This document is http://littlebigdog.net/HazOrdRevived.htm

On December 8, 2010, the County Planning & Zoning Commission will have a public hearing on the Planning Department's draft rewrite of the Hazard Abatement Ordinance ("HAO"); the Commission's recommendations will go to the County Supervisors on December 21.  See
   http://www.co.cochise.az.us/LegalNotices/R-09-02%20%282%29.htm

The Department's current draft of the HAO is at
   http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/hazard%20abate%20revised%2011%2015%2010.pdf

The current draft is, frankly, a disappointment to CCIPRA.  On July 13, 2010, CCIPRA had a meeting with Benny Young (then head of the Planning Department) and Rick Corley (handling the HAO revisions).  In one hour several issues were disposed of, but some remained, and Young agreed with some of CCIPRA's concerns.  Early on July 14, Young emailed CCIPRA that he would recommend tabling the draft at the Commission meeting that day, because the Department "cannot do justice to the issues you have raised before tonight's Commission meeting."  The Commission tabled the draft as Young asked; but later in the meeting, Young announced his resignation, and CCIPRA and the Department have not had any give and take since then.

Here are the points that CCIPRA raised in July.  There is still time to work on these before December 8, if the Department wishes.

Part I, Definitions

- Inappropriate rules for rural residents
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.
- COMMENT, That definition exactly follows ARS 11-268(J), but that statute is not well adapted to rural areas, which are filled with old buildings that are run down but useable, and pose no danger to the public.  State law must be followed, but the county could pass an ordinance defining "disrepair" and "damaged" so as to keep old buildings from being easily labeled as "dilapidated."  Also, the clause "and its condition endangers ... the public" suggests the possibility of a separate test for "endangers."

- Imprecise drafting
DEFINITION 12:  "Owner" means a person who is a record owner of real property ... and includes a person holding equitable title ...
- COMMENT, If this means to include a lienholder, it should say so, since ARS 11-268(A)(1) requires notice to both owners and lienholders.  The draft HAO often mentions "owners, lessees or occupants" but omits lienholders.  Stating here that "Owner" includes lienholder would resolve an ambiguity.

- Inflexible attitude toward property owners' rights
Definition 14, "Public nuisance" means a [condition] that constitutes a hazard to the public health and safety as determined by the Hazard Abatement Officer.
- COMMENT, Should add "or at a hearing if one is requested."  Citizens can request hearings, and the definition should make clear that a hearing can overturn an officer's decision about public nuisance.

PART II, Violation of ordinance, etc.

- Inappropriate rules for rural areas
A.  A person ... shall have created a public nuisance and 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]
- COMMENT, that language follows ARS 11-268(A), which once again is not well adapted to rural areas in Cochise County.
-- In many remote areas of Cochise County, there is a plague of dumping obnoxious trash, and when those areas are on "contiguous sidewalks, streets and alleys," property owners should not be liable for the cost of cleanup.
-- Also, "permits" implies that a property owner must actively attempt to forbid dumping on roads which he doesn't own.
-- The County could try to adapt the statutory language better to better suit Cochise County.  Consider:  "sidewalks, streets, and alleys" are found in and close to cities, while "roads" and "highways" tend to be found away from cities.  To apply this statute only to areas in and near cities, the ordinance could limit coverage to within 1 mile, say, of city limits.  However, the Department says that its counsel says this would not work, so another possibility comes to mind:  define "sidewalks, streets, and alleys" to exclude roads and highways more than, say, 1 mile from city limits.  That would comply with the statute but also treat rural areas separately from urban.  Several Commissioners have begun to speak about County codes that regulate rural areas by rules designed for urban areas; this part of the draft ordinance could use such attention.

- Inflexible attitude toward property owners' rights
B.  A person [etc.] shall remove or otherwise 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]
- COMMENT, the ordinance refers to ARS 11-268(A)(1), but is stricter than the statute, which begins "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 ...."
-- So the statute gives AT LEAST 30 days to comply, while the ordinance gives AT MOST 30 days to comply.  Why be so inflexible?
-- Another problem is one that recurs throughout the ordinance:  counting days and setting deadlines.  The Commission spent a good deal of time on this when it last discussed the draft ordinance.  For instance, snailmail sent Friday may not be received until Monday or later, reducing the time for a citizen to act.  Much of the Commission's discussion was about issues which are already covered in Arizona's Civil Rules of court procedure, especially Rule 4.1, about service of papers in cases within Arizona.  Here are samples of some parts of Rule 4.1:
- (d) Service upon an individual ... shall be effected by delivering a copy ... 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 ... to receive service of process.
- (k) Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association ... shall be effected by delivering a copy of the summons and of the pleading to a partner, an officer, a managing or general agent, or to any other agent authorized ... to receive service of process ....
- (n) Where the person to be served ... 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) When in ... any action involving title to real property, it is necessary ... that the unknown heirs of a deceased person be made parties ... service of a summons may be made on them by publication ....

- Denying due process by imposing term not in statute
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]
- COMMENT, ARS 11-268(A)(1) does not say anything like "failure to receive the notice shall not be a bar to" abatement, costs, or a lien.  Here's 11-268(A)(1) in full:  "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."  The draft's failure to follow the statute is a denial of "due process," which requires notice and an opportunity to be heard.

- Insufficient time for citizens to protect their rights
D.  The Notice and Order ... shall include ... 7. A statement that the owner [etc.] shall have fifteen (15) days ... to appeal ....
- COMMENT, 15 days may not be enough for someone who's traveling or sick; why not 30?  The same comment goes for E.1, below, and H, and wherever a time limit is set for citizens to act.

- Misleading citation, insufficient regard for citizens' rights
E.  Any person receiving a Notice and Order to Abate may appeal to the Board of Supervisors as follows [A.R.S. § 11-268.A.2]:
- COMMENT, ARS 11-268(A)(2) says the ordinance must contain "Provisions for appeal to the board of supervisors on both the notice and the assessments."  The statute does not contain any particulars about appeals, and the draft is not based on any actual language in the statute.

- Disregard for citizens' rights, and imprecise drafting
E.1.  A written Notice of Appeal shall be filed ... within fifteen (15) days after the Notice and Order ... was mailed or personally served.  The date of receipt by the Board shall be the date of filing.
- COMMENT, The same time problem here as in section D.1.
- Also, this doesn't contemplate an appeal by a person who doesn't get notice, but finds out later what happened.

- Disregard for citizens' rights
E.3.  Upon receipt of the Notice of Appeal, the Board shall, within a reasonable time, place the matter on the agenda ... or ... refer the appeal to the hearing officer....  The hearing shall be informal ....  The Board shall decide the appeal, and its decision shall be final.
- COMMENT, What's a "reasonable" time?  By placing strict deadlines on citizens, but giving itself leeway as needed, local government appears to be placing itself on a higher plane than citizens.
- Also, "[I]ts decision shall be final" implies that no appeal to court is available.  That implication should be removed.
- Also, several guarantees specifically stated in Section 603 of the existing ordinance have been removed:
-- 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."
- Those specific guarantees should be restored.

- Offering language that is known to be nonsensical
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.
- COMMENT, during the July 13 meeting, Mr. Young agreed that this language was a mess.  Literally, this language stays enforcement of a Board order until the Board rules on the appeal -- as if the Board were hearing an appeal of its own order.  It is most disappointing to see this language repeated without being fixed.

- Disregard for citizens' rights
K.  Upon receipt of the Notice of Appeal of Assessment, the Board shall, within a reasonable time, place the matter on the agenda ... or ... refer the appeal to the hearing officer....  After hearing all of the evidence presented, or after reviewing recommendations made by its hearing officer, the Board shall issue its findings in writing ....  The decision of the Board of Supervisors shall be final.
- COMMENT, CCIPRA remains opposed to the Board kicking hearings to a hearing officer.  ARS 11-268(A)(3) says the "ordinance shall require and include ... Provisions for appeal to the board of supervisors on both the notice and the assessments."  The statute does not contemplate the Board handing off that task.  See also the comments to Section P below.

- Disregard for citizens' rights
P.  ... 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 ....
- COMMENT, The BOS itself should hear these cases, as indicated by ARS 11-268(A)(3).  It's the county that profits from any fees and fines; the county Supervisors should do their duty.  The Board represents the entire county, and is accountable to the voters.  A Hearing Officer is appointed, and can dodge the consequences of being unfair; the Supervisors shouldn't try to dodge the risk of making decisions.
-- Even if the ordinance did let the Board hand off its duty, the vote to hand off responsibility should be unanimous, not just a majority.  If only one Supervisor wants to hear a case as provided in ARS 11-268, the other two Supervisors shouldn't be able to prevent it.
-- The draft ordinance provides no standards for Board review of the proceedings if a hearing officer is used.  Even judges have fallen asleep during trials; the Supervisors might not realize the importance of their responsibilities.  Before making a decision, each Supervisor should be required to attentively read or listen to all transcripts and other evidence, and certify to having done so.