This document discusses parts of the latest (May) draft of the Hazard Abatement Ordinance.
The County's recent drafts of
the ordinance have been a little confused. Basically, in late
March, one draft was posted for use at the April P&Z Commission
meeting; but in early April, about a week before that meeting, a
different draft was posted; then the entire subject was tabled until
the May meeting; and just recently another changed draft was posted --
all without any specific announcement that changes had been made.
What a mess.
It took this writer a while to
figure out the different versions. Even deputy county attorney
Adam Ambrose, who's uplifted the quality of legal advice provided to
the Commission, didn't believe this writer at first. However,
after some back & forth emails, Ambrose got matters straightened
out for the May meeting.
That conversation with Ambrose
was very productive. However, Ambrose hasn't offered equivalent
discussion about the merits of the proposed changes. CCIPRA
comments have gone to Ambrose, but no discussion has come back.
The best the discussion below can do is use Ambrose's notes about the
changes in what was posted before.
In the discussion below,
boldfacing in the online draft is ignored, and NOTES about citizens'
concerns are placed between < and > signs.
Here are CCIPRA's remaining concerns:
PART 1: DEFINITIONS
5. "Days" means calendar days unless otherwise noted.
<NOTE, there have been citizen suggestions that "days"
should mean "business days," especially when a deadline is
set for only a couple of weeks' time.>
6. "Dilapidated Building" means any building
[whose] strength or stability is substantially less than a new building
<NOTE, the comparison to a new building has drawn comments
that ALL old buildings are substantially weaker than new
buildings, so that this phrase gives very broad discretion
to an inspector. Attorney Ambrose states that the reference
to "substantially less than a new building" is required by
law; however, this writer hasn't located that statute.>
14. "Public nuisance" means [a list of trash]
that constitutes a hazard to the public health and safety as determined
by the Hazard Abatement Officer.
<NOTE, Should add "or by a hearing if one is requested.">
PART II: VIOLATION OF ORDINANCE ...
Violation. A person ... shall have created a public
nuisance and committed a violation of this ordinance if such person ...
without lawful authority and in a manner that constitutes a hazard to
public health and safety ...
2. ... permits ... for rubbish [etc.] to remain
upon contiguous sidewalks, streets and alleys in the County which are
dedicated and open to the public. [A.R.S. § 11-268.A]
<NOTE, in Cochise County, many people dump obnoxious trash
alongside unwatched roads. This is not a property owner's
fault, and owners should not have to pay to clean up trash
left by people without their permission.
& NOTE, the word "permits" sounds like a property owner has
a duty to resist anyone dumping near his property. This
might lead to armed confrontations.>
B. Duty to
remove. A person ... shall remove or otherwise abate a public
nuisance as defined herein within 30 days after mailing or personal
service of a Notice and Order ....
<NOTE, Mail dropped into the outbox on Friday may not be
postmarked until Monday. Wherever in this draft action is
required within a set time after mailing, the time should
start on the postmark date, not the mailing date.>
D. Notice and Order. The Notice and Order to Abate shall include the following:
2. A statement that the Hazard Abatement
Officer has determined that there is a reasonable belief that a
violation ... has occurred ....
<NOTE, The phrase "Officer has determined that there is a
reasonable belief" could be shortened to "Officer has a
reasonable belief". That clarifies the need to decide
the belief should meet a higher test than "reasonable.">
4. A statement that rubbish, trash, weeds,
filth debris or dilapidated building materials constituting a public
nuisance must be disposed of at an appropriate waste collection
facility or by other legal means and that a tipping fee receipt or
other evidence of legal disposal is to be submitted ....
<NOTE, A comma is needed between the words "filth debris".
If the trash is disposed of at home, e.g. by
burning, what is acceptable "evidence of legal disposal"?>
7. A statement that the owner, occupant or
lessee shall have fifteen (15) days from the post mark date ... to
<NOTE, 15 days might be insufficient notice for someone who
is traveling or in the hospital; how about 30 days?>
E. Appeal of Notice and Order to Abate. Any person receiving a Notice and Order to Abate may appeal ....
1. Notice of Appeal. A written Notice of
Appeal shall be filed with the Clerk of the Board within fifteen (15)
<NOTE, 15 days may not be enough; how about 30?>
3. Hearing on Appeal. ... the Board
shall, within a reasonable time, place the matter on the agenda at a
regular meeting or ... refer the appeal to the hearing
officer.... The hearing shall be informal and without regard to
the rules of procedure or evidence governing court proceedings.
The Board shall decide the appeal, and its decision shall be final.
<NOTE, CCIPRA much prefers the BOS to conduct hearings, not
refer hearings to an appointed person.
& NOTE, a person must appeal within 15 days and is
delinquent after 30 days. If the Board doesn't hear the
case within the 30 days, is the person noncompliant?
& NOTE, does "its decision shall be final" mean there is
no appeal to a court?
& NOTE, Several specific guarantees from the existing
version, Section 603, have been removed --
-- 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 ... in ... courts ....
-- 603(d), Any relevant evidence shall be admitted if
it is the type of evidence on which responsible persons
are accustomed to rely in ... serious affairs ...
-- 1987 Sec. 603(f) lists rights of each party,
including "To call and examine witnesses on any matter
relevant to the issues" and "impeach any witness ...."
All the existing specifics should be restored.>
4. Extension of Time for Compliance. 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 [an] Appeal and the rendering of the Board's decision.
<NOTE, is this intended to mean a stay is automatic?>
F. Removal by Board....
1. Cost of Removal. The costs assessed
for removal or abatement shall not exceed the actual costs and
incidental expenses thereof....
<NOTE, It's good that the illegal 5-10% surcharges are gone,
but how will "incidental expenses" be set and monitored?>
H. Notice of Assessment....
NOTICE: ... FORCECLOSE THE LIEN ...
<NOTE, "FORCECLOSE" should STILL become "FORECLOSE.">
The Notice of Assessment shall indicate that the owner, lessee or occupant shall have fifteen (15) days ... to appeal".
<NOTE, why not 30 days?>
K. Hearing on
Appeal. Upon receipt of the Notice of Appeal of Assessment, the
Board shall ... place the matter on the agenda at a regular meeting or
... refer the appeal to the hearing officer.... The decision of
the Board ... shall be final.
<NOTE, CCIPRA remains opposed to using a hearing officer
instead of the Board Of Supervisors.
& NOTE, no appeal to a court?>
Officer; Appointment and Duties. ... the Board may ... appoint a
hearing officer to review appeals of Notices to Abate and/or Notices of
<NOTE, CCIPRA strongly prefers that the BOS not delegate its
duties as a hearing board. CCIPRA will provide a
description of Rev. Harter's hearing before Jack Chapman.
No matter what one thinks about Harter or Miracle Valley,
that hearing was procedurally unfair. The Supervisors
should hear these cases, because it's the county that
profits from any fees and fines. There's one appointed
Hearing Officer, but there are 3 elected Board members; the
H.O. can dodge the consequences of being unfair, the Board
members can't. Besides, if a hearing officer is used,
where's the provision for a careful Board review, with
every participating Supervisor required to read the entire
transcript, listen to all of the audio recording, etc.>