EDITION 11 about OBOO,
Cochise County's
"Owner-Builder Opt-Out"


updated May 10, 2018
to comment, email Mike Jackson at empeejaxon@gmail.com

(for the Cochise County Individual & Property Rights Association, see http://littlebigdog.net )
 

OBOO -- THE "OWNER-BUILDER OPT-OUT" --
lets rural people build projects & homes with little red tape and low permit cost,
leaves people free to have Planning Department inspections if they wish,

and leads to homes just as safe as "Building Code" homes.


ORGANIZATIONAL NOTE -- Development Services is the new name for the old Planning & Zoning Department; whatever the name, the department is the same.  This writeup tends to use the new name; in any case, whenever "the Department" is mentioned, it means this branch of county government.


THERE'S AN UPDATE STARTING AT PARAGRAPH 45
about the County Supervisors meeting on May 8, 2018,
about increasing various county building fees.



THE BIG PICTURE

1, OBOO lets people on parcels of 4+ rural acres (outside the city limits of Sierra Vista, Benson, Bisbee, Douglas, Tombstone, or Willcox) build their own projects, up to complete homes, with little red tape and a low permit cost, basically $105OBOO is popular and safe, and OBOO builders can save a lot.

2, About 25 of building permits for all kinds of projects per year are for OBOO.  Of those, only about 2-3 homes are completed each year.

3, Rea
ltors and contractors attack OBOO because they think it hurts their profits.  The Southeastern Arizona Contractors Association (SACA), to which Supervisor Call is glued at the hip, says OBOO "is severely affecting local contractors in a negative way."  Seriously? -- two to three OBOO houses per year have SACA's manties in a twist?

4, This page aims at generating a more freewheeling discussion than meetings of the Supervisors or the Planning & Zoning Commissioners, which follow highly stylized rules of order, and ignore most public input. 
This page reflects conversations with County employees, and you should also see Supervisor Peggy Judd's Facebook page:
https://www.facebook.com/juddcounty/

5, The more feedback the better.  Feel free to pass this page around.  Let me know if you want off the mailing list or know someone who might want on. 
If you send comments, please say which Edition & paragraph number you're writing about (this is Edition 10, Paragraph 5).

6,
The discussion below is grouped into paragraphs:
    10+, OBOO is popular and safe
    20+, The arguments against OBOO are bad
    30+, The Building Code is a scam
    40+, Officials' opinions and conduct about OBOO
    50+, Contacting county government




OBOO IS POPULAR AND SAFE

10, OBOO began in resistance to the County Building Code, which was passed in late 2004 in anticipation of a population boom that never happened.  The Code imposes Sierra Vista-style restrictions, and hefty fees, on building in rural areas.  One person living on 4 acres is regulated as if the land were packed with people in the middle of town.  Soon, in mid-2006, in response to great public pressure, the County Supervisors passed OBOO.  See the minutes in Item 24 at
http://www.co.cochise.az.us/BOS/MeetingMinutes/06-06-06%20Minutes.htm
OBOO has been scrutinized and modified a few times.  You can read it for yourself at
https://www.cochise.az.gov/planning-and-zoning/owner-builde-amendment

11, During the 2006 resistance to the Code, 800 people signed a petition for OBOO.  They liked the freedom of country living, emphasized their self-reliance, and didn't like bullying by Code inspectors.  Many citizens spoke for OBOO at meetings.  Citizen Andrew Noll was eloquent:  people "live rurally for the freedom it offers....  no one from the rural community that I know of has come forward requesting that we impose codes on ourselves....  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?"

12, OBOO does not make homes less safe.  It does not exempt owner-builders from statewide plumbing and fire codes, nor regulations regarding smoke detectors, nor fire codes adopted by fire districts or the County; and each structure must be "built and maintained in a sound structural condition to be safe, sanitary, and to shelter the occupants from the elements."  The OBOO application stresses safety; the Department's "Owner Opt-out Packet" at
https://www.cochise.az.gov/sites/default/files/planning_and_zoning/Owner%20Opt%20Out%20Packet%2005222015.pdf
has detailed requirements about mechanical, electrical, plumbing, fire safety, and sanitation requirements.

13, OBOO may make homes more safe, because its users will live in the homes they build!  In 2006, then-P&Z Commissioner Walters said "contractors ... 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."

14, OBOO doesn't stop builders from getting Code inspections.  As Andrew Noll said, "if someone is so in need of having someone look over their shoulder ... 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."

15, OBOO is essential in areas that contractors find too remote to reach.  Never has the distinction between urban and rural needs been clearer.  I've seen this claim both denied and vehemently defended.  The issue deserves an airing.

16, OBOO may attract people to Cochise County.  People may move here for affordable housing and country living.  Nobody moves here because of the Building Code.


THE ARGUMENTS AGAINST OBOO ARE BAD

20, Department staff argued against OBOO at a Board of Supervisors (BOS) meeting on June 27, 2017, a Planning & Zoning Commission (P&Z) meeting on August 9, and an Advisory & Appeals Board meeting on August 15. 
Here's my recording of the P&Z discussion on August 9.
http://littlebigdog.net/OBOOPNZAug2017.mp3
It has a long statement by Mike Izzo (then the County Building Official, now retired) making the customary arguments against OBOO.  Below are responses to them, in case they are repeated in future.

21, Izzo
said contractors want a "level playing field."  Seriously? -- contractors think a playing field is level if they can force you to hire them?  When I asked Izzo in conversation if he thought the law should protect SACA profits, he said "No."

22, As to "level playing field," Izzo worried that Code inspectors can't snoop inside OBOO structures even if no problems are suspected.  However, the Constitution wouldn't let the County do that anyway.  Searches without a warrant or consent can't be made of contractor-built homes, and if such searches could be made of OBOO homes, the "playing field" would be tilted extremely against the rights of private citizens.

23, Izzo had some smaller worries:  that by looking at one side of a house, he can't see if there are bedroom windows on the other side
; that OBOO homes may be larger than the application states (although home area is irrelevant to an OBOO permit); that one OBOO builder used a shipping container (used on railroad flatcars) as a basement without counting it in the home's area; that OBOO homes can be hard to remodel, and remodelers may bid too low on jobs (though professional builders can write contracts with contingencies, and it's not the County's job to protect contractors from their own negligence); that OBOO homes may create hazards for later buyers (pure speculation, and in any case buyers can get home inspections); and that OBOO homes might not get street addresses (although $15 of the $105 OBOO fee is for rural addressing).  Piling up trivial worries doesn't make any of them significant.

24, OBOO fees don't bring in as much money as the County wants.  So what?  The OBOO fee pays the cost of issuing a permit, and OBOO fees shouldn't pay for other programs. 
During a similar power grab in 2010, people argued "This amounts to little more than blackmail to persuade owner builders to pay for the full county inspection" and "I was on the [P&Z] commission when [OBOO] was passed, the reason (I believe) the county wants to be involved is MONEY and harassment to put it simply."  Here's a discussion posted before the 2010 BOS meeting:
http://littlebigdog.net/OBOO2010.htm
The 2010 attempt resulted in expanding OBOO!  See Item 6 in the BOS minutes from March 2, 2010:
http://www.co.cochise.az.us/BOS/MeetingMinutes/3.2.10.htm

25, Killing OBOO won't bring in much more money.  The Department claims that in 2016, getting rid of OBOO would have garnered about $70,000 more in fees.  Not so fast:  OBOO is popular, but might be more popular if the Department gave better notice of it; County Supervisor Judd's Facebook page notes that in her experience, many applicants to the Department do not have their attention drawn to OBOO.  Returning to the figures for 2016:  with only about 25 OBOO users, $70,000 income would mean a fee of $2,800 per user -- a lot more than the actual OBOO fee.  The Department's income projection is wishful thinking, the same kind of wishful thinking employed to get the Building Code passed in 2004.

26, The Department hasn't proven that its
"process" results in safer homes.  The Department offers only anecdotes as evidence, but counter-anecdotes exist.  Supervisor English says her house is safe although built before County codes, and another citizen says "When we built our house in 2007-08 we did the whole permit thing with the County.  I still have the permit sheet where the inspector signed off on every part of the house.  I just had to replace my roof because it was put on wrong and has been leaking for 8 years!!  It was inspected and passed ... when it passed inspection the general contractor waved it in my face as proof the roof was right!  I had the roofers back at the house every time it rained ... until the company went out of business.  And the [state Registrar of Contractors] was just as useless.  Long story short, inspections mean absolutely nothing because the county takes no responsibility for the work they are inspecting".

27, To change a law so popular and helpful as OBOO, the Department needs to make very convincing arguments.  It hasn't.  The Department has tried to use math, but shies away when challenged:  Izzo first said that when people use OBOO, the lack of the Code process leaves "1/3 of our residents at risk of unsafe living conditions."  When I noted that the real number of OBOO homes per year is two to three, Izzo decided that the number of completed OBOO homes is too small to allow a valid numerical argument.  The Department has given no sign of doing anywhere near the work required to make a convincing argument.

28, The Department argues that OBOO drives home insurance rates up because of Insurance Services Office (ISO) standards.  That's not so.  The ISO checklist does not include "who built the home?"  For a discussion of specific ISO factors (they don't include OBOO) see paragraph 3 at the bottom of pdf p. 51
at
https://www.cochise.az.gov/sites/default/files/emergency_services/CochiseCWPP150105-WebsiteReady.pdf
And in any case, ISO ratings don't affect insurance rates.  Izzo noted that "staff spoke to four local insurance agents....  None of them use a location in the County as one of their criteria for determining how much a homeowner's policy will cost.  Staff also spoke to the AZ Department of Insurance.  They told us that sometimes some of the bigger companies will rely on their own information and do not use ISO."  For more information countering the fallacious "ISO" argument, see
http://www.fireserviceinfo.com/iso.html


THE COUNTY BUILDING CODE IS A SCAM


30, The County Building Code is long and complex.  It's basically the International Building Code with many modifications.  It was adopted here in 2004; its current version is at
https://www.cochise.az.gov/planning-and-zoning/building-safety-code
For perspective, here's a writeup from 2009, talking about the Code mess then:
http://littlebigdog.net/DumpTheBuildingCode.htm

31, T
he Code wasn't passed for safety reasons.  When then-Department head James Vlahovich pushed the Code in 2004, rural buildings weren't suffering a rash of falling down or burning up, and Vlahovich "was not able to recount actual deaths due to lack of codes."  Citizen Kelly Savage said "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....  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."  Ben Susman said the Code was "chasing a problem that doesn't exist....  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....  There just doesn't exist a problem at this point in time."  Not in 2004, and not now.

32, Department employees are paid to be at work.  Their pay comes from your taxes.  If you must then pay more to obtain service from employees, you may well ask "What do I pay taxes for?"  Well, obtaining unearned income for the County, in addition to taxes, was the real purpose of passing the Code.  Vlahovich predicted "The start up cost for the entire program ... would be $540,000 and the ongoing cost would come to $400,000 per year....  the plan would pay for itself in about 3 years and only be subsidized by the General Fund for the start-up period.  Thereafter, the users of the services would be paying for the services through permit fees."  See Item 12 at
http://www.co.cochise.az.us/BOS/MeetingMinutes/12-14-04%20Min.htm

33, The population boom never happened, and the Code has always lost money. 
The Department tried to conceal the losses; in 2006 a Department employee said the Code was paying its way, but in 2007 the truth came out:  a $64,000 deficit in 2006.  For 2008, the Department's books revealed a deficit of about $422,000.  Then the Department adopted an accounting method that hid the numbers.  On July 19, 2017, Izzo acknowledged an annual loss of about $800,000, and later the calculated loss grew to about $1 million per year.  This is wrecking the County budget.  And cost per citizen will get worse, because we're now the 4th-fastest SHRINKING population in America, by percentage.

34, The Department's rationale for fee hikes is "other counties charge more, so we should too" -- the old "everyone else is jumping off a cliff, so you should" argument.  Izzo argued to me that people should not balk at a permit fee of 1%, 3%, even 5%, since they are willing to spend hundreds of thousands of dollars on a house.  Supervisor Call has said that he will support the biggest increase proposed "because it is not a big increase for new home construction."  Those are arguments for picking your pocket for whatever you will stand for.  It's pure political greed, without any rational basis.

35, Even the biggest proposed fee increase couldn't come close to ending a Departmental deficit of about $1,000,000 per year.  Keeping the Code scam on life support will keep the County treasury slowly bleeding.
  Why raise prices on a product that people don't want?  Why not just end the scam that's been failing since it was passed?

36, The Code may discourage immigration to Cochise County, and dumping the Code would benefit rural areas. 
Without the deficit from administering the Code, we could spend more on roads and transportation, libraries, law enforcement, and so on.  Rural areas are impoverished by the Code scam.  Also, dumping the Code could reduce ill will that's been created by thuggish Code inspectors in the field, and disrespect for the law at headquarters.  When the Code was passed in 2004, a "review and evaluation" was promised, apparently by "Supervisors, Planning & Zoning staff, County Attorney staff, experts in the field of building codes, builders and developers, and interested members of the public."  That never happened.  See
http://littlebigdog.net/DumpTheBuildingCode.htm
Worse, after passing the Code, the Supervisors ignored state law.  State law required an Advisory Board to be created when a Code is passed, but the Supervisors stalled in creating the Advisory Board for almost nine years, during which the County Attorney's Office knew the law was being broken.  See
http://littlebigdog.net/AdvisoryBoardTrainWreck.htm

37, The County needs to rebuild trust among rural residents, and recent changes, discussed in the next section, may mean the time is ripe.



OFFICIALS' OPINIONS AND CONDUCT

40, County bodies met several times in 2017 about OBOO and Code fees, and proposed some very complicated calculations (see paragraphs 30+ in Edition 10 ) using methods that were not necessarily kosher (see paragraphs 40+ in Edition 10 ).  I'm using those links to point to the 2017 proceedings, instead of discussing them in detail, because in early 2018, the County Supervisors had a work session with very different substance and attitudes.  The landscape is now much better for rural residents.

41, At the 2018 meeting, the agenda -- see this agenda -- was
"Discussion and possible direction regarding adjustment to the proposed Building Fee Schedule."  Unfortunately, the meeting also discussed abolishing OBOO, which was a violation of the Open Meeting Law -- but the discussion took a surprising turn.  Supervisor Call, as always, opposed OBOO despite the facts, but Supervisors English and Judd used their brains and considered the facts.  Judd noted that if few people use OBOO, it can't hurt the County to leave OBOO alone, and that in any case County residents like having the freedom to use OBOO.  The outcome of the discussion was that OBOO won't be discussed again until Fall.  There has never been a better time for rural residents to tell the Supervisors, about OBOO.


42, Meanwhile, as far as building fees, the agenda said "
staff is proposing flat-rate fees for the more straightforward and simpler permits that require minimum review and typically one or two inspections."  The flat-rate fees are an incredible simplification.

43, The simplification is welcome, but it seems at odds with the Memo's statement that the flat rates constitute "a few minor changes."  The result of calling the flat rates a minor change is that the flat rates will not go to the Planning & Zoning Commission, and the Building Code Advisory & Appeals Board, for evaluation.  With such great changes, should the process now proceed as if the P&Z Commission and the BCAAB had approved the new rates?  In my opinion, this is arguably not so; however, I've asked Dan Coxworth, the new head of Development Services, about this, and he disagrees, and I don't see the issue as so clear that it's worth going to the mat for.

44, In any case, with Coxworth's appointment, Development Services seems to be going in a much, much more user-friendly direction. 
The expressed attitudes of Coxworth and the new County employees administering the building code were quite different from the hostile attitudes of the past.  The emphasis expressed now, which staff took great care to make clear, is on friendly and helpful service, not on technical and hostile obstruction.  If this works out, then a good deal of hostility that the County has generated over the years will dissipate.  Let's hope, and encourage this change.


THE UPDATE STARTS HERE

Added May 10:  The 15-day notice issue in paragraph 46 below was addressed when Dan Coxworth provided a copy of notice published in a Benson newspaper on April 18.  I originally thought that settled the issue.  However, upon re-reading the Open Meeting Law on May 10, I noticed that the OML requires notice to be published on the County website, and the notice published there did not meet the 15-day requirement.  Perhaps the County will argue that publishing a notice in a newspaper obviates the OML requirement to timely publish online.  As to the other issues, we'll have to see how the Supervisors handled them in the meeting.


45, The Supervisors will consider raising building fees at 10 a.m. tomorrow, May 8.  This is Resolution 18-06, Item 6 on the agenda.  The Resolution as originally posted has a "whereas" list including:
    "WHEREAS, the Building Code Advisory and Appeals Board unanimously recommended approval of these amendments at their meeting on October 3, 2017; and
    "WHEREAS, the Planning Commission unanimously recommended approval of these amendments at their meeting on November 8, 2017".  However, there was no October 3 meeting of the Advisory and Appeals Board, and the Planning Commission did not discuss building fees on November 8.  I emailed Dan Coxworth, head of the Planning Department (aka Development Services) about this, and he considerately answered that the Advisory & Appeals Board item should say August 17, and the "reference to the P&Z Commission will be deleted since they have no purvue over building fees."  I appreciate Dan's answer, and I think it's an example of why the current Planning Department administration is the best ever.  Yet problems remain.

46.  A question was raised by my friend George Walsh, of ACIPRA (the Apache County counterpart of CCIPRA), about possible lack of notice before May 8's Supervisors hearing about raising building fees.  An e-notice of the hearing was published on April 24, two Tuesdays before May 8, by the Planning Department, at
https://www.cochise.az.gov/legal-notices/legalnoticebosr-18-01fees
But two Tuesdays before May 8 isn't 15 days before May 8, as required by ARS 251-08, at
https://www.azleg.gov/viewdocument/?docName=https%3A%2F%2Fwww.azleg.gov%2Fars%2F11%2F00251-08.htm
The notice requirements are jurisdictional, so if the Supervisors pass an ordinance without following the time requirement, the ordinance will be invalid, and open the County up to litigation.  Now, the Department may have posted paper notice before April 24, but I can't search paper notices, so I've asked the Department to tell me if notice was published before the e-notice.  I think this must be addressed before the Supervisors proceed.  I hope the County Attorney's Office won't tell the Supervisors that the difference between what they want to do, and what the law requires, is only a little difference so they can ignore it.

47, As to the Planning Commission, is cutting it out of the loop a change in County policy?  At a February 27 Supervisors work session, Dan said "the PNZ commission, and building code advisory boards have already reviewed" the proposed changes.  See
http://agenda.cochise.az.gov/mindocs/2018/WKS/20180227_1414/465%5F02%2D27%2D18%5F755%5FMINUTESpacket%2Epdf

48, As to the Advisory and Appeals Board, it hasn't seen the changes that the Supervisors will see tomorrow.  It was August 2017 when the A&A Board last saw proposed changes:  complicated calculations based on a building's "construction value" or area.  You can see them at
http://agenda.cochise.az.gov/agenda_publish.cfm?id=&mt=ALL&get_month=7&get_year=2017&dsp=agm&seq=3555&rev=0&ag=1317&ln=47408&nseq=0&nrev=0&pseq=&prev=#
In 2018, the 2017 changes were abandoned.  At a February 27 Supervisors work session, Dan Coxworth said "The previously proposed fee schedule listed all residential trade permits fees as per construction value [but now] staff is proposing flat-rate fees for the more straightforward and simpler permits that require minimum review and typically one or two inspections."  See
http://agenda.cochise.az.gov/docs/2018/WKS/20180227_1414/3836%5F2%2E27%2E18%20Memo%2018%2D01%20Building%20Fees%2Epdf
But the A&A Board hasn't seen those changes.  Dan Coxworth emailed me in March that he would "email the BCAAB members who are contractors or architect (those with skin in the game) letting them know the change to a flat rate and that the revised draft fee schedule is available."  Emailing selected members of a board is no substitute for a public meeting at which all the members can discuss a change in fees as a group.  [Note:  I'm a little upset by the idea that only contractors or architects have "skin in the game."  Every fee that contractors and architects pay to the County is passed through to their customers.  The denigration of ordinary citizens is an anomaly for the new Planning team.]

49, To sum up, the fees the Supervisors will consider Tuesday are not what the Advisory and Appeals Board saw in August 2017.  It may take a little more time to handle fee increases properly, but the County budget won't collapse if the Supervisors take the time to do this right.


CONTACTING COUNTY GOVERNMENT


50, Few elected officials use the County email system.  The telephone is a much better way to give your opinion.  The most useful number at the County is (520) 432 9200.  You may end up at a different number, but that number is a good starting place.

51, If you must use email, here's the skinny:  Three elected County Supervisors (currently Pat Call, Ann English, and Peggy Judd) oversee all county government.  They hire employees to fill the Development Services Department, which mainly administers regulations.  Also, each Supervisor names unpaid volunteers to the Planning & Zoning Commission, which mostly handles applications for zoning, "special uses," and variances, but also does other tasks that the Supervisors assign -- like reviewing OBOO.

You can email the Supervisors via the link on

https://www.cochise.az.gov/board-supervisors/home
And you can see County Supervisor Judd's discussion at her page on Facebook
https://www.facebook.com/juddcounty/

You can email the P&Z Commissioners at their County email inboxes, although in my experience such emails tend not to be opened, and in any case such emails have little or no privacy.  The Commissioners appointed by Supervisor Call:
Tom Borer at dist1b@cochise.az.gov
Wayne Gregan at dist1a@cochise.az.gov
  Kim DePew at dist1c@cochise.az.gov
and appointed by Supervisor English:
Pat Edie at dist2c@cochise.az.gov
Patrick Greene at dist2b@cochise.az.gov
Nathan Watkins at dist2a@cochise.az.gov
and by Supervisor Judd:
Gary Brauchla at dist3b@cochise.az.gov
Jim Martzke at dist3a@cochise.az.gov
Carmen Miller at dist3c@cochise.az.gov

You can also email County employees, who actually do tend to read their emails:  County Administrator Ed Gilligan (whose job is to supervise the County's employed staff) at egilligan@cochise.az.gov , and Dan Coxworth, mentioned above, at dcoxworth@cochise.az.gov .  I apologize, but I don't have the email for the new Building Official at hand.