I.  Complete examination of the Cochise County Hazard Abatement Ordinance enacted in 1987, and the changes proposed in 2009

This is a section-by-section comparison of the enacted ordinance and the proposed changes.  A condensed version, discussing only the most significant proposed changes, is online at
    http://littlebigdog.net/HazOrdDigest.htm

For suggestions or comments, email mpj@vtc.net

The goal of this digest is to make citizen input easier.  Citizen input matters.  For instance, in the 1987 enactment, Sections 604(g)(2) and (3) had different titles, but were identical, word for word.  In March 2009, the County's proposed draft repeated the identical mistake.  Then the public pointed it out.  Now, in the July 2009 draft, the error is fixed.  The County may never acknowledge that citizen input is useful, but citizens know that their input makes the County do better work.

In the proposed changes, some of the ordinances are rearranged and renumbered.  This can make it difficult to compare the enacted ordinances to the proposed changes.  To minimize the difficulty, this examination keeps to the order of the enacted ordinances; any proposed renumbering of an ordinance is noted in the discussion of that ordinance.  No matter how much renumbering is proposed, sticking to the order of the enacted ordinance will keep confusion to a minimum.

Sticking to the order of the enacted ordinance also serves as a reminder that laws are already in place, and that the test of a proposed ordinance is not "Would it be acceptable as a start from scratch?", but "Is it better than existing law, or is it worse?"  A proposal may be acceptable yet still worse than existing law; a proposal may be better than existing law, but still not worth the time, expense, and inconvenience of the change.  This examination is designed to make it easier to answer those questions.

After the section-by-section comparison in Part II below, Part III, at the end of this document, has links to the complete 1987 ordinance, and the March 2009 and July 2009 proposed changes.


II.  Section-by-section comparison

Section 101
    1987 and March 2009:  These regulations shall be known as the "Cochise County Hazard Abatement Ordinance"; and may be cited as such and will be referred to herein as "this ordinance".
    July 2009:  same, except semicolon becomes comma.

Section 102(a)
   1987:  It is the purpose of this ordinance to provide a ... method ... whereby any rubbish, trash, weeds, filth, debris or damaged and dilapidated buildings which constitute a hazard to public health and safety may be compelled to be removed ....
   March 2009:  ... rubbish, trash, filth, debris or damaged and dilapidated buildings ....
      CHANGE:  removes "weeds" from the list.  The March draft removes all reference to weeds.
   July 2009: rubbish, trash, weeds (as narrowly defined under this ordinance) ....
      CHANGE:  replaces "weeds" on the list, but only weeds "as narrowly defined under this ordinance."  This narrow definition is in section 201:  "Any vegetation that impedes emergency  vehicle access, constitutes a fire hazard, or interferes with the line of sight of vehicles on roadways."

Section 102(b)
   1987:  The provisions of this ordinance shall apply to all
hazardous conditions ....
   March 2009:  The provisions of this ordinance shall apply to all hazardous conditions ....  It is enacted pursuant to authority granted by A.R.S. 11-268.
      CHANGE:  mentions a statute as authority for enacting the ordinance
   July 2009:  To the March draft, adds:  "Commentaries contained herein are intended as a guide to interpreting and carrying out the text of this ordinance."
      CHANGE:  Commentaries have returned to the draft.  The March draft omitted all commentaries, so significant limits to applying the ordinance disappeared.  The return of commentaries is, to this writer, welcome.  The particular sentence added in the July draft is very close to language in the definitions section of the 1987 ordinance -- "Commentaries serve as a guide in interpreting and carrying out the text of this ordinance" -- and there is no obvious difference between the meaning of that sentence in the 1987 ordinance and in the July 2009 draft.


Section 201(a)
   1987:  The position of hazard abatement officer is hereby created, said officer being herein authorized to enforce the provisions of this ordinance.
   March 2009:  The position of Hazard Abatement Officer is hereby created, said officer being herein authorized to enforce the provisions of this ordinance.
      CHANGE:  March 2009 capitalizes "Hazard Abatement Officer."  This change occurs throughout the 2009 proposal, and will not be further noted.
   July 2009:  BECOMES SECTION 301(a), AFTER "DEFINITIONS"
      CHANGE:  to numbering only, not wording

Section 201(b)
   1987:  The health officer, representative of fire district if one is established, and the hazard abatement officer and their authorized representatives are hereby authorized to make such inspections as may be required to enforce the provisions of this ordinance.  The Hazard Abatement Officer or his authorized representative may take such actions as may be required to carry out the provisions of this Ordinance.
   March 2009:  SAME
   July 2009:  BECOMES SECTION 301(b).  A County environmental health inspector, representative of a fire distict if one is established, or the Hazard Abatement Officer or any of their authorized representatives are hereby authorized to make such inspections as may be required to enforce the provisions of this ordinance.  The Hazard Abatement Officer or his authorized representative may take such actions as may be required to carry out the provisions of this Ordinance.
      CHANGE:  Other than renumbering and minor changes in capitalization, "health officer" becomes "County environmental health inspector."

Section 201(c), first paragraph
   1987:  Whenever necessary ... the hazard abatement officer or his authorized representative may enter such buildings ....  If such entry is refused, the hazard abatement officer or his authorized representative shall have recourse to every remedy provided by law to secure entry.
   March 2009:  Whenever necessary ... the Hazard Abatement Officer or his authorized representative may enter such buildings ....  If such entry is refused, the Hazard Abatement Officer or his authorized representative shall have recourse to every remedy provided by law to secure entry, including recourse to an administrative search warrant pursuant to A.R.S. 13-3912(5).
      CHANGE:  Adds the last clause specifically mentioning an administrative search warrant pursuant to ARS 13-3912(5).
   July 2009:  BECOMES SECTION 301(c)
      CHANGE:  to numbering only, not wording

   COMMENT:  This paragraph refers to buildings being "unsafe, dangerous or hazardous."  This is like the theme song to the "Wyatt Earp" tv show, calling Wyatt "brave, courageous and bold."  Can't we write our ordinances less redundantly?

Section 201(c), second paragraph
   1987:  When the hazard abatement officer or his authorized representative shall have first obtained a proper inspection warrant or remedy .....
   March 2009:  When the Hazard Abatement Officer or his authorized representative shall have first obtained a proper inspection warrant or other remedy ....
      CHANGE:  1987 refers to a "warrant or remedy" to enter and inspect property; March 2009 says "warrant or other remedy."
   July 2009:  BECOMES SECTION 301(c)
      CHANGE:  to numbering only, not wording

Section 201(c), third paragraph
   1987:  "Authorized representative" shall include the officers named in Section 201(b) and their authorized inspection personnel."
   March 2009:  SAME
   July 2009, as 301(c):  SAME IN SUBSTANCE; internal section reference changed to 301(b)

Commentary after Section 201(c):
   1987:  "In order for the hazard abatement officer (or his representative) to make an inspection, he must have 'reasonable cause to believe' that there exists rubbish, trash, weeds, filth, or debris in or on a building or premises, or a dilapidated and dangerous building, which creates a condition which is unsafe, dangerous, or hazardous.  Generally, the inspection will result from a complaint which he has received, or by observation of a condition that appears so dangerous that following up with an inspection is reasonable.  It is not intended that the officer travel all over the county searching for hazardous conditions.  Also, if the officer is not given permission by the owner to inspect, the officer must get a court warrant to inspect the property, and this requires him to make a showing of reasonable cause to the court."
   March 2009:  GONE
      CHANGE:  Deletion of language intended to limit application of this ordinance.  Note that in legal arguments, the deletion of such language is often taken as an indication that the ordinance was no longer intended to be limited.
   July 2009:  RESTORED WITH CHANGES:  "In order for the Hazard Abatement Officer (or his representative) to make an inspection, he must have 'reasonable cause to believe' that there exists rubbish, trash, weeds, filth, or debris in or on a building or premises, or a dilapidated and dangerous building, which creates a condition which is unsafe, dangerous, or hazardous.  Generally, the inspection will result from a complaint which he has received, or by observation of a condition that appears so dangerous that following up with an inspection is reasonable.  It is not intended that the officer traverse the county searching for hazardous conditions.  Also, if the officer is not given permission by the owner to inspect, the officer must get a court warrant to inspect the property, and this requires him to make a showing of reasonable cause to the court."
      CHANGE:  "it is not intended that the officer travel all over the county" becomes "that the officer traverse the county."  Traverse is slightly more concise, and does not appear to make any change in meaning.  If a change in meaning is intended, it ought to be explained openly, not buried in a long paragraph.
   COMMENT:  The last line of the Commentary is incorrect.  Obtaining a warrant does not require "reasonable cause," it requires "probable cause."  Under ARS 13-3913, "No search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched."  That's PROBABLE cause, not "reasonable" cause, and the two are very different.  It's reasonable to believe that you might win the lottery; that doesn't make it probable.  The Ordinance definitely be rewritten to state probable, not reasonable, cause, so that it reflects the actual law, not some Commissar's dream.

Section 301
   1987:  For the purpose of this ordinance, certain terms, phrases, words and their derivatives shall be construed as specified in this chapter.  Where terms are not defined, they shall have their ordinary accepted meanings within the context with which they are used.  Webster's Third New International Dictionary of the English Language Unabridged, copyright 1961, shall be construed as providing ordinary accepted meanings.  Words used in the singular include the plural and the plural the singular.  Words used in the masculine gender include the feminine and the feminine the masculine.
   March 2009:  SAME
   July 2009, as 201:  SAME IN SUBSTANCE

   March 2009:  "Abate":  To end a nuisance, emergency, or nonconformance
   July 2009:  SAME

   March 2009:  "Abatement":  Any action taken to reduce, relieve, or suppress another continuing action.  A legal action taken to suppress the continuation of an offensive land use.
   July 2009:  SAME

   1987:  "Board of Appeals":  The Board of Supervisors shall constitute the Board of Appeals for all appeals pursuant to this ordinance.
   March 2009:  SAME
   July 2009:  SAME    

   March 2009:  "Contiguous Sidewalks, Streets and Alleys":  any sidewalk, street, or alley, public or private, adjacent to the edge or boundary, or touching on the edge or boundary, of any real property.
   July 2009:  SAME

   March 2009:  "County":  The unincorporated areas of Cochise County.
   July 2009:  SAME

   1987:  "Debris":  The definition of debris in addition to its ordinary accepted meaning shall include accumulations of combustible or flammable materials which are determined by the hazard abatement officer to constitute a hazard to public health or safety.
   March 2009:  Accumulations of combustible or flammable materials which are determined by the Hazard Abatement Officer to constitute a hazard to public health or safety.
      CHANGE:  The opening reference to "ordinary accepted
meaning" is deleted.
   July 2009:  SAME
   COMMENT:  Here, and wherever action is allowed based solely on a determination by the Hazard Abatement Officer, the language should be changed to indicate that the HAO's determination has no binding effect other than to allow the HAO to take whatever step is at issue, and in particular is not to substitute for the result of an appeal, if one is taken.

   March 2009:  "Dilapidated Building":  Any building in such disrepair, or damaged to such an extent, that its strength or stability is substantially less than a new building, or that is likely to burn or collapse, and the condition of which endangers the life, health safety, or property of the public as determined by the Hazard Abatement Officer.
   July 2009:  SAME
   COMMENTS:
      As to "as determined by" the HAO, same comment as above.
      Many old pole barns, sheds, etc., are substantially less strong or stable than a new such structure, but are still perfectly useful and safe.  To omit inclusion of such buildings, the definition should simply read "Any building that is likely to burn or collapse, and the condition of which endangers the life, health safety, or property of the public ...."

   March 2009:  "Grounds":  Any private or public land, vacant or improved.
   July 2009:  SAME

   March 2009:  "Hazard Abatement Officer":  The Planning Director or his/her designated representative.
   July 2009:  SAME

   March 2009:  "Lessee":  A person who has the right to possess real property pursuant to a lease, rental agreement, or similar instrument.
   July 2009:  SAME

   March 2009:  "Lots":  Any plot or quantity of land, vacant or improved, private or public, as surveyed, platted or apportioned for sale or any other purpose.
   July 2009:  SAME

   March 2009:  "Occupant":  A person who has the actual use, possession, or control of real property.  This term does not include any corporation or association operating or maintaining right-of-way for and on behalf of the United States government, either under contract or federal law.
   July 2009:  SAME
   COMMENT:  on the penult line, "for and on behalf of the United States" is probably meant to be "for or on behalf of ...."

   March 2009:  "Owner":  A person who is a record owner of real property as shown in the public records in the office of the Cochise County Recorder, and includes a person holding equitable title under a recorded installments sales contract, contract for deed or similar instrument.
   July 2009:  SAME

   March 2009:  "Person":  An individual, partnership, corporation, association, trust, state, municipality, political subdivision, or any other entity that is legally capable of owning, leasing, or otherwise possessing real property.
   July 2009:  SAME

   March 2009:  "Public Nuisance":  A dilapidated building or an accumulation of rubbish, trash, filth, or debris that constitutes a hazard to the public health and safety as determined by the Hazard Abatement Officer.
   July 2009:  "weeds" is inserted, i.e. "trash, weeds, filth"
   COMMENT:  Should be, "as adjudicated after the required hearing," not "as determined by the Hazard Abatement Officer."

   March 2009:  "Real Property":  Buildings, grounds, or lots, as well as contiguous sidewalks, streets, and alleys, located in the county.
   July 2009:  SAME

   July 2009:  "Weeds":  Any vegetation that impedes emergency vehicle access, constitutes a fire hazard, or interferes with the line of sight of vehicles on roadways.
      COMMENT:  consistent with section 102(a), see above

   March 2009:  "Wildcat dumping":  The unauthorized placement, or transportation for placement, by any person, firm or corporation, of any rubbish, trash, filth or debris upon any private or public property located in the unincorporated areas of the County not owned or under the control of that person, firm or corporation.
   July 2009:  "weeds" is inserted, i.e. "trash, weeds, filth".
   COMMENTS
      You just can't stop that real estate clique from calling other people wildcatters.  Maybe we should start calling them carpetbaggers.
      This definition was inserted in the March 2009 draft, but the section which used it was removed from the July 2009 draft.  This definition is needless and should be removed.


Section 401
   1987:  When rubbish, trash, weeds, filth or debris, are accumulated on or in buildings, grounds, lots, contiguous sidewalks, streets or alleys and the hazard abatement officer determines that the accumulation or condition constitutes a hazard to public health and safety, or if the hazard abatement officer determines that a dilapated and dangerous building constitutes a hazard to public health or safety, the hazard abatement officer may require the owner, lessee or occupant of buildings, grounds or lots located in unincorporated areas of the County to remove such rubbish, trash, weeds, filth, debris or dilapidated and dangerous building.
   March 2009:  When rubbish, trash, filth or debris, are accumulated on or in buildings, grounds, lots, contiguous sidewalks, streets or alleys and the Hazard Abatement Officer determines that the accumulation or condition constitutes a hazard to public health and safety, or if the Hazard Abatement Officer determines that a dilapated and dangerous building constitutes a hazard to public health or safety, the Hazard Abatement Officer may require the owner, lessee or occupant of buildings, grounds or lots located in unincorporated areas of the County to remove such rubbish, trash, filth, debris or dilapidated and dangerous building.
      CHANGE:  "weeds" removed, capitalization changes
      COMMENT:  "dilapated" for "dilapidated" remains
   July 2009:  SUBSTANTIALLY SIMILAR
      CHANGE:  "weeds" restored
      COMMENT:  "dilapated" for "dilapidated" still remains
   COMMENT:  Slight variations of the phrase "owner, occupant or lessee" appear throughout the ordinance.  Let's pick one version and stick with it, to make sure that a chance variation in the phrase does not lead anyone to infer a variation in meaning.

Section 402
   1987:  "The hazard abatement officer shall provide formal written notice of the alleged violation to the owner, occupant or lessee of the subject premises not less than thirty (30) days prior to the date set for compliance.  Such notice shall include the estimated cost to the County to remove, and advise the owner, occupant or lessee that if the county removes the rubbish, trash, weeds, filth, debris or dilapidated and dangerous building, said expense shall be assessed to said owner, occupant or lessee.  Said notice shall be either personally served or mailed to the owner, occupant or lessee at his last known address by certified mail, 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 know [sic] address."
   March 2009:  SUBSTANTIALLY SIMILAR, plus "If the owner does not reside on the property, a duplicate notice shall also be sent to the owner at the owner's last know address.  Said notice shall include an advisory that if the owner, lessor or occupant alleges that they have been a victim of wildcat dumping, as defined herein, they may apply for vouchers to offset the cost of removal, subject to availability of funds, together with instruction on how to apply for such a voucher."
      CHANGES:
         Adds the possibility of recovering costs from the county if someone else trashes your property.
         Removes "weeds," capitalizes job titles
   July 2009:  "The Hazard Abatement Officer shall provide formal written notice of the alleged violation to the owner, occupant and/or lessee of the subject premises not less than thirty (30) days prior to the date set for compliance.  Such notice shall include the estimated cost to the County to remove, and advise the owner, occupant or lessee that if the county removes the rubbish, trash, weeds, filth, debris or dilapidated and dangerous building, said expense shall be assessed to said owner, occupant and/or lessee.  Said notice shall be either personally served or mailed to the occupant and/or lessee at his last known address by certified mail, 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. / [Note:  the statute and this draft provides for duplicate notice to the owner, if not owner-occupied.  Since penalties can run with the land, this is appropriate, but the statute contemplates citing only the present  occupant.]"
      CHANGES:
         Removes the possibility, added in the March 2009 draft, of recovering costs from the county if someone else trashes your property.  It is this removal of the "wildcat" language that makes it appropriate to remove that definition.
         Reinstates "weeds"
         Changes notice, and billing for expenses, from "owner, occupant or lessee" to "owner, occupant and/or lessee."  To whom is notice required to go?  To whom will expenses be billed?

Section 403
   1987:  "If, after notice, and after the specified date of compliance, the owner, occupant or lessee fails to remove the rubbish, trash, weeds, filth, debris or dilapidated and dangerous building, and abate the conditions which constitute a hazard to public health and safety, the County may, at the expense of the owner, occupant or lessee, remove or cause removal of such trash, weeds, filth, debris or dilapidated and dangerous building.  The cost to be charged for such removal will be the actual cost of removal or abatement, including a five percent (5%) charge for additional inspection and incidental costs."
   March 2009:  "If, after notice, and after the specified date of compliance, the owner, occupant or lessee fails to remove the rubbish, trash, filth, debris or dilapidated and dangerous building, and abate the conditions which constitute a hazard to public health and safety, the County may, at the expense of the owner, occupant or lessee, remove or cause removal of such trash, filth, debris or dilapidated and dangerous building; provided, however, that if such removal or abatement is not undertaken within 180 days after the right to do so first accrues, a new Notice of Violation shall be served as provided in Section 402.  The cost to be charged for such removal will be the actual cost of removal or abatement, including a ten percent (10%) charge for additional inspection and incidental costs, plus any anticipated associated legal costs."
      CHANGES:
         removes "weeds"
         adds language allowing a new Notice of Violation every 180 days:  "provided, however, that if such removal or abatement is not undertaken within 180 days after the right to do so first accrues, a new Notice of Violation shall be served as provided in Section 402."
         doubles the charge for "additional inspection and costs" from 5% to 10%.
         adds charge for "anticipated associated legal costs."
   July 2009:  "If, after notice, and after the specified date of compliance, the owner, occupant or lessee fails to remove the rubbish, trash, weeds, filth, debris or dilapidated and dangerous building, and abate the conditions which constitute a hazard to public health and safety, the County may, at the expense of the owner, occupant or lessee, remove or cause removal of such trash, weeds, filth, debris or dilapidated and dangerous building; provided, however, that if such removal or abatement is not undertaken within 180 days after the right to do so first accrues, a new Notice of Violation shall be served as provided in Section 402.  The cost to be charged for such removal will be the actual cost of removal or abatement, and may include a ten percent (10%) charge for additional inspection and incidental costs."
      CHANGES:
         reinstates "weeds"
         changes "including a ten percent ... charge for additional inspection and incidental costs" to "may include a ten percent ...."
         removes the charge for anticipated legal costs
      COMMENTS:
         There should be no extra charge for "additional inspection" etc. at all.  State law allows a county to pass through actual cost, not charge for hypothetical or unknown costs.  Could be rewritten so that the last clause would be "and may include the actual charge of additional inspection."
         Removing the charge for anticipated legal costs is good.

Section 404
   1987:  The cost of removal of the rubbish, trash, weeds, filth, debris or dilapidated and dangerous building from any lot or tract of land located in the unincorporated areas of the County may be assessed, as set forth in Chapter 8 of this Ordinance, upon the lot or tract of land from which the rubbish, trash, weeds, filth, debris or dilapidated and dangerous buildings are removed.  The assessment, from the date of its recording in the Office of the County Recorder, shall be a lien on the lot or tract of land, until paid.
   March 2009:  The cost to be charged for removal of the rubbish, trash, filth, debris or dilapidated and dangerous building from any lot or tract of land and/or contiguous streets and alleys located in the unincorporated areas of the County may be assessed, as set forth in Chapter 8 of this Ordinance, upon the lot or tract of land from which the rubbish, trash, filth, debris or dilapidated and dangerous buildings are removed.  The assessment, from the date of its recording in the Office of the County Recorder, shall be a lien on the lot or tract of land, until paid.
      CHANGES:
         removes "weeds"
         adds charges for removal not just from property but also
from "contiguous streets and alleys"
      COMMENT:  does not allow assessment against property for the charges of removal from contiguous streets or alleys
   July 2009:  REPLACED BY DRAFT 404(a) and (b)
      Section 404(a):  "When any work or removal is to be done pursuant to this ordinance, the Hazard Abatement Officer shall issue his order therefore to the Planning Director and the work shall be accomplished by personnel of this jurisdiction, by intergovemmental ageement with one or more other jurisdictions, or by private contract under the direction of said director.  Plans and specifications therefore may be prepared by said director, or he may employ such architectural and engineering assistance on a contract basis as he may, deem reasonably necessary.  If any part of the work is to be accomplished by private contract, standard County contractual procedures shall be followed."
         COMMENTS:
            Could somebody with the County please read "Eats, Shoots, and Leaves" to learn about commas?  I let a lot of comma errors go without comment, but not when they jump off the page like "as he may, deem reasonably necessary."
            Draft 404(a) is substantially similar to existing 701(a), whose history is as follows:
               1987:  When any work or removal is to be done pursuant to this ordinance, the hazard abatement officer shall issue his order therefore to the director of public works and the work shall be accomplished by personnel of this jurisdiction or by private contract under the direction of said director.  Plans and specifications therefore may be prepared by said director, or his many employ such architectural and engineering assistance on a contract basis as he may deem reasonably necessary.  If any part of the work is to be accomplished by private contract, standard public works contractual procedures shall be followed.
               March 2009:  Substantially similar, with corrections of clerical errors, and replacing "director of public works" by Planning Director.  This change also occurs in Section 801, but will not be separately noted there.
      Section 404(b):  "The cost of such work may be made a special assessment against the property involved as in the manner set forth in Section 703 through 709 of this ordinance, or may be made a personal obligation of the property's owner, whichever the Board of Appeals shall determine is appropriate.  If made a special assessment, said assessment shall, from the date of recording in the Office of the County Recorder, be a lien on the lot or tract of land until paid."
         COMMENTS:
            A "special assessment ... as in the manner" is meaningless; what is meant is "assessment ... in the manner."
            Draft 404(b) is substantially similar to existing 701(b), whose history is as follows:
               1987:  The cost of such work shall be made a special assessment against the property involved as in the manner set forth in Section 808 through 813 of this ordinance, or may be made a personal obligation of the property owner, whichever the Board of Supervisors shall determine is appropriate.
               March 2009:  Substantially similar, but changes "shall" (in the first line) to "may," giving the Supervisors discretion whom to charge.
   COMMENT:  The discretionary power to decide whether to place a lien on property, or to lay a personal debt on a citizen, dates back to 1987 but is suspect.  This ordinance should not merely state the power, but should specifically reference the statute authorizing it.

Section 405
   1987:  Both the notice of violation and any assessment imposed pursuant to this chapter may be appealed to the Board of Appeals in the manner provided in Chapter 5 of this Ordinance.
   March 2009:  Both the notice of violation provided under Section 402 of this Ordinance and the amount of any charge or assessment determined pursuant to Section 801 of this Ordinance, may be appealed to the Board of Appeals in the manner provided in Chapter 5 of this Ordinance.
      CHANGE:  Addition of a reference to Section 801.
   July 2009:  "Both the notice of violation provided under Section 402 of this Ordinance and/or the amount of any charge or assessment determined pursuant to Section 403 of this Ordinance, may be appealed to the Board of Appeals in the manner provided in Chapter 5 of this Ordinance. / [Note:  Only Ch. 5 is referenced here, although Ch. 6 provides appeal procedures, because the right to appeal is established by Ch. 5]".
      CHANGE:  Reference to Section 801 changed to Section 403.

COMENTARY [sic] after Section 405
   1987:  "This chapter is intended to provide a way to remove rubbish, trash, weeds, filth, debris, or dilapidated and dangerous buildings that present a real danger to persons or property.  This primarily occurs in three cases:  (1) accumulations or conditions which has a strong potential for causing or carrying a fire: (2) accumulations or conditions likely to cause injury to any person; and (3) accumulations or conditions likely to cause hazards to the health of any conditions likely to cause hazards to the health of any person.  A.R.S. 36-601 provides a separate and additional ordinance and remedy to deal with accumulations that can cause disease or other health problems.  While this chapter deals with situations caused by the occupant of the property, it also deals with involuntary acts of dumping by other persons or acts of nature.  However, this section shall only be enforced when the condition is serious enough to present a real hazard to persons or property.  It is not intended to apply as an 'aesthetic' control - that is, a way to get the county to beautify a neighbor's site."
      COMMENT:  The duplicated phrase in the ordinance is not a typo, it is in the original.
   March 2009:  The Commentary is gone.
      CHANGE:  Deletion of language intended to limit application of this ordinance.  Note that in legal arguments, the deletion of such language is often taken as an indication that the ordinance was no longer intended to be limited.
   July 2009:  The Commentary is restored, but placed after two more sections, 406 and 407, which are discussed below.
      CHANGE:  minor proofreading corrections
      COMMENT:  Restoration of the comment is very welcome.

Section 406
   1987 and March 2009:  this section defined "occupant," a definition which is now in Section 301 above.
   July 2009:  Before the removal of a dilapidated and dangerous building the Board of Supervisors shall consult with the State Historic Preservation Office to determine if the building is of historic value. / [Note:  No specific consequence of a finding of historic value is provided here because the statute only requires this determination, and there is no point in tieing our hands.  The value may justify keeping the structure standing or not.  But we will not make that decision until we know this fact.]
      COMMENT:  The July 2009 language is identical to Section 407 from 1987 and from March 2009.

Section 407
   1987:  Before the removal of a dilapidated and dangerous building the Board of Supervisors shall consult with the State Historic Preservation Office to determine if the building is of historic value.
      COMMENT:  This is identical to Section 406 from July 2009.
   March 2009:  Same as 1987 version.
   July 2009:  If a county removes a dilapidated and dangerous building pursuant to this section, the Hazard Abatement Officer shall notify the County Assessor, and the County Assessor shall remove the structure from the property assessment rolls.
      COMMENT:  The July 2009 language is substantially similar to Section 408 from 1987 and from March 2009.

Section 408
   1987:  If a county removes a dilapidated and dangerous building pursuant to this section, the County Assessor shall remove the structure from the property assessment tax rolls.
   March 2009:  SAME
   July 2009:  No Section 408 exists; substantially similar language has been moved up to Section 407.

COMMENT:  The "Commentary" after Section 405 is located after Section 407 in the July 2009 draft.


Section 501(a), opening paragraph
   1987:  "An owner, occupant or lessee of property affected may appeal from any notice and order or any action of the hazard abatement officer under this ordinance, or any assessment made pursuant to this Ordinance, by filling at the office of the hazard abatement officer written appeal containing ...."
   March 2009:  "An owner, occupant or lessee of property affected may appeal from the terms of any notice issued pursuant to Section 402 of this Ordinance, or any determination of amount owing and subject to possible assessment made pursuant to Section 801 of this Ordinance ...."
      CHANGES:
         the 1987 language allows appeal "from any notice and order or any action of the hazard abatement officer under this ordinance," but the March 2009 draft refers to "appeal from the terms of any notice issued pursuant to Section 402"
         the 1987 language allows appeal from "any assessment made pursuant to this Ordinance," but the new proposal refers to appeal from "any determination of amount owing and subject to possible assessment made pursuant to Section 801"
   July 2009:  "An owner, occupant or lessee of property affected may appeal from the terms of any notice issued pursuant to Sections 402 or 403 of this ordinance by filing with the Hazard Abatement Officer a written appeal containing .... / [Note:  I've added 403 here, too, because it provides for a second notice of actual costs if owner doesn't clean up after first notice  and county has to do the work]".
      CHANGE:  as pointed out in the Note.
      COMMENT:  I don't know who the "I" is in the Note.

Section 501(a), closing paragraph
   1987:  "The appeal shall be filed within thirty (30) days from the date of the service of such notice, order or action of the hazard abatement officer; provided, however, that if the condition is such as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property, such appeal shall be filed within ten (10) days from the date of the service of the notice and order of the hazard abatement officer."
   March 2009:  "The appeal shall be filed with the Office of the Hazard Abatement Officer within thirty (30) days from the date of the service of the notice provided by Section 402 or the determination issued pursuant to Section 801; provided, however, that if said notice alleges that the condition is such as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property, such appeal shall be filed within ten (10) days from the date of the service of the notice."
      CHANGE:  The 1987 language requires filing an appeal within 30 days after service of "such notice, order or action," but the 2009 proposal starts the 30 days upon "service of the notice provided by Section 402 or the determination issued pursuant to Section 801."  Also, the 2009 language makes it clear that the right to appeal depends upon service of a notice, not upon proof that the allegations in the notice are true.
   July 2009:  "The appeal shall be filed with the Office of the Hazard Abatement Officer within thirty (30) days from the date of the service of the notice provided by Section 402 or the determination issued pursuant to Section 403; provided, however, that if said notice alleges that the condition is such as to make it immediately dangerous to the life, limb, property or safety of the public or adjacent property, such appeal shall be filed within ten (10) days from the date of the service of the notice."
      CHANGE:  Correction of "Section 801" to "Section 403."

Section 502
   1987:  Failure of any person to file an appeal in accordance with the provisions of Section 501 shall constitute a waiver of his right to an administrative hearing and adjudication of the notice and order or any portion thereof.
   March 2009:  SAME
   July 2009:  SAME

Section 503
   1987:  Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.
   March 2009:  Only those matters or issues specifically raised by the appellant, and defenses thereto, shall be considered in the hearing of the appeal.
      CHANGE:  The scope of the hearing has been broadened to include defenses, obviously to be raised by the county, to the items raised by an appellant.
   July 2009:  SAME

Section 504
   1987:  Enforcement of any notice and order of the hazard abatement officer issued under this code shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.
   March 2009:  Enforcement of any notice or determination that is under appeal shall be stayed during the pendency of that appeal, if that appeal is timely filed.
      CHANGE:  Under the March 2009 draft, to obtain a stay, an appeal need not be "properly and timely" filed, but only "timely."
   July 2009:  Enforcement of any notice or determination that is under appeal shall be stayed during the pendency of the appeal, if that appeal is timely filed, unless it is determined by the Hazard Abatement Officer that the condition poses an immediate danger to life, limb, property or safety of the public or of an adjacent property.
      CHANGE:  Properly filing an appeal no longer results in an automatic stay of the order being appealed.  The county employee who issued the order decides if you can have a stay while you appeal it.
      COMMENT:  In America, we don't let people who issue orders decide whether or not the orders will be enforced while you appeal them.  By definition, the person who issues orders has already decided that they are right -- so that person cannot be an impartial decider of whether they are right, and whether they should be enforced while an appeal proceeds.  The March 2009 wording is best:  "Enforcement of any notice or determination that is under appeal shall be stayed during the pendency of that appeal, if that appeal is timely filed."

"Commentary" to 504
   1987:  A detailed appeal process is provided.  Owner/occupant can challenge a decision of the hazard abatement officer to the Board of Supervisors.  The Board will look carefully at the facts to see if the accumulation of rubbish, trash, filth, weeds, and debris, or dilapidated and dangerous building, is truly a hazard to public health or safety.  In short, every protection is given to the property owner.  There is a separate process to allow the property owner a right to challenge an interpretation by the hazard abatement officer to an independent advisory board.
   March 2009:  There is no "Commentary."
   July 2009:  The "Commentary" remains deleted, and no wonder, because it would be ridiculous to say that "every protection is given to the property owner" when the protection of a stay during appeal has just been taken away from the owner.  The "Commentary" should be included, and simplified to make its point clearer, thus:  "A detailed appeal process is provided.  An owner or occupant can challenge a Hazard Abatement Officer's decision to the Board of Supervisors.  The Board must look carefully at the facts to see if there is actually an accumulation of rubbish, trash, filth, weeds, and debris, or a dilapidated and dangerous building, which is truly a hazard to public health or safety.  In short, every protection must be given to a property's owner or occupant."  The "Commentary," in this suggested version, should be restored.


Section 601(b)
   1987:  "The proceedings at the hearing shall also be reported by a phonographic reporter if requested by any party thereto.  A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefore.  Such fees may be established by the Board, but shall in no event be greater than the cost involved."
   March 2009:  SAME
   July 2009:  "The proceedings at the hearing shall also be recorded if requested by any party thereto.  A transcript of the proceedings shall be made available to any party upon request and upon payment in advance of the estimated cost of transcription and copying.  Upon completion of transcripts, the actual cost of preparation shall be determined and, if more than the estimated cost, the requesting party shall pay the balance due prior to receiving the completed transcript; if the actual cost is less than the estimated cost, the balance shall be refunded to the requesting party.  If one party orders a transcript of proceedings, other parties may obtain additional copies of trial transcript for the reasonable cost of copying, as established by the Clerk of the Board. / [Note:  I have tried to establish an advance payment system here, as requested, but we cannot demand that parties tell us ahead of the hearing that they want to order the transcript, because they have no way of knowing at that point whether they'll need it.]"
      CHANGE:  An elaborate procedure for paying for a transcript of a hearing.
      COMMENTS:
         All proceedings should be recorded, without the necessity for a request by anyone.  If anyone wants a transcript, payment terms can be settled with the Court Reporter who will prepare a transcript.
         I do not know who the "I" is who wrote the note.

Section 601(d)
   1987:  ... the Board, any board member, has the power to administer oaths and affirmations and to certify to official acts.
   March 2009:  ... any Board member has the power to administer oaths and affirmations and to certify to official acts.
      CHANGE:  Apparently, clarification that an individual Board member, not the Board as a whole, may administer oaths etc.
   July 2009:  SAME

Section 602 [contents of notice of hearing on appeal]
   1987:  "You are hereby notified that a hearing will be held ....  You may be, but need not be, represented by counsel...."
   March 2009:  "You are hereby notified that a hearing will be held ....  You may be, but need not be, represented by counsel.  If you are going to be represented by counsel, written notice of that representation should be filed with the Office of the Hazard Abatement Officer at least five days prior to the hearing...."
      CHANGE:  Addition of a time limit for an appellant to tell the county that the appellant will be represented by counsel.
   July 2009:  "You are hereby notified that a hearing will be held ....  You may be, but need not be, represented by counsel.  If you are going to be represented by counsel, written notice of that representation must be filed with the Hazard Abatement Officer at least five days prior to the hearing...."
      CHANGE:  Besides clearing away clutter, a change from "should" to "must" tell the Hazard Abatement Officer, at least five days before a hearing, that you will have an attorney representing you at the hearing.
      COMMENTS:
         Notice should be given to a hearing officer, not to the opposing party. 
The Hazard Abatement Officer, who caused the filing of charges, should come to any hearing fully prepared to prove them, whether or not the citizen has hired an attorney.
         The statement "you may be, but need not be, represented by counsel" is ambiguous.  It means to say that a person has a choice about whether or not to hire an attorney, but it gives the impression that a person may not actually need an attorney at all.  The County shouldn't give that impression.  The sentence would be more accurate if shorter, along the lines of "It's your choice whether to have an attorney represent you or not."  That leaves no implication about whether or not a person "needs" an attorney, and that language should be adopted.

Section 603
   COMMENT:  In the 1987 ordinance, the sections jump directly from 603 to 605; evidently, 604 was omitted by mistake.  All of 603 concerns procedure at hearings on appeals from orders of the Hazard Abatement Officer.

Section 603(a)
   1987:  ... The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefore which states the name and address of the proposed witness; specified the exact things sought to be produced and the materiality thereof in detail to the issues involved ....
   March 2009:  ... The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefore which states the name and address of the proposed witness; specifying the exact items sought to be produced and stating, in detail, the materiality thereof to matters at issue in the appeal ....
      CHANGE:  a slight rewrite aimed at clarification
      COMMENT:  the "materiality" comment may require a party to reveal his theory of the case to his opponent before the hearing.  It might be more fair to replace this by penalties for obtaining subpoenas for reasons that are "frivolous" as defined by caselaw.
   July 2009:  ... The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefore, at least ten (10) business days prior to the date of the hearing ....
      CHANGE:  addition of a 10-day time limit
      COMMENT:  Complications will result from the interaction of the 10-day requirement here, and the 5-day requirement for hiring a lawyer.  A lawyer might be hired, and see the need for issuing subpoenas, after the time for issuing subpoenas has passed.  It would be better require a de facto deadline for hiring an attorney to be far enough before the hearing to let the attorney do his job.

Section 603(b)
   1987:  "When any person refuses without lawful excuse to attend any hearing or to produce material evidence in his possession or under his control as required by any subpoena served upon such person as provided for herein, the Board may seek a court order to compel such attendance or production."
   March 2009:  SAME
   July 2009:  SAME
      COMMENT:  The July 2009 draft has a Note, but the Note is nonsense:  "I've replaced one ambiguous term for another here, but the new language tracks the language from Rule 45 of both the Arizona and Federal Rules of Civil Procedure, so there will be plenty of case law construing its meaning."  However, since the language is identical in all three versions, perhaps the "I" in that Note forgot to make some change to which he is referring?

Sections 603(c) through (g)
   COMMENT:  In the 1987 ordinance, these sections deal generally with procedure at a hearing.  The March 2009 draft followed generally the same organization, but renumbered the sections into a new section 604.  The July 2009 draft lumps many of the sections together into a "catchall paragraph," 604(a):  "Hearings may be conducted in an informal manner and without strict adherence to the rules of evidence required in judicial proceedings.  Neither the manner of conducting the hearing nor the failure to adhere to the rules of evidence required in judicial proceedings shall be grounds for reversing any administrative decision or order, providing that the evidence supporting such decision or order is substantial, reliable, and probative.  Irrelevant or unduly repetitious evidence shall be excluded.  Every person who is a party to such proceeding shall have the right to be represented by counsel, to submit evidence in open hearing and shall have the right of cross-examination.  Any attorney appearing on behalf of any party shall enter his appearance, in writing and addressed to the Hazard Abatement Officer, at least five (5) business days prior to the hearing. / [Note:  This catch-all paragraph, drawn from the Arizona Administrative Procedure Act, includes all of the rights we had provided in a series of sections, below.  I only require 5 days notice of an attorney's appearance, because often it is difficult to find an attorney any sooner.]"
   COMMENTS TO THE CATCHALL PARAGRAPH
      The Note [by an "I" unknown to this writer] at the bottom of the catchall paragraph is incorrect.  The catchall paragraph does not include all the rights provided in the 1987 ordinance.  This is evident upon actual examination of the 1987 paragraphs, immediately below, which go into much more detail in some subjects.

Section 603(c)
   1987:  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.
   March 2009, as 604(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 a civil action in a court of competent jurisdiction in this case.
      CHANGE:  immaterial change from plural "actions" and "courts" to singular
   July 2009:  any specific reference to hearsay is GONE

Section 603(d)
   1987:  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.
   March 2009, as 604(d):  SAME
   July 2009:  any specific reference to admissibility is GONE

Section 603(e)
   1987:  Irrelevant and unduly repetitious evidence shall be excluded.
   March 2009, as 604(e):  SAME
   July 2009:  Substantially the same sentence -- differing only in saying "irrelevant or unduly" instead of "irrelevant and unduly" -- is in the July 2009 "catchall paragraph."

Section 603(f) in the 1987 ordinance lists six rights which each party has, "among others:"
   "1.  To call and examine witnesses on any matter relevant to the issues of the hearing;"
      March 2009, SAME, as 604(f)(1)
      July 2009, not specified
   "2.  To introduce documentary and physical evidence;"
      March 2009, SAME, as 604(f)(2)
      July 2009, not specified, but generally included within the right "to submit evidence" in the catchall paragraph
   "3.  To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;"
      March 2009, SAME, as 604(f)(3)
      July 2009, not specified, but included within the "right of cross-examination" in the catchall paragraph
   "4.  To impeach any witness regardless of which party first called him to testify;"
      March 2009, SAME, as 604(f)(4)
         COMMENT:  the March 2009 draft refers to "him or her," a difference that has no effect on meaning
      July 2009, not specified
   "5.  To rebut the evidence against him; and"
      March 2009, SAME, as 604(f)(5)
      July 2009, not specified, but generally included within the right "to submit evidence" in the catchall paragraph
   "6.  To represent himself or to be represented by anyone of his choice who is lawfully permitted to do so."
      March 2009, SAME, as 604(f)(6)
      July 2009, not specified, but included within "the right to be represented by counsel" in the catchall paragraph
   COMMENT:  The "catchall paragraph" does not replace the list of individual rights.  Nothing would prevent one paragraph from containing that list of individual rights, however.

Section 603(g)(1)
   1987:  "In reaching a decision, official notice may be taken, either before or after submission of the case decision, of any fact which may be judicially noticed by the courts of this state or of official records of the Board or departments and ordinances of the County or rules and regulations of the Board."
   March 2009, as 604(g):  "In reaching a decision, official notice may be taken, either before or after submission of the case decision, of any fact which may be judicially noticed by the courts of this state; or of official records of the Board or of any County government departments; of ordinances of the County; or of any rules and regulations promulgated by the Board, sitting as a Board of Supervisors."
      CHANGE:  Apparently, the addition of punctuation and a little extra language, for clarification purposes only.
   July 2009, as 604(b)(1):  "In reaching a decision, official notice may be taken, either before or after submission of the case decision, of any fact which may be judicially noticed by the courts of this state; of official records of the Board or of any County government departments; of ordinances of the County; or of any rules and regulations promulgated by the Board, sitting as a Board of Supervisors."
      CHANGE:  minor punctuation changes

Section 603(g)(2)
   1987:  "Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the Board of Appeals."
   March 2009, as 604(g)(2):  SAME
   July 2009, as 604(b)(2):  SAME

Section 603(g)(3)
   1987:  IDENTICAL TO 603(g)(2), an obvious mistake
   March 2009, as 604(g)(3):  SAME, repeated 22 years later
   July 2009, as 604(b)(3):  "The Board may inspect any building or premises involved in the appeal during the course of the hearing, provided that:  (i) notice of such inspection shall be given to the parties before the inspection is made; (ii) the parties are given an opportunity to be present during the inspection; and (iii) the Board shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn there from.  Each party then shall have a right to rebut or explain the matters so stated by the Board."
      COMMENT:  Appeals, as generally understood, don't hear new evidence.  The procedure proposed here changes a nominal "appeal" into an actual new hearing.  This is a bad idea.  A party could make one case at the original hearing, then make an entirely different case at the "appeal" proposed in this section.  The American system requires people to make their record at hearings, and that record is what is considered on appeal.  This system shouldn't be changed in Cochise County, because it has worked well for us, just as it works well in every other jurisdiction in America, except possibly the areas which were once under the Napoleonic Code -- and we don't need people copying Napoleon.

Section 603(g)(4)
   1987:  Substantially identical to the July 2009 version of 603(g)(3), reproduced immediately above.  The only difference is that where the July 2009 draft says "there from," the 1987 ordinance says, correctly, "therefrom."

Section 604:  Doesn't exist in the 1987 ordinance; obviously a clerical error.

Section 605(a)
   1987:  Where a contested case is heard before the Board, no member thereof who did not hear the evidence or has not read the entire record of the proceedings shall vote on or take part in the decision.
      COMMENT:  Nobody should judge a case who did not actually attend the appeal.  Merely reading the record is insufficient.
   March 2009:  Where a contested case is heard before the Board, any member thereof who did not hear the evidence or did not have the opportunity to read the entire record of the proceedings shall vote on or take part in the decision.
      CHANGE:  This is a significant denial of due process.  Under the 1987 ordinance, a supervisor who has not at least read the entire record cannot vote on a case.  The 2009 proposal changes the phrase "no member thereof" to "any member thereof," so would let a supervisor vote even if he did not hear the evidence.  This must be an error; such a result could not be intended.  But even reverting to "no member thereof" does not fix the problem.  The wording "no member [who] did not have the opportunity to read the entire record ... shall vote" leaves the denial of due process in place.  It is obvious that merely having the opportunity to read documents, and actually reading the documents, are two different things.  It is a clear violation of due process to allow a supervisor to vote on a case, if the supervisor has not actually read the record.  Yet that is what the 2009 proposal would do.
   July 2009:  SAME
      COMMENT:  The problem with this language was pointed out after the March 2009 draft, yet the County has not fixed it.  It is unconscionable that the County would still be trying to deny basic due process in this manner.  The section should simply state "Where a contested case is heard before the Board, no member thereof who did not attend the entire hearing shall vote on or take part in the decision."  In fact, additional language might even be added to give more teeth to this provision.  There is no excuse for changing the rule enacted in 1987 and putting citizens' fates in the hands of supervisors who can't be troubled to stay alert and focused during hearings.

Sections 701(a) and (b)
   COMMENT:  The 1987 versions of these sections are gone; their substance is in July 2009 sections 404(a) and (b), which were discussed above in "Section 404."  Existing sections 801 through 804 are also gone; starting with draft 805, the sections have been "slid forward" and renumbered accordingly.

Sections 801 through 804
   COMMENT:  As noted in the preceding paragraph, existing sections 801 through 804 are gone.

Section 801
   1987:  The director of public works shall keep an itemized account of the expense incurred by Cochise County in the work or removal of any materials, done pursuant to the provisions of this ordinance.  Upon the completion of the work or removal, said director shall prepare and file with the hazard abatement officer a report specifying the work done, the itemized and total cost of the work, a description of the real property upon which the hazard is or was located, and the names and addresses of the persons entitled to notice pursuant to Section 402.
   March 2009:  Substantially similar, and adds "Upon receipt of said determination, the Hazard Abatement Officer shall serve personally or by certified mail, the parties entitled to notice pursuant to Section 402, above, a copy of said determination, together with copies of Chapters 5 and 6 of this Ordinance, governing appeals and appeal procedures."
      CHANGE:  Slight clarification of the language from 1987, plus the requirement of notice to all parties of county expenses.  Section 801 must be read together with Section 802, just below.
   July 2009:  GONE

Section 802
   1987:  Upon receipt of said report, the hazard abatement officer shall present it to the Board of Supervisors shall fix a time, date and place for hearing said report and any protests or objections thereto.  The clerk of the Board of Supervisors shall cause notice and said hearing to be posted upon the property involved, published once in a newspaper of general circulation in this jurisdiction, and served by certified mail, postage prepaid, addressed to the owner of the property as his name and address appear on the last equalized assessment roll of the County, if such so appear, or as known to the clerk.  Such notice shall be given at least ten (10) days prior to the date set for hearing and shall specify the day, hour and place when the Board of Supervisors will hear and pass upon the director's report, together with any objections or protests which may be filed as hereinafter provided by person interested in or affected by the proposed charge.
   March 2009:  The determination of costs established pursuant to Section 801, above, shall be the amount owing by the party charged and payment shall be due from said party within 30 days of service of that determination, unless an appeal of that determination is lodged, pursuant to Chapter 5, within that time.  If an appeal is timely lodged from a determination issued pursuant to Section 801, above, the Hazard Abatement Officer shall present it to the Board of Supervisors who shall fix a time, date and place for hearing said report and any protests or objections thereto.  The clerk of the Board of Supervisors shall provide notice thereof as required by Section 501(c) of this Ordinance, together with copies of any objections or protests filed pursuant to Section 803, below, up to date of mailing of said notice.
      CHANGE:  Continues the procedural rewrite that began in Section 801, just above.
   July 2009:  GONE

Section 803
   1987:  Any person interested in or affected by the proposed charge may file written protests or objections ... at any time prior to the time set for the hearing on the report of the director....
   March 2009:  Any person interested in or affected by the proposed charge may file written protests or objections ... at least fourteen (14) days prior to the time set for the hearing on the determination of costs....
      CHANGE:  The time for opposing the charges moves from "any time prior to" the hearing to at least 14 days before.
   July 2009:  GONE

Section 804
   1987:  Upon the day and hour fixed for the hearing the Board of Supervisors shall hear and pass upon the report of the director together with any such objections or protests.  The Board of Supervisors may take such revision, correction or modification in the report or the charge as it may deem just; and when the Board of Supervisors is satisfied with the correctness of the charge, the report (as submitted or as revised, corrected or modified) together with the charge, shall be confirmed or rejected.  The decision of the Board of Supervisors on the report and the charge, and on all protest or objections, shall be final and conclusive.
   March 2009:  substantially the same
      CHANGE:  Appears to be intended for clarification only, not at changing any substance of the 1987 version.
   July 2009:  GONE

Sections 805 and onward survive in the July 2009 draft, renumbered beginning as 701.

Section 805(a)
   1987:  The Board of Supervisors of this jurisdiction may thereupon order that said charge shall be made a personal obligation of the property owner or assess said charge against the property involved, in the manner set forth in Section 807 through 813 of this ordinance.
   March 2009:  After the Board confirms, rejects or modifies the determination of costs pursuant to Section 804, below, or, if no appeal is taken, after a copy of the determination of costs has been served on the parties and 30 days has passed, the Board of Supervisors of this jurisdiction may thereupon order that said charge shall be made a personal obligation of the property owner or may assess said charge against the property involved, in the manner set forth in Section 807 through 813 of this ordinance.
   July 2009, as 701(a):  After the Board confirms, rejects or modifies the determination of costs established pursuant to Section 403, above, or, if no appeal is taken, after a copy of the determination of costs has been served on the parties and 30 days has passed, the Board of Supervisors of this jurisdiction may order that said charge shall be made a personal obligation of the property owner or may assess said charge against the property involved, in the manner set forth in Section 703 through 709 of this ordinance.
      CHANGE:  minor punctuation, internal section numbers
      COMMENT:  There is no July 2009 701(b), so 701(a) should be numbered simply 701.
   COMMENTS:
      If the Supervisors will be able to choose between making an amount simply a lien on land, or a personal debt of the landowner, the ordinance should state what standards will be used to make this decision.  There is a good deal of room for favoritism and "good old boy" politics in the existing and proposed language.
      Because of the sensitive nature of the supervisors voting to create a personal debt, the statute allowing this procedure should be specifically referenced in the statute.

Section 805(b)
   1987:  If the Board of Supervisors of this jurisdiction orders that the charge shall be a personal obligation of the property, it shall confirm the assessment, cause the same to be recorded on the assessment roll, and thereafter said assessment shall constitute a special assessment against and a lien upon the property.
   March 2009:  SAME
   July 2009:  partly included in the rewrite of Section 805(a)

Section 806
   1987:  The validity of any assessment made under the provisions of this chapter shall not be contested in any action or proceeding unless the same is commenced within thirty (30) days after the assessment is placed upon the assessment roll as provided herein.  Any appeal from a final judgment in such action or proceeding must be perfected within thirty (30) days after this entry of such judgment.
   March 2009:  The validity of any assessment made under the provisions of this chapter shall not be contested in any further judicial action or proceeding unless an administrative appeal has been timely brought pursuant to Sections 501 and 801 of this Ordinance, and said appeal rights have been exhausted.  Any judicial appeal of the Board's final determination of costs established pursuant to Section 804, above, must be commenced within thirty (30) days after the date of the Board's final determination.
      CHANGE:  Appears aimed at taking notice of the legal doctrine of "exhaustion of administrative remedies."  Probably does not make any change in substance.
   July 2009, as 702:  The validity of any assessment made under the provisions of this chapter shall not be contested in any further judicial action or proceeding unless an administrative appeal has been timely brought pursuant to Sections 501 of this Ordinance, and said appeal rights have been exhausted.  Any judicial appeal of the final determination of costs established pursuant to Section 403, above, must be commenced within thirty (30) days after receipt of notice of said determination.
      CHANGE:  punctuation & housekeeping

Section 807
   1987:  If any costs or charges, as imposed pursuant to this ordinance, are not paid by the owner, occupant or lessee within (30) days of such removal, such unpaid amount shall constitute an assessment upon the lots and tracts of land from which the rubbish, trash, weeds, filth or debris are removed and a lien upon said lot, tracts, or land until paid.  Said lien may be perfected by the county against the subject property by recording a notice of lien in the Office of the Cochise County Recorder.  Such notice of lien shall specify the nature of assessment, the amount of the lien and the name and address of the charges assessed.  The lien shall continue in full force and effect on the tract of land or lot until the chares [sic] assessed are paid.  Such liens are subject and inferior to the lien for general taxes and to all prior recorded mortgages and encumbrances of record.  The County may bring an action to enforce the lien in the Cochise County Superior Court at any time after the recording of the assessment, but failure to enforce the lien by such action does not affect its validity.  The recorded assessment is prima facie evidence that the truth of all matters recited in the assessment and of the regularity of all proceedings before the recording of the assessment.
   March 2009:  If any costs or charges, as imposed pursuant to this ordinance, are not paid by the owner, occupant or lessee within (30) days of such removal, such unpaid amount shall constitute an assessment upon the lots and tracts of land from which the rubbish, trash, filth or debris are removed and a lien upon said lot, tracts, or land until paid.  Said assessments shall be due and payable in equal installments, as follows:
      1.  Assessments of less than five hundred dollars ($500.00) shall be paid within one year after the assessment is recorded;
      2.  Assessments of five hundred dollars ($500.00) or more but less than one thousand dollars ($1,000.00) shall be paid within two years after the assessment is recorded;
      3.  Assessments of one thousand dollars ($1,000.00) or more but less than five thousand dollars ($5,000.00) shall be paid within three years after the assessment is recorded;
      4.  Assessments of five thousand dollars ($5,000.00) or more but less than ten thousand dollars ($10,000.00) shall be paid within six years after the assessment is recorded;
      5.  Assessments of ten thousand dollars ($10,000.00) or more shall be paid within ten years after the assessment is recorded.
      A lien may be perfected by the county against the subject property in the amount of the assessment imposed by recording a notice of lien in the Office of the Cochise County Recorder.  Such notice of lien shall specify the nature of assessment, the amount of the lien and the name and address of the owner of the lot or tract and the person failing to pay the charges assessed.  The lien shall continue in full force and effect on the tract of land or lot until the charges assessed are paid.  Such liens are subject and inferior to the lien for general taxes and to all prior recorded mortgages and encumbrances of record.  The County may bring an action to enforce the lien in the Cochise County Superior Court at any time after the recording of the assessment, but failure to enforce the lien by such action does not affect its validity.  The recorded assessment is prima facie evidence that the truth of all matters recited in the assessment and of the regularity of all proceedings before the recording of the assessment.
      CHANGES
         Addition of a timetable as required by statute, and correction of some minor clerical errors in the 1987 version.
         "Weeds" removed
   July 2009, as 703:  Substantially the same, with "weeds" restored

Section 808
   1987:  All such assessments remaining unpaid after thirty (30) days from the date of recording on the assessment roll shall become delinquent and shall bear interest at the rate established for delinquent taxes from and after said date.
   March 2009:  SAME
   July 2009, as 704:  SAME

Section 809
   1987:  After confirmation of the report, certified copies of the assessment shall be given to the Assessor and the County Treasurer, who shall add the amount of the assessment to the next regular tax bill levied against the parcel.
   March 2009:  SAME
   July 2009, as 705:  SAME

Section 810
   1987:  If the County Assessor and the county tax collector assess property and collect taxes for this jurisdiction, a certified copy of the assessment shall be filed with the County Treasurer within thirty (30) days after recordation of the lien.  The descriptions of the parcels reported shall be those used for the same parcels on the County Assessors map book for the current year.
   March 2009:  SAME
   July 2009, as 706:  SAME

Section 811
   1987:  The amount of the assessment shall be collected at the same time and in the same manner as ordinary property taxes are collected and shall be subject to the same penalties and procedure and sale in case of delinquency was provided for ordinary property taxes.  All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to such assessment.
   March 2009:  SAME
   July 2009, as 707:  SAME

Section 812
   1987:  All money recovered by payment of the charge or assessment or from the sale of the property at foreclosure sale shall be paid to the treasurer of this county, who shall credit the same to the General Fund.
   March 2009:  SAME
   July 2009, as 708:  SAME

Section 813
   1987:  A prior assessment for the purpose provided in this section is not a bar to a subsequent assessment or assessments for such purposes, and any number of liens on the same lot or tract of land may be enforced in the same action.
   March 2009:  SAME
   July 2009, as 709:  SAME


III.  Texts of the 1987 enacted ordinance, and the March 2009 and July 2009 proposed changes

The complete text of the ordinance enacted in 1987 is online at
    http://littlebigdog.net/HazardOrdinance1987.pdf
or
    http://littlebigdog.net/HazOrd1987.txt

The complete text of the March 2009 draft proposals is at
    http://littlebigdog.net/HazardOrdinance2009.pdf
or
    
http://littlebigdog.net/HazOrd2009.txt

The complete text of the July 2009 draft, showing the influence of public feedback, is at
    http://littlebigdog.net/HazOrdDraftJuly142009.pdf

If you view or print any .txt file mentioned in this posting, you should open it as ASCII DOS text (if you are given a choice), and set the page size to 8.5 x 11", 1" margins, Courier or Courier New font, 12 point.