This document is http://littlebigdog.net/OBOO.htm, and was last modified at 12:17 p.m. on February 16, 2010.

Proposed changes to Owner-Builder Opt-Out (OBOO)

OBOO was passed by the Supervisors on June 6, 2006.  The minutes of that meeting are at
    http://www.co.cochise.az.us/BOS/MeetingMinutes/06-06-06%20Minutes.htm

The existing OBOO plan is online at
    http://cochise.az.gov/cochise_planning_zoning.aspx?id=1658&ekmensel=c580fa7b_182_360_1658_2
The draft changes are online at
    http://littlebigdog.net/PacketOBOO.pdf

Unless things change, the Supervisors will discuss the proposed changes on March 2, 2010.

This writeup covers only the most notable proposed changes, and concludes by suggesting a two-branch ordinance making OBOO available in:
    (a)    Areas presently zoned RU, SM and SR with a required and actual minimum lot size of 4 acres or greater of land located in Category D, Rural or Rural Residential - designated areas;
    (b)    For areas not described in paragraph (a), in any parcel of adequate size and configuration to maintain a minimum setback distance of 20' in every direction from the residence to the property line.


I.    The proposal to require a 75' setback from the property line

The proposal to expand the setback to 75' is made at two places in the draft, Sections 1 and 2.

The present setback is the same as for any residences, 20'.  A 75' setback is larger than the County requires for any homes now.  For mobile home parks, in fact, the County requires only 10'.


A.    The setback would gut OBOO.

OBOO is universally acknowledged to be a success in the 90% of the County where it's already available.  However, a 75' setback would gut OBOO throughout that 90%, in exchange for the possibility of a very small benefit to about 1% of the County.

OBOO is now available in about 90% of the County, on lots of 4 acres or more.  On a 4-acre lot, the present 20' setback leaves 3.24 acres buildable, if there are no problems with flood plains, washes, vegetation, etc.  A 75' setback would cut the buildable area exactly in half, to 1.62 acres.  Of course, with a 75' setback, a lot that's only 150' wide can't use OBOO at all.  So a 75' setback would severely limit OBOO even on lots of 4 acres.

If small lots, such as 36,000 sf, are clumped together until the clump reaches a total of 4 acres, giving them OBOO is great.  But barely 1% of the County is zoned in this size; why should extending OBOO to this 1% harm the 90% of the county where OBOO is already available?

Citizen emails on the setback issue include:
    "if the Planning Dept cannot do simple math ... they have no business being in the business."
    "Instead of making this opt out a break for the individual who chooses to opt out you have now placed a punishment on that owner builder.  Many lots in Cochise County have issues with washes, vegetation and soil conditions that would need to have the home moved one way or the other on the lot....  Ms Buchan statement regarding explosions is absolutely totally ridicules....  Totally off the wall ....  it seems there is no real logical thinking going on in the Planning Department ...."


B.    The Department has not shown any need for a greater setback for OBOO homes.

When Susan Buchan was head of the Planning Department, her presentations acknowledged that "owner-builder opt-out homes ... may or may not have any additional safety issues ...."

Despite having no data, Buchan raised the specter of flaming, flying debris if a gas furnace explodes.  Buchan showed a slide about an explosion in a 24-year-old, $521,000 log cabin in Colorado.  She did not, however, point to any such explosion in Cochise County; she did say that in the United States "about once a month, someone's house blows up."  But Cochise County has very few people, and once a month for the entire country, only means once every 192 years in Cochise County.

Insurance industry figures are more pessimistic:  once every 100 years.  Yet for every American who dies in such an explosion, 124 of us will die in a car wreck, 91 in a fall at home, and 9 on a horse.  Increasing the setback on OBOO homes is a solution without a problem.

In January 2006, when the P&Z Commission first considered OBOO, CCIPRA's then-Chair Kelly Savage looked back to December 2004, when the Supervisors were considering the county building code, and James Vlahovich, then head of the Planning Department, argued for passing the code.  Savage noted that Vlahovich said "'he was not able to recount actual deaths due to lack of codes.' ...  He emphasized that he was really talking about fire safety.  The one big fire danger the codes could protect us from is aluminum wiring.  And Mr. Vlahovich wasn't even able to point to one instance of a lethal fire caused by aluminum wires.  Prior to sales, mortgage companies conduct inspections, and require all safety defects to be brought up to code.  Historically, the biggest fire hazard out here isn't electrical, but from lightning strikes.  No building code will protect any of us from lightning strikes.  Most house fires are caused by human error.  No building code will protect us from stupid acts unrelated to construction.  A fire truck will not be able to make it down some non-county-maintained back roads anyway.  So safety concerns are not your real reason."

At the same meeting in January 2006, owner-builder Ben Sussman stated:  "I think that's what going on is that we are chasing a problem that doesn't exist.  Up to this point, we have no demonstrable examples, either of formal or informal public or private histories, of building failures that have caused a problem -- safety or health problem.  We don't have any examples of roofs coming off, flying across the Valley, and decapitating anybody.  We don't have any examples that have been presented of fires because of faulty wiring.  People drowning because of improper sweating of copper pipes or anything.  There just doesn't exist a problem at this point in time."

In the four years since the statements of Kelly Savage and Ben Sussman, the Department has still not come up with evidence of any special risk from OBOO homes.  The Department is clearly not acting based on evidence.

Citizen emails on the "size of setback" issue include:
    "Instead of making this opt out a break for the individual who chooses to opt out you have now placed a punishment on that owner builder.  Many lots in Cochise County have issues with washes, vegetation and soil conditions that would need to have the home moved one way or the other on the lot....  it seems there is no real logical thinking going on in the Planning Department ...."  Buchan answered "Thanks so much for your input.  I wish you had been able to the Special Meeting, as I believe you would realized this is much more flexible than the previous version."  The citizen emailed back, to Buchan and eight Commissioners, "The citizens of Cochise County deserve better than this!"


C.    OBOO homes are probably safer than builder-built homes.

Many people have expressed the thought that a person building his own house to live in tends to be extra-safe.

At the P&Z Commission meeting way back on February 8, 2006, Commissioner Walters said "licensed contractors should be subject to rigorous inspection ....  They are going to build to [code], they are not going to build any better.  The people -- the few people I know -- who built their own homes, built substantially better, by and large."

Citizen emails on the safety issue include:
    "Ms Buchan statement regarding explosions is absolutely totally ridicules....  Totally off the wall ...."


D.    The Department's wish for a greater setback on OBOO homes is inconsistent with the Department's position in other matters.

Mobile home parks:  If the Department were truly concerned about exploding propane tanks, then the Department would long ago have gone after mobile home parks.  Mobile home parks are filled with propane tanks, yet in Cochise County parks, mobile homes are only required to be 15' apart from each other, and 10' away from property lines.  Mobile homes aren't having a rash of explosions, but there is no conceivable reason to let mobile homes be only 10' from lot lines, but require a 75' setback for OBOO homes.

Cluster developments:  If explosions were a real concern, why would the Department encourage apartments and cluster developments, whose walls either touch or are quite close?  They're no safer than OBOO homes, yet on January 13, 2010, the Department favored a Habitat For Humanity development of 15-18 homes clustered together on not quite 2 acres.  That proposal is another item on the BOS agenda for February 23.  If safety were a problem, and separation were the solution, the Department would oppose clustering.  Since the Department favors clustering, safety must not be the Department's concern.

Citizen comments about the Department's inconsistencies include:
    "Automobiles are certainly suspect with their tanks of gas as are propane tanks.  Perhaps ... inhabitants of these outback areas should be made to wear ... protective clothing...."
    "They said at first that they wanted to change it so MORE PEOPLE COULD PARTICIPATE.  Why would they want to do that if they feel it's so unsafe?  They speak with forked tongues."
    "the burden of proof should really be on the county! ...  it is none of their business either way, this is private, not public property we are talking about!"


E.    The Department's wish for a greater setback on OBOO homes is consistent with a wish by the Department to gain more income, regulate for the sake of regulation, and expand the size of local government.

As to revenue:  The less OBOO is used, the more fees the Department takes in.  In this context, comments by Supervisor Searle at public meetings are instructive:  an OBOO permit costs $75; otherwise, a permit for a small home might easily cost $1500 to $2500.  Citizen comments include:
    "the recently proposed setback increase for owner built homes is ridiculous.  This amounts to little more than blackmail to persuade owner builders to pay for the full county inspection."
    "I was on the [Planning & Zoning] commission when the owner builder ordinance was passed, the reason (I believe) the county wants to be involved is MONEY and harassment to put it simply."
    "an inspected furnace can blow up years after its inspection... [Did furnaces in homes] built prior to the IBC have to be inspected?  Do they require annual inspections?  I don't think so...So what is the real agenda here?"

As to regulating for the sake of regulation:  When Buchan said that "owner-builder opt-out homes ... may or may not have any additional safety issues," she added "it's just that without the opportunity to ... actually inspect, there is no way we can verify that installation is done properly."

As to the size of local government:  At the January 11, 2006, Commission meeting, citizen Andrew Noll said "I can't help but noticing that the most common theme here is that rural people simply do not want to be imposed upon by their government.  And they have chosen to live rurally for the freedom it offers.  So in regards to that, no one from the rural community that I know of has come forward requesting that we impose codes on ourselves.  So if we can take that to a logical course of thinking, who are we legislating this ordinance for?...  we need to take more responsibility for our own safety and for our lives in general.  So why have a government impose things on a sector of the population that clearly doesn't want it?...  And furthermore, if someone is so in need of having someone look over their shoulder, or giving a stamp of approval on what they have done or what they have hired a contractor to do, they are entirely free to go to Planning and Zoning and get as many inspections as they desire.  It is as simple as that.  We are not trying to impose limitations on people who want to get inspections.  We are just saying that we don't want them, as a rural people."


II.  Other proposals in the draft


A.    Withdrawing encouragement of alternative construction

At present, OBOO is designed "to encourage the use of ingenuity and personal preferences of the owner-builder in allowing and facilitating the use of alternative building materials and methods."  The draft, however, merely says OBOO is designed "to allow the owner-builder the option to construct their own residential structures without County plan and inspection oversight ...."

To remove positive encouragement of alternative construction would be to renege on OBOO's original promise.  On January 11, 2006, James Vlahovich, now Deputy County Administrator, presented two options for OBOO, and said that "Both options encourage the use of alternative construction, such as straw bale or rammed earth."

On March 21, 2006, then-Department head Judy Anderson wrote a memo stating that "Cochise County encourages the use of appropriate alternative construction methods such as straw-bale and rammed earth."

Those statements should not be forgotten now.


B.    Requiring jobs for "registered design professionals"

At present, OBOO says that "any change of use involving [OBOO] structure(s) must comply with the Cochise County Building Safety Code."  In the draft, section 27 says that "Any change of use of a residential dwelling to a commercial use shall require certification by a registered design professional that the building complies with the currently adopted Cochise County Building Code."

It's not even clear what a "registered design professional" is.  Here's a news item from November 11, 2009:  "A code change was recently considered by the International Code Council (ICC) Administrative Code Committee at its code development hearings in Baltimore, MD, that would have changed the existing definition of 'registered design professional' ... to recognize only an 'architect or engineer' as a design professional who may submit plans to a building official for permit.  This code change ... did not pass, meaning that the existing ICC code definition ... was retained:  'an individual who is registered or licensed to practice their respective design profession as defined by the statutory requirements of the professional registration laws of the state or jurisdiction in which the project is to be constructed.'"  The full item is at
    http://www.officenewswire.com/9251

In any event, rural areas have somehow managed to get by without "registered design professionals" until now.  Is this change to OBOO absolutely necessary -- or is it a way to discourage use of OBOO, or job creation bill for "registered design professionals"?


III.    Conclusion

This writer suggests that the changes to the existing ordinance be minimal, and add additional OBOO coverage without reducing the existing coverage.  A two-branch ordinance can simply state that OBOO will be available in:
    (a)    Areas presently zoned RU, SM and SR with a required and actual minimum lot size of 4 acres or greater of land located in Category D, Rural or Rural Residential - designated areas;
    (b)    For areas not described in paragraph (a), in any parcel of adequate size and configuration to maintain a minimum setback distance of 20' in every direction from the residence to the property line.