CCIPRA
February 7, 2010
Cochise County
Individual & Property Rights
Association

For more info, email HERE and put "CCIPRA" in the subject line
or phone Helene Jackson 642-1760
A SAMPLE OF WHAT CCIPRA IS ABOUT

CCIPRA exists to oppose realtors and developers, and their government enablers, who want to make money by taking away your individual and property rights.

Big subdivision developers claim the public can't stop big subdivisions.  But citizens defeated the giant Smith Ranch in 2006, and in April 2007 the developers pulled the plug on the Anthem project near Benson.  The Bachmann Springs project has evaporated, and the developer's plans for Sunsites have dried up.  Artificial injection of population into rural areas is not inevitable.  Rural people can stop big developers if we organize and fight back.

In Cochise County's Zoning Regulations, Article 3 Section 307 says "Any use not permitted in a district ... is specifically prohibited from a zoning district."  "Whatever isn't permitted is prohibited" doesn't sound like America.
When government officials believe
that if they don't allow it, you can't do it,
and that you shouldn't mind bad laws being passed,
because the present officials aren't really bad guys,
then the officials should be pulled away from the public trough,
and the laws they pass should be rewritten,
to follow American ideals and the Constitution.
* * * * *
CONTENTS

Click on a blue link to get to an item -- return via your browser's "back" arrow

Upcoming Events -- recent events -- participating in Cochise County public life -- County government's worst running sores
A special award to
appointed deputy county attorney
Britt "I Am the State!" Hanson

In a heated email to this writer on January 6, deputy county attorney Britt Hanson asserted "you do not think that County government serves a valid purpose".

This writer criticizes bad government, including violations of the Open Meeting Law and Public Record Law.  Those laws are about as important as laws gets, because they prevent sleazebag politicians, from the top of the state down to local tinhorns, from making decisions in back rooms.  An appointed deputy county attorney's job includes defending his clients -- but his job also includes advising them not to break the law.  Yet Hanson's clients keep violating the Open Meeting Law and Public Records Law.  Either they are exceptionally dense, or Hanson's advice is lukewarm.

Hanson seems to think that criticizing his conduct equals attacking government -- that disagreement with him equals disloyalty.  That attitude suits an anointed king, not an appointed employee.  It wins Hanson the "I am the State" award.

Hanson's timing was as bad as his thinking.  On January 3, this update praised County officials for some work they did:  "Thanks to the County Attorney's office for doing the right thing, Ann English for agreeing, Katie Howard for writing the memo, Gussie Mottie for circulating the memo."  Only three days later came Hanson's silly attack.  What do you have to kiss around here for Hanson to be satisfied?
UPCOMING EVENTS


To get on the list for the CCIPRA email, published once or twice a week, email
    mpj@vtc.net
and put "CCIPRA email" in the subject line.  Thanks.

>>
THE ANIMAL CONTROL ORDINANCE
will go to the BOS on February 23.
The "Animal Control Officer" job will probably be closely scrutinized,
because of Animal Control Officer Crystal Callahan's
seizure of over two dozen dogs,
who supposedly all died when a court ordered them returned --
-- so the County got itself sued again.

Many citizens have done a good deal of work looking at the proposed ordinance, and in any event the county's version of the ordinance is obviously nowhere near ready for public presentation.  For a "citizen-based" rewrite of the ordinance, see
    http://littlebigdog.net/AnimalUpdate.htm
which also has links to all kinds of info about the animal control ordinance, and an email for making your own comments.

The County's version of an update has been the responsibility of deputy county attorney Britt Hanson (aka "BIASH," see the opening section of this site).  Months ago Hanson's work was called a lawyer's nightmare by one high county official.  Hanson hasn't just been slow, he's been unresponsive to public input. For instance, for months Hanson's draft mentioned ARS 11-251.47; there is no such section, but Hanson wouldn't explain what he meant. Finally, after his boss was contacted, Hanson said "There is a 11-251.47" -- because there's a 251(47) -- as if a lawyer shouldn't care about the difference between 251.47 and 251(47)!  Hanson, however, whined that "usually the only people that care about the citations are government lawyers" -- which doesn't explain why, when citizens showed that they too cared, Hanson ignored them until his boss got involved.  Hanson is virtually begging to have citizens watchdog him with care.  The preceding sentences were posted on Feb 2; on Feb 3, the Clerk of the BOS has posted Hanson's latest draft rewrite.  To see it in two versions, and a comparison of it to the November 2009 draft, go to
    http://littlebigdog.net/AnimalOrdCompareFebToNov.htm
At first look, it doesn't look like too much citizen input was adopted; a closer look will follow soon.
The conduct which may make it difficult for the "Animal Control Officer" job to survive a rewrite unscathed is the subject of Bob and Barbara Ratliff's lawsuit.  The Complaint is online at
    http://littlebigdog.net/AnimalControlComplaint.pdf
That file contains all 19 pages of the complaint.

 This is the case where the County seized over two dozen dogs and filed numerous animal cruelty charges, farmed out the dogs while the charges proceeded, refused to return the dogs during that case despite court orders, and then, after the charges were dismissed, suddenly said "all the dogs have expired."

The defendants are Cochise County, the County Sheriff's Office, County Animal Control, Animal Control Officer Crystal Callahan, People Assisting Kindred Spirits, the Pencin Veterinary Clinic, the Pantano Animal Clinic, Mary Pencin, Marjorie "Heidi" Tipling, Donna M. Cecil aka Donna M. Dunham, Karen Radcliffe, Darlene L. Burnett, Mary Hinton, Sherry Hoard, and Janelle Rodenburg.

As of the morning of February 1, the only defendants which the court website lists as having been served are Karen Radcliffe and the Pantano Veterinary Clinic.  However, the date of service for those is given as January 13, so there may just be a delay in posting who's been served.  The website to go to is
    http://apps.supremecourt.az.gov/publicaccess/
Just input "ratliff" as the last name, and choose Cochise Superior Court, then click on the case which comes up for Bob Ratliff.

The Complaint has eleven counts:  "Unlawful Search & Seizure," "Wrongful Taking" (federal), "Violation Of Right To Privacy," "Wrongful Taking Of Property" (state), "Negligent Entrustment," "Negligence," "Civil Conspiracy Pursuant To [ARS 13-2314.04]," "Malicious Prosecution," "Conversion," "Aiding And Abetting Tortious Conduct," and "Respondeat Superior."  If only all those dogs hadn't suddenly died in County custody, the County wouldn't have all this work to do. 

>>
OBOO (Owner Builder Opt Out)
will also go to the BOS on March 2
The County changed the date of OBOO from February 23 to MARCH 2.
The new notice is posted at
      http://www.co.cochise.az.us/LegalNotices/R-10-01%20REVISED%20BOS%20legal.htm

The original notice is at
    http://www.co.cochise.az.us/LegalNotices/R-10-01%20BOS.htm

Moving OBOO to March 2, instead of February 23, was a good idea.  With the proposed changes to the Animal Control Ordinance also coming up on Feb 23, that might have been one long meeting.
    Making the notice a little more accurate was a good idea too.  The change wasn't much:  a sentence in the original notice said "the Board of Supervisors may also consider their original proposed amendment of a minimum setback of seventy-five (75) feet from the subject property line in all directions."  The change is tacked onto the end of that sentence:  "or may consider a lesser setback."
    Today's notice doesn't just do what the Planning Department should -- come right out and say that there were two votes -- but at least it mentions a lesser setback, which is what the P&Z Commissioners voted for.
    Half a loaf is better than none; and in Cochise County, where the old boys' net has so long had its own way behind closed doors, even half a loaf is almost a miracle.  Well done, to whomever at the County bit the bullet and improved -- not perfected, but improved -- the County's notice.

    In December, the BOS sent an item to the county Planning & Zoning Commission. The BOS wanted the Commission's opinion of a particular proposal about OBOO.  The proposal said it would "expand" OBOO, but actually it would diminish OBOO.  The proposal would let smaller lots be clumped together to reach the 4-acre area requirement, but OBOO homes would have to be set back 75' from the lot line, instead of the present 20'.
    On a 4-acre lot, the present 20' setback leaves 3.24 acres for building.  A 75' setback would cut the buildable area exactly in half, down to 1.62 acres.
    The Commission saw right through that proposal.
    The Commission took two votes.
    First, 7-0 to reject the proposal that the BOS sent down, for "expansion" but with a 75' setback.
    Second, 5-2 in favor of a real expansion of coverage, keeping the present 20' setback.
    After the Commission votes, the result is supposed to be forwarded to the BOS.  The Department does the hand-carrying.  However, the Department has not always forwarded the actual votes to the BOS.  The Department has been caught before, and it looks like the Department has just been caught again.
    The Department's notice of the result of the January 13 Commission meeting is at
        http://www.co.cochise.az.us/LegalNotices/R-10-01%20BOS.htm
but it only mentions one of the two votes by the Commission.
    The notice says that the "Commission at a public hearing held on January 13, 2010 recommend[ed] ... that the revisions replace the eligibility based on ... zoning district categories and 'D' Growth Category ... to eligibility based on minimum four-acre lot size and zoning designation, regardless of Growth Category designation. Setbacks would remain the same as they are currently for the zoning district." That is, the notice mentions the second vote, the 5-2 vote, but the notice doesn't mention that the Commission specifically voted 7-0 against the item that the BOS sent down.
    That kind of deceptive omission is one reason citizens distrust and dislike the Department.  How sad to see such conduct mar Susan Buchan's last week as Department head.  The new interim head, Benny Young, has a chance to get the Department back on the straight and narrow.  Requiring the publication of accurate notice would be one good way to let Planning Department employees realize that a new sheriff is in town, so to speak.
    Something has got to wake up Planning Department employees to reality.  Young may well have what it takes.  He comes from a field where you can't fake performance.  He's been running the County's Highway & Floodplain Department ("H&F").  If H&F's work is bad, everybody sees it, right away; H&F workers either do an actual job, or they're gone.  The Planning Department is different:  it enforces paper; its performance isn't tested by reality; there's no objective standard for performance, except by counting pieces of paper.  The result is predictable:  Planning Department employees don't have to do anything useful, they can fake competence by pushing papers.  A real-world oriented boss may be a real shock. About time. Let's hope.
    The Department's liaison for OBOO is Rick Corley at
        rhcorley@cochise.az.gov
An analysis of the proposed changes to OBOO, and citizen comments about OBOO and the proposed changes, are online at
        http://littlebigdog.net/OBOO.htm
More comments are welcome at
        mpj@vtc.net
Please put "OBOO" in the subject line. Thanks.

>>
The County Supervisors will have a work session
about the future of the Planning Department
The Cochise County Board Of Supervisors voted on December 1, to set a work session about the future of the Planning Department.  The vote was 2-0; Searle was absent from the meeting.  The date of the work session is not yet known.

 CCIPRA thinks the County should dump the entire rural building code.  Dumping it will:
    -- save money -- between $500,000 and $1,000,000 per year
    -- discourage accounting games
    -- restore credibility to the BOS
    -- reduce dislike of county government (dislike which is fully justified)
For a fuller writeup, see
    http://littlebigdog.net/DumpTheBuildingCode.htm
But that's just CCIPRA's opinion.  Your opinion may differ.  Whatever your opinion is, now's the time to tell the Supervisors.

There were hopes that the work session would allow live public input, so people could tell the BOS out loud what they think of the Planning Department, but that won't be happening.  On Jan 22, BOS Chairman English emailed:
    "If you or your colleagues have information you wish for the board to consider in the P/Z work session, please put your concerns/ideas in writing and give them to a supervisor before the meeting day. This work session will not be the format of a public hearing.
    "These ideas can be distributed ahead of time to the board for consideration....
    "You have the right to hear our work sessions but not the right to be heard at a work session.
    "I am offering to give written ideas to the board if anyone submits them to me."
English's restriction of live input is within her powers, and her offer to pass on written ideas that citizens send to her is welcome.  Still, her refusal to let the public speak may must disappoint citizens who wish to speak in person.

Anyway, whatever direction you think the Department should go, it can't hurt to tell not just the Supervisors, in particular Ann English, but also the County Administrator, and the head of the Planning Department, too.  Here are their email addresses:
    County Supervisor
        Call, for District 1:  pcall@cochise.az.gov
        English, for District 2:  aenglish@cochise.az.gov
        Searle, for District 3:  rsearle@cochise.az.gov
    County Administrator Mike Ortega:  mortega@cochise.az.gov
    Planning Department head Benny Young:  byoung@cochise.az.gov
If you aren't sure who your supervisor is, here are links to maps of their districts:
For Call's District 1,
    http://cochise.az.gov/cochise_board_supervisors.aspx?id=922&ekmensel=c580fa7b_154_330_922_1
For English's District 2,
    http://cochise.az.gov/cochise_board_supervisors.aspx?id=926&ekmensel=c580fa7b_154_330_926_2
For Searle's District 3,
    http://cochise.az.gov/cochise_board_supervisors.aspx?id=930&ekmensel=c580fa7b_154_330_930_3


>>
P&Z COMMISSION VOTES TO HAVE WORK SESSION
ON PROPOSED HAZARD ABATEMENT ORDINANCE
At the Planning & Zoning Commission meeting on Wednesday, December 9, three citizens raised several solid, serious, specific questions about the Planning Department's proposed changes to the Hazard Abatement Ordinance.  Those questions, and other concerns some Commissioners had, combined and were weighty enough that the Commission vote, 7-0 (2 absent), to table the proposed changes for up to 90 days, and to set a work session about the Ordinance.  The circumstances of setting the work session make it appear that citizens might be allowed to participate.  Preparations for that are being made, and will be posted here soon.  Meanwhile, a detailed discussion is at
http://littlebigdog.net/HazOrdDebate.htm


As always, telling your thoughts to the P&Z Commissioners is a good thing to do.
* * * * *

RECENT EVENTS

For more reports on some past meetings & results, see
    http://littlebigdog.net/pastmeetings.htm



PARTICIPATING IN COCHISE COUNTY PUBLIC LIFE

A link to Arizona statutes about counties in general:
    http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=11

A link to Cochise County government in general:
    http://cochise.az.gov/

A link to the Board Of Supervisors (BOS) general page:
    http://cochise.az.gov/cochise_board_supervisors.aspx?id=224

Contact information for the BOS
    physical address:  Bldg. G, 1415 Melody Lane, Bisbee AZ 85603
    phone:  432 9200
    email addresses:
        Pat Call (Dist. 1) - pcall@cochise.az.gov
        Ann English (Dist. 2; Chair) - aenglish@cochise.az.gov
        Richard Searle (Dist. 3) - rsearle@cochise.az.gov

Unfortunately, the BOS online "Calendar" at
    http://www.co.cochise.az.us/ccwebsite/Calendar.asp
can't be trusted.  Here's a screenshot of how it looked on Friday morning. October 9
    http://littlebigdog.net/CalendarSeptemberDeceptive.jpg
showing its failure to list a very important meeting that day, to discuss hiring the next Planning Department Director.

The County page at
    http://www.co.cochise.az.us/ccwebsite/PublicNotice.asp
did list the meeting, so the lesson is, don't believe the labels, just check both sites.  The County does double the work on calendars, citizens do double the work on calendars -- why is this necessary?

Most BOS time, by far, is spent on Planning issues.  Most people just refer to "Planning & Zoning," or "P&Z," or some days "Fines&Fees."

There's a P&Z Department, which is administrative, and a P&Z Commission, whose job it is to advise the BOS.

A link to the Department main page:
    http://cochise.az.gov/cochise_planning_zoning.aspx?id=302

A link to agendas for a P&Z Commission meeting:
    http://www.co.cochise.az.us/ccwebsite/PNZCalendar.asp

Contact info for the P&Z Commission
    physical address:  Bldg. E, 1415 Melody Lane, Bisbee AZ 85603
    phone:  432 9240
    email adddresses:
        the Commission itself, pnz@cochise.az.gov
            Commissioners - COUNTY & private addresses if available
        Lee Basnar (Chair) - dist1b@cochise.az.gov - basnar@cox.net
        Gary Brauchla - not posted yet on county website, but MIGHT be dist3b@cochise.az.gov
        Duane Brofer - dist1c@cochise.az.gov - brabec@cox.net
        Pat Edie - dist2c@cochise.az.gov - p_edie_99@yahoo.com
        Rusty Harguess - dist3c@cochise.az.gov -  jtauto@vtc.net
        Jim Martzke - dist3a@cochise.az.gov
        Cruz Silva - dist2b@cochise.az.gov - cruz@cox.net
        John Wendle - dist1a@cochise.az.gov - jdelectronics@qwestoffice.net

Much of the work of P&Z, both the Department and the Commission, is about variances from zoning requirements.  Arizona's Commerce Department puts out a "Planning & Zoning Handbook," whose Chapter 8 concerns zoning.  See
    http://www.commerce.state.az.us/doclib/smartgrowth/handbook/p&zchapter8.pdf

"Purposes And Objectives Of Zoning" is the beginning of Chapter 8.  It includes:
    "... Overall, zoning seeks to preserve the planned character of a neighborhood by excluding uses and structures inappropriate to the area and eliminating non-conforming uses....
    "Zoning should not be used to
        "Provide economic opportunity or advantage to one parcel of property without extending that opportunity to all property similarly situated
        "Artificially increase the value of land ...."

Variances in particular are discussed in section 4 of chapter 8, "Legal Uses."  Here's that section, every word of it:
    "In Arizona, variances from the terms of the zoning ordinance are heard and granted by a board of adjustment.  Variances are to be granted only if special circumstances exist relative to the property's size, shape, topography, location or if the strict application of the zoning ordinance would deprive the property owner of privileges enjoyed by other property of the same classification in the same zoning district.
    "Statutes require that any variance granted is subject to such conditions as will ensure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located.  Variances may be granted when the property owner demonstrates that the application of the zoning ordinance to the property will create a special property hardship.  Both Arizona case law (Nicola v. Board of Adjustment, 101 P.2d 199 [1940]), and the present statute, A.R.S. [Section] 9-462.06(H)(1), prohibit the granting of "use variances" because they are, in effect, rezonings.  (See Chapter 5 for a discussion on the role and responsibility of the board of adjustment).
    "The book, Arizona Land Use Law, concludes that the statutory and case law in Arizona have established these standards:
        "1, A variance may be granted only where there are special circumstances applicable to the property.
        "2, Any hardship that would justify the granting of a variance must relate to the use of the land as opposed to the owner.  A personal hardship does not justify a variance.
        "3, A hardship which [h]as been ... intentionally created does not justify a variance.
        "4, Need for an 'adequate financial return' is not a legitimate basis for a variance.
    "For cities and towns, these standards are either in the statutes or have been established by judicial interpretations.  The county enabling laws are not as detailed and there is little or no case law in Arizona to amplify them.  But, the four standards listed above have been solidly established across the country and it is likely that the actions of county boards of adjustment would be subject to them if taken to court.  Requests for variances that do not meet all these standards should be denied."

This writer has been to many County meetings about variances, but has never heard those standards considered in the discussion.

>>>

A link to a page with legal notices from different County departments, including items for meetings weeks away:
    http://www.co.cochise.az.us/ccwebsite/LegalNotices.asp

Ways to avoid the spirit of the Open Meeting Law:  publish notice in a place that a reasonable person shouldn't have to look.

A link about requesting documents from the County, with a form for making document requests:
    http://littlebigdog.net/DocsFromCounty.htm

A link about speaking at a Call To the Public:
    http://littlebigdog.net/calltopublic.htm
    
>>
Public inspection of county documents just became easier
Citizens now are guaranteed access to public electronic records,
such as email and files on computers,
including the "metadata" showing when the document was edited, accessed, etc.

A recent Arizona Supreme Court case guarantees citizens access to "metadata" in electronic documents, and suggests that the easiest way for counties to provide this information is to provide a requestor with a copy of the record in its native format.  The case is Lake v. Phoenix, and the full opinion is online at
    http://littlebigdog.net/MetadataRecordsRequest.pdf

The metadata in an electronic document is part of the document; it does not stand on its own; it is as much a part of the document as the words on the page.  So when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law.

Here's a fuller discussion about getting public records:
    http://littlebigdog.net/DocsFromCounty.htm

The lesson for citizens' public records requests is clear:  when you request electronic documents, add a specification that you also are requesting all metadata about the documents.  Here's a form for a public records request incorporating that lesson:
    http://littlebigdog.net/DocRQ3.txt
This site's stating the caselaw about metadata seems to be one of the things that steams appointed deputy county attorney Britt Hanson cocktail onions.  So look for more cases to be cited here.

ACIPRA, the Apache County counterpart of CCIPRA, now has a website at
    http://acipra.wordpress.com/
It certainly is a lot better looking than this site!  George Walsh, its proprietor, is a fireball, and has provided much useful information to CCIPRA.  Both CCIPRA and ACIPRA are more effective because the other exists.
* * * * *
COUNTY GOVERNMENT'S WORST RUNNING SORES
The county can't seem to get in step with the Open Meeting Law (OML)

The gist of the OML is simple:  public meetings should be public.

Strict compliance with the OML is required, and any ambiguity is to be interpreted in favor of openness.

If the OML is violated at a meeting, all votes at the meeting are null and void (although our state attorney general has rewritten this law, in a bad opinion).  The written statutes are more detailed, of course.  Here's a website about them:
    http://littlebigdog.net/OML.htm

The County has a record of violating the OML; it's much more comfortable for an "old boys net" to run the county out of public view.  

Sometimes the violations are technical, because the County has a hard time keeping up with state law.

For instance, the County's "Public Notice and Current Agenda" page listed this item for October 9, 2009:  "12:00 PM Lunch and discussion with Col Tim Faulkner, Garrison Commander, Fort Huachuca in the BOS Executive Conference Room."  At least two Supes said they would attend to discuss important matters for the County.  Two is a quorum, and the OML requires that when there's a public meeting of a quorum, notice "shall include an agenda of the matters to be discussed ... or information on how the public may obtain a copy of such an agenda ... at least twenty-four hours before the meeting," and "Agendas ... shall list the specific matters to be discussed, considered or decided at the meeting."  That requirement was brought to the attention of the County before the meeting, but there was no response.

Another example:  the OML was amended, in July 2009, to require at least 24 hours notice of a meeting (and this notice is to include the agenda), but the 24 hours "excludes holidays prescribed in [ARS 1-]301."  Columbus Day is such a holiday, so the 24 hours couldn't include any part of Monday.  Regardless, the County posted notice on Monday, October 12, of a meeting on Tuesday.  An inquiry was emailed to the County, but there was no answer, and the meeting proceeded as if there were no problem with the OML.

For more examples, see
    http://littlebigdog.net/countyhorrors.htm

Luckily, citizens often tell the state Ombudsman when there's an apparent violation of the OML; and the Ombudsman recently found a violation by the BOS.  Here's a letter dated September 9, 2009, to the Clerk of the BOS, copied to Deputy County Attorney Britt Hanson, from the state Ombudsman's office:
    "We have concluded our investigation into Mr. Mike Jackson's complaint filed with our office against the Cochise County Board of Supervisors (Board).  Mr. Jackson alleged that the Board's July 28, 2009 agenda lacked the specificity required under [ARS] 38-431.02(H).  We agree.  
    "The open meeting law requires at least 24 hours advance notice of all meetings to the public body and the general public.  In addition to the notice of the time, date, and place of the meeting, [ARS] 38-431.02(H) requires public bodies to provide an agenda of the specific matters to be discussed, considered or decided at the meeting.  Although section 38-431.02(I) requires only a general description of the matters to be considered in executive session, it still must adequately describe the matters to be discussed and considered without defeating the purpose of the executive session.  Section 38-431.09 expressly states that agendas shall 'contain such information as is reasonably necessary to inform the public of matters to be discussed or decided' and provides that 'any person or entity charged with the interpretation of this article shall construe any provision of this article in favor of open and public meetings.'  In other words, all doubt should be resolved in favor of greater disclosure of information.
    "In this case, agenda item #1 provided, 'DISCUSS AND CONSULT WITH DESIGNATED REPRESENTATIVES OF THE PUBLIC BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS REPRESENTATIVES REGARDING NEGOTIATIONS FOR THE PURCHASE, SALE OR LEASE OF REAL PROPERTY IN THE TOWN OF HUACHUCA CITY.'  The agenda also indicated that pursuant to [ARS] 38-431.03(A)(7), the board may vote to discuss this matter and consult with its designated representative in executive session.  Agenda item 2 indicates that the Board may take action on this agenda item upon its return to public session.   
    "The July 28, 2009 meeting minutes reflect that before voting to go into executive session, the Board asked the Solid Waste Department Director to provide information on the current situation regarding the Huachuca City Recycling Center.  He and others presented information regarding a recently conducted Recycling Feasibility Study, the results of that study, and information related to the current status of financial offers the county made on the recycling center.  The Board then voted to go into executive session.  Upon the Board's return to public session, the members voted to amend the contract offer with Huachaca City to agree to a lease payment of $31,500 per year, exclusion of any profit sharing, and repayment of 100% of the County's investment in building and equipment renovations should Huachuca City terminate the lease.  
    "Determining whether an agenda item provides adequate specificity under [ARS] 38-431.02(H) is a somewhat subjective determination.  That said, we agree with Complainant that merely stating the Board will discuss negotiations for the purchase, sale, or lease of real property in the Town of Huachuca City does not reasonably inform the public that it intended to discuss the county's recycling program or that the real property under negotiation was a recycling facility.
    "Therefore, we find that agenda item #1 lacked adequate specificity and failed to reasonably inform the public of what was to be discussed in violation of [ARS] 38-431.02(H).  Consequently, the Board's subsequent decision to amend the contract offer with Huachuca City is null and void unless ratified in accordance with [ARS] 38-431.05(B).    
    "In the future, a similar agenda item should elaborate and better inform the public what the board will discuss and consider.  For instance, the public agenda item might inform the public that the Board will discuss, consider, and possibly take action on Cochise County's recycling program and negotiations for the purchase, sale, or lease of the Huachuca City Recycling Center.
    "The notice and agenda should also inform the public that pursuant to [ARS] 38-431.03(A)(7), the Board may vote to go into executive session for discussion or consultation with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sale or lease of the Huachuca City Recycling Center.  Disclosure of the recycling center does not defeat the purpose of the executive session and would reasonably inform the public of the matters to be discussed and considered.
    "As a result of the findings set forth above, we recommend that future agendas provide more specific information of the items to be discussed and considered.  We also recommend ratifying the legal action taken.  In this case, however, it is our understanding that subsequent events have rendered the amended contract moot.  Therefore, the Board must determine whether ratification is necessary to preserve the offer approved on July 28, 2009.
    "Thank you for your cooperation in this matter."

Oddly, it wasn't long after that caution that Hanson defended a vague agenda item.  Here's an article about the Douglas School Board's obvious violations of the Open Meeting Law:
   http://www.kgun9.com/Global/story.asp?S=11753501

Here are the parts that most concern Hanson:
    "On Tuesday [December] 22nd, the board met to get the Pettit report ....  the board voted to keep the report confidential -- an act that flies directly in the face of Arizona public records law.
    "Britt Hansen ... called and ... said, 'If [the report is] done and ready for the public, there's no reason that you can't have it.'  Hansen said he was ... on vacation (you have to give him credit for taking time out to deal with this), but ... concluded ... by saying he would 'get the information to you as soon as I can.'
    "The agreed-on Tuesday deadline came and went -- nothing.  [A KGUN attorney] called and left messages.  That resulted in a very chilly e-mail response from Hansen ...:  'Because the Board had not had a chance to read the extremely lengthy report (I believe it is in excess of 300 pages) -- it was presented to them at the meeting for the first time -- and because the report was not entirely complete (some exhibits were not attached), the Board voted not to release the report to the public until it was complete with exhibits and members had a chance to actually read it.  If you had returned my phone call, you would have learned this.'
    "Ouch....  Hansen had not asked for a return call ....
    "[R]egardless of whether the documents may or may not be released at some future date, the board's actions are almost certainly illegal....
    "There's no allowance of a review period so that the politicians can determine, before releasing them, whether the documents might be embarrassing, offensive, or politically damaging.  The public has a right to see them.  Now.  Not tomorrow, not next week, not two weeks from now.  Today.  This very second.  Whether the board likes it or doesn't like it is not a factor; it simply has no authority to countermand state law....
    "Under state open meeting law, the board can only take action on specific proposals publicly posted on the agenda 24 hours in advance....  there was only a vaguely worded agenda item allowing the board to 'take action regarding' the report....  'Any reasonable person ... would conclude that the board intended to discuss the report at the meeting, not vote to hide it from public inspection.' ...  any attempt to interpret that agenda item as a justification for a concealment vote 'violates the letter and the spirit of the open meetings law.'"

>>

The Department continues to waste public time and money in the persecution of a grandfathered property use.  The owner has submitted four eye-witness statements verifying the grandfathering, and the Department has no contrary evidence, yet won't dismiss the case. 

For the whole debacle up to December 22, see
   http://littlebigdog.net/DonnaMercerCase.htm
which is updated from time to time -- and will be updated soon.

The latest development came on January 7, when Mercer and the Department were required (by the County Hearing Officer Rules Of Procedure) to exchange the written evidence they may offer at the hearing.  Mercer delivered her items, but the Department produced nothing for Mercer.  Apparently the Department does not intend to introduce any written evidence at the hearing on January 14.  If the Department isn't even going to try to win, the Department should just dismiss the case and leave Mercer alone.

Besides, everyone familiar with the situation knows that Mercer is right:  the Department may not like the fact that a junkyard has been on the property for 40 years or so, but that's the fact.  Affidavits from four eyewitnesses are online at
   http://littlebigdog.net/MercerAffidavitDuff.jpg
   http://littlebigdog.net/MercerAffidavitMiller.jpg
   http://littlebigdog.net/MercerAffidavitSherman.jpg
   http://littlebigdog.net/MercerAffidavitThompson.jpg
The junkyard was spread all over the property for years before 1975, when the county zoning codes was passed.

If the Department doesn't intend to even try to fight that evidence, then what is the Department after?  Apparently the Department wants Mercer to fill out some extra forms.  Too bad the Department filed charges without just asking Mercer for what it now says it wants from her.

Here's a thought:  let the Department dismiss the charges, and ask Mercer politely, including the word "Please," to fill out the forms it wants to have.  She probably would.  Americans will do a lot of things for you when you ask them, but they'll stand up and fight back if you treat them like dirt.

The Department has already admitted it acted wrongly toward Mercer; the Department admitted that when, after public pressure, it had a judgment against Mercer set aside to avoid "manifest injustice" to her.  Since the Department has admitted being wrong once, perhaps it can admit being wrong twice, and also toss in the magic word "Please."

>>
Statutory gobbledygook

In the Arizona Revised Statutes, Title 11 is "Counties;" in Title 11, Chapter 6 is "County Planning and Zoning;" in Chapter 6, Article 1 is "Administration and Enforcement;" and in Article 1, Section 11-811 is "Compliance with court decisions."

ARS 11-811 says "A county or an agency . . . of a county shall comply with the United States Supreme Court cases of Dolan v. City of Tigard, 512 U.S. 374 (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, _____U.S._____(2002) and Arizona and federal appellate court decisions that are binding on Arizona counties interpreting or applying those cases."

Huh?

Those six cases -- just call them Dolan, Nollan, Lucas, First English, Palazzolo, & Tahoe -- set limits on the conditions that the Planning & Zoning Commission can require in order to grant a zoning permit.

The cases are discussed at
    http://littlebigdog.net/StatutoryGobbledygook.htm