adjective or two would fix it.
- AT THE DEC 6 MEETING, CCIPRA's concern was noted, but apparently Hanson gave no written instructions on how to respond.

- LANGUAGE ABOUT POSSIBLE "HEARING OFFICERS"

II.E.3, discussed above, also includes that upon an appeal, "the [BOS] shall, within a reasonable time, place the matter on the agenda ... or ... refer the appeal to the hearing officer...."
- CCIPRA COMMENTS:
- - 1, Paragraph II.K contains similar language, and II.P adds that the "Board may, by a majority vote ... appoint a hearing officer to review appeals of Notices to Abate and/or Notices of Assessment.  The hearing officer shall hold hearings ... and prepare recommendations ... for action by the Board ...."
- CCIPRA COMMENTS:
- 1, CCIPRA objects very strongly to delegating appeals to a hearing officer.  ARS 11-268A3 says the BOS should hear these cases, and that makes sense in all parts of the county.  Each Supervisor is accountable to the voters for making bad or hasty decisions; a Hearing Officer is appointed, not elected, and has to satisfy a constituency of only one person, the one who made the appointment.  Citizens will be better served if the Supervisors do the job that the statute assigns to them.
- - 2, Even if the Board were allowed to delegate its duty, the vote to delegate should be unanimous, not just a majority.  If any Supervisor wants to do his or her statutory duty, the other Supervisors shouldn't be able to prevent it.
- - 3, The draft provides no standards for BOS review of the proceedings if a hearing officer is used.  Even judges have fallen asleep during trials, and Supervisors don't receive the legal training of judges.  Each Supervisor should be required to attentively read or listen to all transcripts and other evidence, and certify to doing so, before participating in a decision.
- AT THE DEC 6 MEETING:  the Department did not relay any response from Hanson.

- LANGUAGE ABOUT FINES AND FEES

II.F.1  The costs assessed for removal or abatement shall not exceed the actual costs and incidental expenses thereof....  In the alternative ... costs will be the actual costs to the County plus the time of County personnel assessed at applicable rates.
- AT THE DEC 6 MEETING, the Department clarified that the County personnel involved were paid for 40-hour weeks.
- CCIPRA COMMENTS:
- - 1, the cost charged cannot be "the actual costs ... plus" anything; the charge must be "the actual costs."  State law does not allow the County to make a profit from citizens by charging more for a service than its actual cost.
- - 2, the actual cost charged cannot include the hourly wages of County personnel who would be at work anyway.  When an employee would be at work anyway, there's no extra cost to the county for assigning the employee to any particular duty.

CONCLUSION:  CCIPRA hopes that the P&Z Commissioners consider these issues as fully as required, and not let policy decisions be based on the advising attorney's attitude toward them.


APPENDIX 1, RELEVANT PARTS OF ARS 11-268

The Department's "packet" for the P&Z Commission includes the complete text of ARS 11-268.  However, that statute runs into three pages, and not all of the statute matters to the HAO.  Here's a condensation of the parts of the statute that matter to the remaining disputes about the HAO:
- A.  The [BOS] by ordinance, shall compel the owner, lessee or occupant of buildings, grounds or lots located in the unincorporated areas of the county to remove rubbish, trash, weeds, filth, debris or dilapidated buildings which constitute a hazard to public health and safety from buildings, grounds, lots, contiguous sidewalks, streets and alleys.  Any such ordinance shall require and include:
- A.1.  Reasonable written notice to the owner, any lienholder, occupant or lessee.  The notice shall be given not less than thirty days before the day set for compliance and shall include the estimated cost to the county for the removal if the owner, occupant or lessee does not comply.  The notice shall be either personally served or mailed by certified mail to the owner, occupant or lessee at his last known address, or the address to which the tax bill for the property was last mailed.  If the owner does not reside on the property, a duplicate notice shall also be sent to the owner at the owner's last known address.
- A.2.  Provisions for appeal to the board of supervisors on both the notice and the assessments.
- A.3.  That any person, firm or corporation that places any rubbish, trash, filth or debris upon any private or public property ... not owned or under the control of the person, firm or corporation is guilty of a class 1 misdemeanor and, in addition to any fine ... is liable for all costs which may be assessed pursuant to this section for the removal of the rubbish, trash, filth or debris.
- B.  The ordinance may provide that if any person with an interest in the property, including an owner, lienholder, lessee or occupant of the buildings, grounds or lots, after notice as required by [A.1], does not remove the rubbish, trash, weeds, filth, debris or dilapidated buildings and abate the condition which constitutes a hazard to public health and safety, the county may, at the expense of the owner, lessee or occupant, remove, abate, enjoin or cause the removal of the rubbish [etc.]
- C.  The [ordinance] may prescribe ... a procedure for such removal or abatement and for making the actual cost of such removal or abatement, including the actual costs of any additional inspection and other incidental costs in connection with the removal or abatement, an assessment upon the [property].
- D.  The ordinance may provide that the cost of removal, abatement or injunction of the rubbish [etc.] ... and associated legal costs be assessed ... upon the property ....  The county shall record the assessment in the county recorder's office ....  A sale of the property to satisfy an assessment ... shall be made on judgment of foreclosure and order of sale....
- ...
- H.  If a county removes a dilapidated building pursuant to this section, the county assessor shall adjust the valuation of the property ... from the date of removal.
- ...
- J.  As used in this section, "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.


APPENDIX 2, CIVIL RULE 4.1, for service in civil suits
- (a)  All process may be served anywhere within the territorial limits of the state.
- (b)  The summons and pleading being served shall be served together....
- ...
- (c)(2)  An individual ... that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons.  To avoid costs, the plaintiff may ... request that the defendant waive service of a summons.  The notice and request:
- - (A) shall be in writing and shall be addressed directly to the defendant ... ;
- - (B) shall be dispatched through first-class mail or other reliable means;
- - (C) shall be accompanied by a copy of the complaint ... ;
- - (D) shall inform the defendant ... of the consequences of ... failure to comply with the request;
- - (E) shall set forth the date on which the request is sent;
- - (F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent; and
- - (G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
- ...
- (d) Service upon an individual from whom a waiver has not been obtained and filed, other than those specified in paragraphs (e), (f) and (g) ... shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the pleading to an agent authorized by appointment or by law to receive service of process.
- (e) Service ... Upon Minors....
- (f) Service ... Upon A Minor With Guardian or Conservator....
- (g) Service ... Upon Incompetent Persons.
- ...
- (k) Service ... Upon Corporations, Partnerships or Other Unincorporated Associations....
- ...
- (m) Alternative or Substituted Service. If service by one of the means set forth in the preceding paragraphs of this Rule 4.1 proves impracticable, then service may be accomplished in such manner, other than by publication, as the court, upon motion and without notice, may direct....
- (n) Service by Publication; Return. Where the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication ....
- (o) Service by Publication; Unknown Heirs in Real Property Actions....