I.  Background

Under ARS 11-268 (see attachment A) the State legislature gives counties the authority to abate hazards, establish a payment schedule for property owner to reimburse the County for abatement expenses, and place liens on properties to recoup County expenses when not voluntarily repaid by the owner(s).  There has been a hazard abatement ordinance (Resolution 84-65) in effect in the County since October 19, 1984; this was amended in 1987 (Resolution 87-91) to allow liens to be placed on properties on which the County abated hazards.  However, liens have not routinely been placed on properties.  On July 1, 2008, the Board of Supervisors gave staff direction to update Resolution 87-91 to reflect current County staffing and policies, and to provide a systematic approach to recovering County funds via the lien process.  A work session with the Planning & Zoning Commission took place on May 12, 2010.  At the December 8, 2010 Planning and Zoning Commission meeting the Commission voted 7-0 (unanimous) with a recommendation of approval to send the Ordinance to the Board of Supervisors.  At the December 21, 2010 Board of Supervisors meeting the Board voted 3-0 (unanimous) to have a work session on the Ordinance.  The work session took place on January 4, 2011 where discussion of the Ordinance took place in preparation and direction prior to going back to the Board on February 8, 2011.

Attachment B is the proposed Hazard Abatement Ordinance which is intended to simplify and clarify definitions and processes while meeting the new requirements of Statute ARS 11-268:

II.  Revisions to Hazard Abatement Ordinance Resolution 87-91:

Please note that the proposed Ordinance is an amendment to the whole of the currently adopted Ordinance.  The entire Ordinance is new and would replace the existing Ordinance.

Differences between the 1987 Ordinance and the proposed Ordinance:

The table of contents has been removed to match other ordinances.

Chapter 1 Purpose and Scope of the 1987 Ordinance is deleted.

Chapter 2 of the 1987 Ordinance is now "Part I: DEFINITIONS" instead of ENFORCEMENT  The Ordinance deleted two definitions and added fifteen new definitions for clarity.  The definitions chapter has been moved ahead the enforcement chapter for reader clarity.

Part I of the proposed Ordinance consists of definitions.  Note that Dilapated Building is defined as 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;

Also the Hazard Abatement Officer has been clarified as the Zoning Inspector or duly authorized representative.

Chapters 4 through 8 of the 1987 Ordinance have been streamlined and included in a new Part II which describes the definitions and processes for violations, notices of abatement orders, appeals of the notices of abatement orders, and the material removal process.

Part II is the main part of the proposed Ordinance, it establishes at subparagraph (noted below):

        A.  that dumping on your private land, public land or other private land is a violation; that dumping on public or others’ land is also a class 1 misdemeanor;

        At subparagraphs B & C, those cited have 30 days to remove;

        C.  any lienholder has been added to persons to issue a notice in writing;

        C. & D.2  reasonable belief was changed to finding probabable cause;

        D.  spells out what is to be in the order, including an estimate of cost of clean-up, and notice that appeal must be taken within 30 days and that (D.4.) an affidavit attesting to the fact that said material was disposed of in a legal manner;

        E.  provides the appeal process, hearing before board set within reasonable time (arbitrary deadlines difficult for scheduling, political pressure will force earliest reasonable time);

        F.  spells out the process if the owner doesn't appeal (appeal stays enforcement per E.4) or abate F.1.  If the removal or abatement is to be performed by an outside contractor, in retaining a contractor the Hazard Abatement Office shall comply with the County Procurement policy.  In the alternative, removal or abatement may be performed by a State Prison work crew or Cochise County personnel if it is determined by the Hazard Abatement Officer to be feasible, in which case costs will be the actual costs to the County including the time of County personnel assessed at applicable rates;

        G.  establishes that the actual cost of abatement becomes the amount of the assessment against the subject property;

        H.  provides for notice of assessment and a chance to appeal;

        I.  establishes the appeal right;

        J.  provides for a report of assessment as a basis for imposition of assessment.  This must be signed by the Board Chairman before being established as an assessment.  Board approval is not required.  Upon receipt of the Report by the Board, the Chairman shall sign it, with the authority to do so hereby delegated by the Board to the Chairman.  Board approval of the Report is not required.  Thereafter, upon recordation pursuant to Paragraph II.L, the assessment shall become a lien against the property.

<COMMENT BY CCIPRA:  In the original, the preceding sentence is followed, without a paragraph break, by the phrase below, "Request change ... of Supervisors."  However, a paragraph break is appropriate at this point, to clarify that points K through Q were added as a result of the last BOS work session; so CCIPRA has inserted a paragraph break into this text.>

Requested change from the Clerk of the Board of Supervisors;

        K.  establishes a right to hearing on the assessment;

        L.  establishes that in the end, upon recordation, the assessment takes effect.  Clarifies the County as the County Zoning Inspector or his designee and that it shall be recorded instead of may be recorded, upon the Board Chairman signing a Report of Assessment pursuant to Paragraph II.J;

        M.  establishes that the assessment also constitutes a lien against the property;

        N.  notes that the county may foreclose on the lien by forcing a sale;

        O.  establishes that more than one assessment may be imposed on the same property over time, for multiple violations;

        P.  gives the Board of Supervisors the option of appointing a hearing examiner to hear all or some appeals, and

        Q.  establishes the schedule for collection of assessments established by the legislature, incorporation of which in this ordinance was the motivating force behind this revision.

Chapter 3 of the 1987 Ordinance is now ENFORCEMENT instead of DEFINITIONS.

Part 3 of the proposed Ordinance reiterates that wildcat dumping is a misdemeanor, independent of any other enforcement provisions of this ordinance.

Part 4 notes that any remedies in the ordinance are in addition to any other enforcement measures that may be imposed under law.


III.    Recommendation

Staff recommends the Board of Supervisors adopt R-09-02, County Hazard Abatement Ordinance -- amendment to the whole approve the Hazard Abatement Ordinance.