I. Detailed comparisons and discussion of the Cochise County Hazard
Abatement Ordinance enacted in 1987, and the changes proposed in March,
July, November, and December 2009
The goal of this digest is to make it easier for citizens to give input
to the County. Citizen input matters. Many results from citizen input
are apparent in the writeup below. The County may never acknowledge
citizen input, but citizens know that their input makes the County better.
My previous writeups kept individual ordinance sections in the same
order as they were passed in 1987, mainly as a reminder that the test of
a proposed ordinance is not "Would this be a good start from scratch?",
but "Is this enough better than what we already have to be worth making
the change?" With the November changes, I thought, for the first time,
that the game might be worth the candle; so this writeup has switched
over to the order of the November version.
The December changes have also adopted a couple of ideas from earlier
versions of this writeup. That's good -- but there's still no actual
dialogue going on. No one from the Department -- or the County, for
that matter -- has discussed this writeup with this writer. An actual
dialogue with members of the public would probably result in more
changes to the draft proposal, or in the public understanding the
Department's disinclination to make certain changes, but such a dialogue
can't take place if Department is merely a "black hole" for citizen input.
After the comparisons in Part II below, Part III mentions a few sections
that have disappeared but should perhaps be reinstated.
If you find any errors below, please email me to correct them at
mpj@vtc.net
Here are a few -- by no means all -- suggestions for improving the draft
ordinance, even after the Department's December changes:
-- don't charge landowners for cleaning up trash on the road near
their property. SEE 404(b).
-- when a Planning Department employee issues an order, don't let
the same employee decide if the order should be stayed upon a citizen's
appeal. SEE 504.
-- don't let the Board Of Supervisors hand off citizen appeals to an
appointed "hearing examiner." SEE 505.
-- replace a catchall paragraph about citizens' rights with the
detailed description in the existing ordinance enacted in 1987. SEE 604.
-- don't confuse a trial panel with an appellate board; their duties
are very different, and don't blend well. SEE 604(b)(3).
-- make it absolutely clear that no Supervisor who does not attend a
hearing, and see and hear the witnesses, shall be allowed to participate
in judging the case after the lapse occurs. SEE 605(a).
-- more carefully protect due process at hearings in general. SEE
605(b) and 605(c).
-- restore the requirement of accurate cost accounting, and the
right of any affected person to protest a Department decision. SEE
Section III below.
Now, on to the detailed comparisons.
II. Section-by-section comparisons
Section 101 names the ordinance in legal "boilerplate" which need not be
examined.
Section 102(a)
1987: It is the purpose of this ordinance to provide a ... method
... whereby any rubbish, trash, weeds, filth, debris or damaged and
dilapidated buildings which constitute a hazard to public health and
safety may be compelled to be removed ....
Mar 09: ... rubbish, trash, filth, debris or damaged and
dilapidated buildings ....
CHANGE: removes "weeds" from the list. In fact, the March
draft removes all reference to weeds.
Jul 09: rubbish, trash, weeds (as narrowly defined under this
ordinance) ....
CHANGE: replaces "weeds" on the list, but "as narrowly defined
under this ordinance." This narrow definition is in section 201: "Any
vegetation that impedes emergency vehicle access, constitutes a fire
hazard, or interferes with the line of sight of vehicles on roadways."
Nov 09: SAME
Dec 09: SAME
Section 102(b)
1987: The provisions of this ordinance shall apply to all
hazardous conditions ....
Mar 2009: Same, plus "It is enacted pursuant to authority granted
by A.R.S. 11-268."
CHANGE: mentions a statute as authority for enacting the ordinance
Jul 09: To the March draft, adds: "Commentaries contained herein
are intended as a guide to interpreting and carrying out the text of
this ordinance."
CHANGE: Commentaries, which were removed from the March draft,
returned in the July draft.
COMMENT: The commentaries put significant limits on applying
the ordinance. Their return is welcome.
Nov 09: SAME
Dec 09: SAME
Section 201
1987, numbered as 301: For the purpose of this ordinance, certain
terms, phrases, words and their derivatives shall be construed as
specified in this chapter. Where terms are not defined, they shall have
their ordinary accepted meanings within the context with which they are
used. Webster's Third New International Dictionary of the English
Language Unabridged, copyright 1961, shall be construed as providing
ordinary accepted meanings. Words used in the singular include the
plural and the plural the singular. Words used in the masculine gender
include the feminine and the feminine the masculine.
Mar 09: SAME
Jul 09, renumbered as 201: SAME IN SUBSTANCE
Nov 09: SAME
Dec 09: SAME
Mar 09: "Abate": To end a nuisance, emergency, or nonconformance
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Abatement": Any action taken to reduce, relieve, or
suppress another continuing action. A legal action taken to suppress
the continuation of an offensive land use.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
1987: "Board of Appeals": The Board of Supervisors shall
constitute the Board of Appeals for all appeals pursuant to this ordinance.
Mar 09: SAME
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Contiguous Sidewalks, Streets and Alleys": any sidewalk,
street, or alley, public or private, adjacent to the edge or boundary,
or touching on the edge or boundary, of any real property.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "County": The unincorporated areas of Cochise County.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
1987: "Debris": The definition of debris in addition to its
ordinary accepted meaning shall include accumulations of combustible or
flammable materials which are determined by the hazard abatement officer
to constitute a hazard to public health or safety.
Mar 09: Accumulations of combustible or flammable materials which
are determined by the Hazard Abatement Officer to constitute a hazard to
public health or safety.
CHANGE: The opening reference to "ordinary accepted
meaning" is deleted.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
COMMENT: Here, and wherever action is allowed based solely on a
determination by the Hazard Abatement Officer, the language should be
changed to indicate that the HAO's "determination" cannot determine any
issue in a lawsuit or appeal.
Mar 09: "Dilapidated Building": Any building in such disrepair, or
damaged to such an extent, that its strength or stability is
substantially less than a new building, or that is likely to burn or
collapse, and the condition of which endangers the life, health safety,
or property of the public as determined by the Hazard Abatement Officer.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
COMMENTS:
As to "as determined by" the HAO, same comment as in the
definition of "debris."
Many old pole barns, sheds, etc., are substantially less
strong or stable than a new structure, but are still perfectly useful
and safe. To except such buildings, the definition should simply read
"Any building that is likely to burn or collapse, and the condition of
which endangers the life, health safety, or property of the public ...."
Mar 09: "Grounds": Any private or public land, vacant or improved.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Hazard Abatement Officer": The Planning Director or
his/her designated representative.
Jul 09: SAME
Nov 09: "his/her" is now simply "his"
Dec 09: SAME
COMMENT: good cleanup
Mar 09: "Lessee": A person who has the right to possess real
property pursuant to a lease, rental agreement, or similar instrument.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Lots": Any plot or quantity of land, vacant or improved,
private or public, as surveyed, platted or apportioned for sale or any
other purpose.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Occupant": A person who has the actual use, possession,
or control of real property. This term does not include any corporation
or association operating or maintaining right-of-way for and on behalf
of the United States government, either under contract or federal law.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
COMMENT: on the penult line, "for and on behalf of the United
States" probably should be "for or on behalf of ...."
Mar 09: "Owner": A person who is a record owner of real property
as shown in the public records in the office of the Cochise County
Recorder, and includes a person holding equitable title under a recorded
installments sales contract, contract for deed or similar instrument.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
COMMENT: "and includes" should be "including," as a matter of
English
Mar 09: "Person": An individual, partnership, corporation,
association, trust, state, municipality, political subdivision, or any
other entity that is legally capable of owning, leasing, or otherwise
possessing real property.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Mar 09: "Public Nuisance": A dilapidated building or an
accumulation of rubbish, trash, filth, or debris that constitutes a
hazard to the public health and safety as determined by the Hazard
Abatement Officer.
Jul 09: "weeds" is inserted, i.e. "trash, weeds, filth"
Nov 09: SAME
Dec 09: SAME
COMMENT: Should read "as determined by the Hazard Abatement
Officer or a hearing if one is requested."
Mar 09: "Real Property": Buildings, grounds, or lots, as well as
contiguous sidewalks, streets, and alleys, located in the county.
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Jul 09: "Weeds": Any vegetation that impedes emergency vehicle
access, constitutes a fire hazard, or interferes with the line of sight
of vehicles on roadways.
Nov 09: SAME
Dec 09: SAME
COMMENT: consistent with section 102(a), see above
Mar 09: "Wildcat dumping": The unauthorized placement, or
transportation for placement, by any person, firm or corporation, of any
rubbish, trash, filth or debris upon any private or public property
located in the unincorporated areas of the County not owned or under the
control of that person, firm or corporation.
Jul 09: "weeds" is inserted, i.e. "trash, weeds, filth".
Nov 09: SAME
Dec 09: SAME
COMMENT: You just can't stop that real estate clique from
calling other people wildcatters. Maybe people should start calling
developers "carpetbaggers."
Section 301(a)
1987, numbered as 201(a): The position of hazard abatement officer
is hereby created, said officer being herein authorized to enforce the
provisions of this ordinance.
Mar 09: The position of Hazard Abatement Officer is hereby created,
said officer being herein authorized to enforce the provisions of this
ordinance.
CHANGE: March 2009 capitalizes "Hazard Abatement Officer."
This change occurs throughout the 2009 proposal, and will not be further
noted.
Jul 09, renumbered as 301(a): SAME
Nov 09: SAME
Dec 09: SAME
Section 301(b)
1987, numbered as 201(b): The health officer, representative of
fire district if one is established, and the hazard abatement officer
and their authorized representatives are hereby authorized to make such
inspections as may be required to enforce the provisions of this
ordinance. The Hazard Abatement Officer or his authorized
representative may take such actions as may be required to carry out the
provisions of this Ordinance.
Mar 09: SAME
Jul 09, renumbered as 301(b): A County environmental health
inspector, representative of a fire distict if one is established, or
the Hazard Abatement Officer or any of their authorized representatives
are hereby authorized to make such inspections as may be required to
enforce the provisions of this ordinance. The Hazard Abatement Officer
or his authorized representative may take such actions as may be
required to carry out the provisions of this Ordinance.
CHANGE: housekeeping
Nov 09: SAME
Dec 09: SAME
Section 301(c), first paragraph
COMMENT, A BIG CHANGE, VERY IMPORTANT: Through the November 2009 draft,
this paragraph allowed a Health Abatement Officer to enter premises
whenever he had "reasonable cause" to believe that an inspection was
necessary. The Department's statement that "reasonable cause" was
sufficient to enter property amounted to ignoring the Fourth Amendment's
requirement of "probable cause" for getting a search warrant. It was a
mystery why the Department kept insisting on saying "reasonable cause"
instead of "probable cause." The Department has finally relented, and
this paragraph now states: "Whenever ... the Hazard Abatement Officer
... has probable cause ...." This is a major change. It is a necessary
change. It is a good change.
Section 301(c), first paragraph, continued
1987, numbered as 201(c): Whenever necessary ... the hazard
abatement officer or his authorized representative may enter such
buildings .... If such entry is refused, the hazard abatement officer
or his authorized representative shall have recourse to every remedy
provided by law to secure entry.
Mar 09: like above, but added "including recourse to an
administrative search warrant pursuant to A.R.S. 13-3912(5)."
Jul 09, renumbered as 301(c): SAME
Nov 09: There are several technical reworkings of the last half of
this paragraph. The paragraph now closes
he shall first present proper credentials and request
entry. If such entry is refused, the Hazard Abatement
Officer or his authorized representative shall seek and
obtain an administrative search and inspection warrant
pursuant to [ARS] 13-3912(5) prior to entry of those
premises. If such building or premises be unoccupied,
he shall first make a reasonable effort to locate the
owner or other persons having charge or control of the
building or premises and request entry and, if such
entry is refused or if the owner or other persons
having charge or control of the building or premises
cannot be located, seek and obtain an administrative
search and inspection warrant pursuant to [ARS] 13-
3912(5) prior to entry of those premises.
COMMENT: The rewrite lost its way in redundancy. Dropping the
middle sentence might improve it, thus:
he shall first present proper credentials and request
entry. If such building or premises be unoccupied, he
shall first make a reasonable effort to locate the
owner or other persons having charge or control of the
building or premises and request entry and, if such
entry is refused or if the owner or other persons
having charge or control of the building or premises
cannot be located, seek and obtain an administrative
search and inspection warrant pursuant to [ARS] 13-
3912(5) prior to entry of those premises.
Dec 09: the Comment above has been substantially adopted, to the
point where the section has been shortened a bit too much. This part of
301(c) now reads:
he shall first present proper credentials and request
entry; and if such building or premises be unoccupied,
he shall first make a reasonable effort to locate the
owner or other persons having charge or control of the
building or premises and request entry. If such entry
is refused, the Hazard Abatement Officer or his
authorized representative shall have recourse to every
remedy provided by law to secure entry.
COMMENTS:
This paragraph still refers to buildings being "unsafe,
dangerous or hazardous." This is like the "Wyatt Earp" theme song
calling Wyatt "brave, courageous and bold." Can't we write our
ordinances less redundantly?
This paragraph also has dropped the overconfident requirement
for the HAO to both "seek and obtain" a warrant.
Section 301(c), second paragraph
1987, numbered as 201(c): When the hazard abatement officer or his
authorized representative shall have first obtained a proper inspection
warrant or remedy .....
Mar 09: When the Hazard Abatement Officer or his authorized
representative shall have first obtained a proper inspection warrant or
other remedy ....
CHANGE: 1987 refers to a "warrant or remedy" to enter and
inspect property; March 2009 says "warrant or other remedy."
Jul 09, renumbered as 301(c): SAME
Nov 09: The reference to "proper inspection warrant" is now changed
to "proper search and inspection warrant."
COMMENT: The change seems innocuous.
Section 301(c), third paragraph
1987, numbered as 201(c): "Authorized representative" shall include
the officers named in Section 201(b) and their authorized inspection
personnel."
Mar 09: SAME
Jul 09, renumbered as 301(c): Like Mar, but internal section
reference changed to 301(b)
Nov 09: Now adds at end "and any law enforcement officer(s)
accompanying them."
COMMENT: Not a good idea. An HAO may want to inspect for a
safety problem, but why should such a search require a sheriff's
deputy? This provision opens up the possibility of an HAO search being
used as a pretext for a police search.
Commentary after Section 301(c)
1987: In order for the hazard abatement officer (or his
representative) to make an inspection, he must have 'reasonable cause to
believe' that there exists rubbish, trash, weeds, filth, or debris in or
on a building or premises, or a dilapidated and dangerous building,
which creates a condition which is unsafe, dangerous, or hazardous.
Generally, the inspection will result from a complaint which he has
received, or by observation of a condition that appears so dangerous
that following up with an inspection is reasonable. It is not intended
that the officer travel all over the county searching for hazardous
conditions. Also, if the officer is not given permission by the owner
to inspect, the officer must get a court warrant to inspect the
property, and this requires him to make a showing of reasonable cause to
the court.
Mar 09: GONE
CHANGE: Deletes language intended to limit application of this
ordinance. Note that in legal arguments, the deletion of such language
is often taken as an indication that the ordinance was no longer
intended to be limited.
Jul 09: RESTORED WITH CHANGES: "In order for the Hazard Abatement
Officer (or his representative) to make an inspection, he must have
'reasonable cause to believe' that there exists rubbish, trash, weeds,
filth, or debris in or on a building or premises, or a dilapidated and
dangerous building, which creates a condition which is unsafe,
dangerous, or hazardous. Generally, the inspection will result from a
complaint which he has received, or by observation of a condition that
appears so dangerous that following up with an inspection is
reasonable. It is not intended that the officer traverse the county
searching for hazardous conditions. Also, if the officer is not given
permission by the owner to inspect, the officer must get a court warrant
to inspect the property, and this requires him to make a showing of
reasonable cause to the court."
CHANGE: "it is not intended that the officer travel all over
the county" becomes "that the officer traverse the county." Traverse is
slightly more concise, and does not appear to make any change in
meaning. If a change in meaning is intended, it ought to be explained
openly, not buried in a long paragraph.
COMMENTS:
The last line of the Commentary is incorrect. Obtaining a
warrant does not require "reasonable cause," it requires "probable
cause." Under ARS 13-3913, "No search warrant shall be issued except on
probable cause, supported by affidavit, naming or describing the person
and particularly describing the property to be seized and the place to
be searched." That's PROBABLE cause, not "reasonable" cause, and the
two are very different. It's reasonable to believe that you might win
the lottery; that doesn't make it probable. The Ordinance should
definitely state "probable," not "reasonable," cause. It should reflect
American law, not some Commissar's dream.
With the law so clear, it's a mystery why the Department
persists, draft after draft, in talking about "reasonable cause" to
obtain a warrant.
Dec 09: The Commentary still refers, twice, to a requirement of
"reasonable cause" for obtaining a warrant, although the Constitution
requires "probable cause" and the ordinance itself now says "probable
cause," as noted above at the beginning of the discussion of 301(c).
The Commentary should be rewritten to follow the Constitution and the
ordinance, and state "probable cause." There is no possible objection
to accurately stating the law.
COMMENT: On December 8, the
Department stated that the Commentary would be corrected to say
"probable cause" instead of "reasonable cause." Well done,
even if overdue.
Section 302, "Wildcat Dumping"
1987: No equivalent section
Mar 09: No separate section, but section 402 contained a sentence
allowing people who "have been a victim of wildcat dumping [to] apply
for vouchers to offset the cost of removal."
Nov 09: That language disappeared, but Section 302 popped up: Any
person, firm or corporation that places any rubbish, trash, filth or
debris upon any private or public property located in the unincorporated
areas of the county not owned or under the control of the person, firm
or corporation is guilty of a class 1 misdemeanor and, in addition to
any fine which may be imposed for a violation of any provision of this
section, is liable for all costs which may be assessed pursuant to this
section for the removal of the rubbish, trash, filth or debris.
Dec 09: SAME
Section 303
1987: Precursor of current 303 was 202: "In order to provide for
final interpretation of the provisions of this ordinance and to hear
appeals provided for hereunder, there is hereby established a Board of
Appeals consisting of the Board of Supervisors. The Board shall adopt
reasonable rules and regulations for conducting its business and shall
render all decisions and findings in writing to the appellant, with a
copy to the hazard abatement officer. Appeals to the Board shall be
processed in accordance with the provisions contained in Section 501 of
this ordinance. Copies of all rules or regulations adopted by the Board
shall be delivered to the hazard abatement officer who shall make them
freely accessible to the public."
Mar 09: SAME
Nov 09: SAME in substance, with minor housekeeping changes
Dec 09: SAME as 1987, with minor housekeeping changes
Section 401
1987: When rubbish, trash, weeds, filth or debris, are accumulated
on or in buildings, grounds, lots, contiguous sidewalks, streets or
alleys and the hazard abatement officer determines that the accumulation
or condition constitutes a hazard to public health and safety, or if the
hazard abatement officer determines that a dilapated and dangerous
building constitutes a hazard to public health or safety, the hazard
abatement officer may require the owner, lessee or occupant of
buildings, grounds or lots located in unincorporated areas of the County
to remove such rubbish, trash, weeds, filth, debris or dilapidated and
dangerous building.
Mar 09: When rubbish, trash, filth or debris, are accumulated on or
in buildings, grounds, lots, contiguous sidewalks, streets or alleys and
the Hazard Abatement Officer determines that the accumulation or
condition constitutes a hazard to public health and safety, or if the
Hazard Abatement Officer determines that a dilapated and dangerous
building constitutes a hazard to public health or safety, the Hazard
Abatement Officer may require the owner, lessee or occupant of
buildings, grounds or lots located in unincorporated areas of the County
to remove such rubbish, trash, filth, debris or dilapidated and
dangerous building.
CHANGE: "weeds" removed, capitalization changes
Jul 09: SUBSTANTIALLY SIMILAR, but "weeds" restored
Nov 09: SAME
COMMENTS
"Dilapated" still appears in the November version (line 6
above, end of line 4 in the printed version. Is this misspelling from
1987 immune to being fixed?
Slight variations of the phrase "owner, occupant or lessee"
appear throughout the ordinance. Let's pick one version and stick with
it, so that a chance variation in the phrase won't lead anyone to infer
a variation in meaning.
Dec 09: SAME (shall we ever fix "dilapated"?)
Section 402
1987: The hazard abatement officer shall provide formal written
notice of the alleged violation to the owner, occupant or lessee of the
subject premises not less than thirty (30) days prior to the date set
for compliance. Such notice shall include the estimated cost to the
County to remove, and advise the owner, occupant or lessee that if the
county removes the rubbish, trash, weeds, filth, debris or dilapidated
and dangerous building, said expense shall be assessed to said owner,
occupant or lessee. Said notice shall be either personally served or
mailed to the owner, occupant or lessee at his last known address by
certified mail, 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
know address.
Mar 09: Like 1987, plus "Said notice shall include an advisory that
if the owner, lessor or occupant alleges that they have been a victim of
wildcat dumping, as defined herein, they may apply for vouchers to
offset the cost of removal, subject to availability of funds, together
with instruction on how to apply for such a voucher."
CHANGES:
Adds the possibility of recovering costs from the county if
someone else trashes your property.
Removes "weeds," capitalizes job titles
Jul 09: The Hazard Abatement Officer shall provide formal written
notice of the alleged violation to the owner, occupant and/or lessee of
the subject premises not less than thirty (30) days prior to the date
set for compliance. Such notice shall include the estimated cost to the
County to remove, and advise the owner, occupant or lessee that if the
county removes the rubbish, trash, weeds, filth, debris or dilapidated
and dangerous building, said expense shall be assessed to said owner,
occupant and/or lessee. Said notice shall be either personally served
or mailed to the occupant and/or lessee at his last known address by
certified mail, 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.
CHANGES:
Removes the possibility, added in the March 2009 draft, of
recovering costs from the county if someone else trashes your property.
Reinstates "weeds"
Changes notice, and billing for expenses, from owner,
occupant or lessor to "owner, occupant and/or lessee" -- lessee being
correct. However, to whom is notice required to go, and who will be billed?
Nov 09: SUBSTANTIALLY like July
Section 403
1987: If, after notice, and after the specified date of compliance,
the owner, occupant or lessee fails to remove the rubbish, trash, weeds,
filth, debris or dilapidated and dangerous building, and abate the
conditions which constitute a hazard to public health and safety, the
County may, at the expense of the owner, occupant or lessee, remove or
cause removal of such trash, weeds, filth, debris or dilapidated and
dangerous building. The cost to be charged for such removal will be the
actual cost of removal or abatement, including a five percent (5%)
charge for additional inspection and incidental costs.
Mar 09: "... the County may, at the expense of the owner, occupant
or lessee, remove or cause removal of such trash, filth, debris or
dilapidated and dangerous building; provided, however, that if such
removal or abatement is not undertaken within 180 days after the right
to do so first accrues, a new Notice of Violation shall be served as
provided in Section 402. The cost to be charged for such removal will
be the actual cost of removal or abatement, including a ten percent
(10%) charge for additional inspection and incidental costs, plus any
anticipated associated legal costs."
CHANGES:
removes "weeds"
adds language allowing a new Notice of Violation every 180 days
doubles the charge for "additional inspection and costs"
from 5% to 10%.
adds charge for "anticipated ... legal costs."
Jul 09: "... the County may, at the expense of the owner, occupant
or lessee, remove or cause removal of such trash, weeds, filth, debris
or dilapidated and dangerous building .... The cost to be charged for
such removal will be the actual cost of removal or abatement, and may
include a ten percent (10%) charge for additional inspection and
incidental costs."
CHANGES:
reinstates "weeds"
changes "including a ten percent ... charge for additional
inspection and incidental costs" to "may include a ten percent ...."
removes the charge for anticipated legal costs
COMMENTS:
There should be no extra charge for "additional inspection"
etc. State law allows a county to pass through actual cost, not charge
for hypothetical or unknown costs. Could be rewritten so that the last
clause would be "and may include the actual charge of additional
inspection."
Removing the charge for anticipated legal costs is good.
Nov 09: Like July, but adds at end "Said cost, if imposed against
an owner of said real property, shall, if not paid within 30 days or
timely appealed pursuant to Chapter 5 of this ordinance, constitute an
assessment against the property upon recording thereof with the County
Recorder.
COMMENT: The best version yet, but still, should not allow the
County to charge a landowner 10% actually out of pocket for hypothetical
charges which will probably never actually be incurred. This charge is
pure pickpocketing.
Dec 09: SAME in substance, minor housekeeping changes
COMMENT: The pickpocketing continues.
Section 404
1987: The cost of removal of the rubbish, trash, weeds, filth,
debris or dilapidated and dangerous building from any lot or tract of
land located in the unincorporated areas of the County may be assessed,
as set forth in Chapter 8 of this Ordinance, upon the lot or tract of
land from which the rubbish, trash, weeds, filth, debris or dilapidated
and dangerous buildings are removed. The assessment, from the date of
its recording in the Office of the County Recorder, shall be a lien on
the lot or tract of land, until paid.
Mar 09: The cost to be charged for removal of the rubbish, trash,
filth, debris or dilapidated and dangerous building from any lot or
tract of land and/or contiguous streets and alleys located in the
unincorporated areas of the County may be assessed, as set forth in
Chapter 8 of this Ordinance, upon the lot or tract of land from which
the rubbish, trash, filth, debris or dilapidated and dangerous buildings
are removed. The assessment, from the date of its recording in the
Office of the County Recorder, shall be a lien on the lot or tract of
land, until paid.
CHANGES:
removes "weeds"
adds charges for removal not just from property but also
from "contiguous streets and alleys"
COMMENT: does not allow assessment against property for the
charges of removal from contiguous streets or alleys
Jul 09: REPLACED by 404(a) & (b), discussed directly below:
-- 404(a): When any work or removal is to be done pursuant to this
ordinance, the Hazard Abatement Officer shall issue his order therefore
to the Planning Director and the work shall be accomplished by personnel
of this jurisdiction, by intergovemmental ageement with one or more
other jurisdictions, or by private contract under the direction of said
director. Plans and specifications therefore may be prepared by said
director, or he may employ such architectural and engineering assistance
on a contract basis as he may, deem reasonably necessary. If any part
of the work is to be accomplished by private contract, standard County
contractual procedures shall be followed.
COMMENTS:
404(a) is substantially similar to original 701(a), whose
history is as follows:
1987: When any work or removal is to be done pursuant to this
ordinance, the hazard abatement officer shall issue his order therefore
to the director of public works and the work shall be accomplished by
personnel of this jurisdiction or by private contract under the
direction of said director. Plans and specifications therefore
may be prepared by said director, or his many employ such architectural
and engineering assistance on a contract basis as he may deem
reasonably necessary. If any part of the work is to be
accomplished by private contract, standard public works contractual
procedures shall be followed.
Mar 09: Substantially similar, with corrections of clerical
errors, and replacing "director of public works" by Planning
Director. This change also occurs in Section 801, but will not be
separately noted there.
Nov 09: SUBSTANTIALLY like July
Dec 09: minor capitalization change
-- 404(b): The cost of such work may be made a special assessment
against the property involved as in the manner set forth in Section 703
through 709 of this ordinance, or may be made a personal obligation of
the property's owner, whichever the Board of Appeals shall determine is
appropriate. If made a special assessment, said assessment shall, from
the date of recording in the Office of the County Recorder, be a lien on
the lot or tract of land until paid.
COMMENTS:
A "special assessment ... as in the manner" is meaningless;
what is meant is "assessment ... in the manner."
Draft 404(b) is substantially similar to existing 701(b),
whose history is as follows:
1987: The cost of such work shall be made a special assessment
against the property involved as in the manner set forth in Section 808
through 813 of this ordinance, or may be made a personal obligation of
the property owner, whichever the Board of Supervisors shall determine
is appropriate.
Mar 09: Substantially similar, but changes "shall" (in the first
line) to "may," giving the Supervisors discretion whom to charge.
The discretionary power to decide whether to place a lien on
property, or to lay a personal debt on a citizen, dates back to 1987 but
is suspect. This ordinance should not merely state the power, but
should specifically reference the statute authorizing it.
Nov 09: MUCH LIKE JULY, but with "property's owner" changed to
"property owner, occupant or lessee."
COMMENTS:
It may not be proper to convert an assessment against a
renter into a lien on the property.
In Cochise County, many people dump incredibly obnoxious
trash -- cigarette butts, empty oil containers, used baby diapers --
alongside any convenient and unwatched road. This is not the fault of
the property owner, it is a burden laid on every citizen of the county
for living in such an attractive area. Many citizens already spend a
good deal of their own time and money cleaning up such trash. Absent
sufficient proof that a property is the source of the trash alongside
it, a property owner, occupant, or lessee should not have to pay for
cleaning up trash alongside the property.
Dec 09: SAME
COMMENTS: Same qualms as before: watch out for converting
assessment against renter into lien on property; and don't bill
landowners for trash left by transients.
Section 405
1987: Both the notice of violation and any assessment imposed
pursuant to this chapter may be appealed to the Board of Appeals in the
manner provided in Chapter 5 of this Ordinance.
Mar 09: Both the notice of violation provided under Section 402 of
this Ordinance and the amount of any charge or assessment determined
pursuant to Section 801 of this Ordinance, may be appealed to the Board
of Appeals in the manner provided in Chapter 5 of this Ordinance.
CHANGE: Adds reference to Section 801.
Jul 09: "Both the notice of violation provided under Section 402 of
this Ordinance and/or the amount of any charge or assessment determined
pursuant to Section 403 of this Ordinance, may be appealed to the Board
of Appeals in the manner provided in Chapter 5 of this Ordinance.
CHANGE: housekeeping
Nov 09: SAME
Dec 09: SAME
Section 406
1987 and March 2009: this section defined "occupant," a definition
now in Section 301.
Jul 09: Before the removal of a dilapidated and dangerous building
the Board of Supervisors shall consult with the State Historic
Preservation Office to determine if the building is of historic value.
COMMENT: The July 2009 language is identical to Section 407
from 1987 and March 2009.
Nov 09: SAME
Dec 09: ADDS another sentence: "If said building is found to be of
historic value, the Hazard Abatement Officer shall work with SHPO to
minimize damage or loss of any historic building fabric during abatement.
COMMENT: "fabric"?
Section 407
1987: Before the removal of a dilapidated and dangerous building
the Board of Supervisors shall consult with the State Historic
Preservation Office to determine if the building is of historic value.
COMMENT: Was Section 406 in the July 2009 draft.
Mar 09: SAME
Jul 09: If a county removes a dilapidated and dangerous building
pursuant to this section, the Hazard Abatement Officer shall notify the
County Assessor, and the County Assessor shall remove the structure from
the property assessment rolls.
COMMENT: The July 2009 language is substantially similar to
Section 408 from 1987 and from March 2009, but shifts the work from the
BOS to the HOA.
Nov 09: SUBSTANTIALLY like July, but "removes" is replaced by
"removes or arranges for the removal."
COMMENT: Fixes a doubtless unintended loophole.
Dec 09: SAME
COMENTARY [sic] after Section 407
1987: This chapter is intended to provide a way to remove rubbish,
trash, weeds, filth, debris, or dilapidated and dangerous buildings that
present a real danger to persons or property. This primarily occurs in
three cases: (1) accumulations or conditions which has a strong
potential for causing or carrying a fire: (2) accumulations or
conditions likely to cause injury to any person; and (3) accumulations
or conditions likely to cause hazards to the health of any conditions
likely to cause hazards to the health of any person. A.R.S. 36-601
provides a separate and additional ordinance and remedy to deal with
accumulations that can cause disease or other health problems. While
this chapter deals with situations caused by the occupant of the
property, it also deals with involuntary acts of dumping by other
persons or acts of nature. However, this section shall only be enforced
when the condition is serious enough to present a real hazard to persons
or property. It is not intended to apply as an 'aesthetic' control -
that is, a way to get the county to beautify a neighbor's site."
COMMENT: The duplicated phrase in the commentary is in the
original from 1987.
Mar 09: Commentary deleted
CHANGE: The deletion might be taken as an indication that the
ordinance was no longer intended to be limited.
Jul 09: Commentary restored
CHANGE: minor proofreading corrections, & the duplicated phrase
is gone.
COMMENT: Restoration of the comment is very welcome.
Nov 09: SAME
Dec 09: SAME
Section 408
1987: If a county removes a dilapidated and dangerous building
pursuant to this section, the County Assessor shall remove the structure
from the property assessment tax rolls.
Mar 09: SAME
Jul 09: No Section 408 exists; substantially similar language has
been moved to 407.
Dec 09: SAME
Section 501(a), opening paragraph
1987: "An owner, occupant or lessee of property affected may appeal
from any notice and order or any action of the hazard abatement officer
under this ordinance, or any assessment made pursuant to this Ordinance,
by filling at the office of the hazard abatement officer written appeal
containing ...."
Mar 09: "An owner, occupant or lessee of property affected may
appeal from the terms of any notice issued pursuant to Section 402 of
this Ordinance, or any determination of amount owing and subject to
possible assessment made pursuant to Section 801 of this Ordinance ...."
CHANGES:
the 1987 language allows appeal "from any notice and order
or any action of the hazard abatement officer," but the March 2009 draft
refers to "appeal from the terms of any notice issued pursuant to
Section 402"
the 1987 language allows appeal from "any assessment," but
the new proposal allows appeal from "any determination of amount owing
and subject to possible assessment made pursuant to Section 801"
Jul 09: "An owner, occupant or lessee of property affected may
appeal from the terms of any notice issued pursuant to Sections 402 or
403 of this ordinance by filing with the Hazard Abatement Officer a
written appeal containing ....
CHANGE: Adds section 403
Nov 09: SAME
Dec 09: SAME
Section 501(a), internal paragraphs 1, 2, 3, 4
COMMENT: NO PROBLEMS
Dec 09: MINOR CHANGE, still no problems
Section 501(a), closing paragraph
1987: The appeal shall be filed within thirty (30) days from the
date of the service of such notice, order or action of the hazard
abatement officer; provided, however, that if the condition is such as
to make it immediately dangerous to the life, limb, property or safety
of the public or adjacent property, such appeal shall be filed within
ten (10) days from the date of the service of the notice and order of
the hazard abatement officer.
Mar 09: The appeal shall be filed with the Office of the Hazard
Abatement Officer within thirty (30) days from the date of the service
of the notice provided by Section 402 or the determination issued
pursuant to Section 801; provided, however, that if said notice alleges
that the condition is such as to make it immediately dangerous to the
life, limb, property or safety of the public or adjacent property, such
appeal shall be filed within ten (10) days from the date of the service
of the notice.
CHANGE: The 1987 language requires filing an appeal within 30
days after service of "such notice, order or action," but the 2009
proposal starts the 30 days upon "service of the notice provided by
Section 402 or the determination issued pursuant to Section 801." Also,
the 2009 language makes it clear that the right to appeal depends upon
service of a notice, not upon proof that the allegations in the notice
are true.
Jul 09: The appeal shall be filed with the Office of the Hazard
Abatement Officer within thirty (30) days from the date of the service
of the notice provided by Section 402 or the determination issued
pursuant to Section 403; provided, however, that if said notice alleges
that the condition is such as to make it immediately dangerous to the
life, limb, property or safety of the public or adjacent property, such
appeal shall be filed within ten (10) days from the date of the service
of the notice.
CHANGE: housekeeping
Nov 09: SUBSTANTIALLY THE SAME
Dec 09: SAME
Section 501(b)
Jul 09: Upon receipt of any appeal filed pursuant to this section,
the Hazard Abatement Officer shall date stamp the appeal and forward a
copy of the appeal to the Clerk of the Board of Supervisors for
scheduling. The Hazard Abatement Officer shall file with the Board and
mail by first class mail to the appellant(s) an Answer to the Appeal,
together with any relevant supporting documentation and proposed
findings of fact at least ten (10) days before the hearing.
Nov 09: SUBSTANTIALLY SIMILAR but states "proposed findings of fact
and conclusions of law".
COMMENT: A good clarification.
Dec 09: SAME
Section 501(c)
Jul 09: As soon as practicable after receiving the written appeal,
the Board of Appeals shall fix a date, time and place for the hearing of
the appeal by the Board. Such date shall be not less than thirty (30)
business days nor more than sixty (60) business days from the date the
appeal was filed with the Hazard Abatement Officer. Written notice of
the time and place of the hearing shall be given at least ten (10)
business days prior to the date of the hearing to each appellant by the
Clerk of the Board either by causing a copy of such notice to be
delivered to the appellant personally or by mailing a copy thereof,
postage prepaid, addressed to the appellant at his address shown on the
appeal.
Nov 09: SIMILAR but requires 15, not 10, business days' notice
before the hearing.
COMMENT: A good change.
Dec 09: SAME
Section 502
1987: Failure of any person to file an appeal in accordance with
the provisions of Section 501 shall constitute a waiver of his right to
an administrative hearing and adjudication of the notice and order or
any portion thereof.
Mar 09: SAME
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Section 503
1987: Only those matters or issues specifically raised by the
appellant shall be considered in the hearing of the appeal.
Mar 09: Only those matters or issues specifically raised by the
appellant, and defenses thereto, shall be considered in the hearing of
the appeal.
CHANGE: The scope of the hearing has been broadened to include
defenses, obviously to be raised by the county, to the items raised by
an appellant.
Jul 09: SAME
Nov 09: Only those matters or issues specifically raised by the
appellant, in the written appeal, as filed, and defenses thereto, shall
be considered in the hearing of the appeal.
COMMENT: A harmless clarification.
Dec 09: SAME
Section 504
1987: Enforcement of any notice and order of the hazard abatement
officer issued under this code shall be stayed during the pendency of an
appeal therefrom which is properly and timely filed.
Mar 09: Enforcement of any notice or determination that is under
appeal shall be stayed during the pendency of that appeal, if that
appeal is timely filed.
CHANGE: Under the March 2009 draft, to obtain a stay, an appeal
need not be "properly and timely" filed, but only "timely."
Jul 09: Enforcement of any notice or determination that is under
appeal shall be stayed during the pendency of the appeal, if that appeal
is timely filed, unless it is determined by the Hazard Abatement Officer
that the condition poses an immediate danger to life, limb, property or
safety of the public or of an adjacent property.
CHANGE: Properly filing an appeal from an order no longer
results in an automatic stay of the order. The county employee who
issued the order decides if you can have a stay while you appeal it.
Nov 09: SAME
COMMENT: In America, we don't let people who issue orders
decide whether or not the orders will be enforced while you appeal
them. By definition, the person who issues orders has already decided
that they are right -- so that person cannot be an impartial decider of
whether they are right, and whether they should be enforced while an
appeal proceeds. The March 2009 wording is best: "Enforcement of any
notice or determination that is under appeal shall be stayed during the
pendency of that appeal, if that appeal is timely filed." Or, perhaps,
if the HAO wishes to prevent an automatic stay, the HAO could request
and obtain a very quick hearing before the Board Of Appeals.
"Commentary" to 504
1987: A detailed appeal process is provided. Owner/occupant can
challenge a decision of the hazard abatement officer to the Board of
Supervisors. The Board will look carefully at the facts to see if the
accumulation of rubbish, trash, filth, weeds, and debris, or dilapidated
and dangerous building, is truly a hazard to public health or safety.
In short, every protection is given to the property owner. There is a
separate process to allow the property owner a right to challenge an
interpretation by the hazard abatement officer to an independent
advisory board.
Mar 09: No "Commentary."
Jul 09: "Commentary" remains deleted, and no wonder, because it
would be ridiculous to say that "every protection is given to the
property owner" when the protection of a stay during appeal has just
been taken away from the owner. The "Commentary" should be included,
and simplified to make its point clearer, thus: "A detailed appeal
process is provided. An owner or occupant can challenge a Hazard
Abatement Officer's decision to the Board of Supervisors. The Board
must look carefully at the facts to see if there is actually an
accumulation of rubbish, trash, filth, weeds, and debris, or a
dilapidated and dangerous building, which is truly a hazard to public
health or safety. In short, every protection must be given to a
property's owner or occupant."
Nov 09: Commentary remains deleted. Its deletion is obviously
connected to section 505, which lets the Supervisors hand off an appeal
to someone else, as discussed directly below.
Dec 09: Commentary is RESTORED, substantially as suggested in the
"Jul 09" a few inches above: "A detailed appeal process is provided.
Owner, occupant, and/or lessee can challenge a decision of the hazard
abatement officer to the Board of Supervisors. The Board will look
carefully at the facts to see if the accumulation of rubbish, trash,
filth, weeds, and debris, or dilapidated and dangerous building, is
truly a hazard to public health or safety. In short, every protection
is given to the property owner."
COMMENT: A good change.
Section 505
Nov 09: The Board of Supervisors, sitting as a Board of Appeals,
shall have the discretion at any time to delegate the hearing of any
appeal brought pursuant to this Ordinance to a duly appointed hearing
examiner to conduct hearings and exercise authority of the Board under
Chapter 6 of this Ordinance, as stated therein, but said hearing
examiner shall not be delegated any of the functions of the Clerk of the
Board thereunder.
Dec 09: SAME
COMMENT: This section essentially nullifies the right to have
the Supervisors hear an appeal. No wonder the Commentary emphasizing
that right is gone. The Commentary said "every protection is given to
the property owner." With the Commentary gone, are people supposed not
to notice that the role of the Board is also gone? Section 505 is an
attempt to cheat the people out of their right to a hearing by three
elected publilc servants, and relegate people to a hearing by one
appointee of unknown qualifications, training, interests, history, and
personality, with no way for a citizen to object to the appointment of
any particular hearing examiner. Section 505 should be deleted.
Section 601(a)
Jul 09: A record of the entire proceedings shall be made by tape
recording or by any other means of permanent recording determined to be
appropriate by the Board.
Nov 09: A record of the entire proceedings shall be made by tape
recording or by any other means of permanent recording determined to be
appropriate by the Board, or the Hearing Examiner, if one is appointed
to hear the appeal.
Dec 09: SAME
COMMENT: A necessary clarification if a hearing examiner is
appointed -- but a hearing examiner should not be appointed; see the
comment to section 505.
Section 601(b)
1987: The proceedings at the hearing shall also be reported by a
phonographic reporter if requested by any party thereto. A transcript
of the proceedings shall be made available to all parties upon request
and upon payment of the fee prescribed therefore. Such fees may be
established by the Board, but shall in no event be greater than the cost
involved.
Mar 09: SAME
Jul 09: The proceedings at the hearing shall also be recorded if
requested by any party thereto. A transcript of the proceedings shall
be made available to any party upon request and upon payment in advance
of the estimated cost of transcription and copying. Upon completion of
transcripts, the actual cost of preparation shall be determined and, if
more than the estimated cost, the requesting party shall pay the balance
due prior to receiving the completed transcript; if the actual cost is
less than the estimated cost, the balance shall be refunded to the
requesting party. If one party orders a transcript of proceedings,
other parties may obtain additional copies of trial transcript for the
reasonable cost of copying, as established by the Clerk of the Board.
CHANGE: An elaborate procedure for paying for a transcript of a
hearing. The procedure described is the way the system works in many
courts, but that is because court reporters often are, or work for,
private businesses, and they make sure they don't work without pay.
There is no apparent reason why the procedure should be codified in such
detail here.
COMMENTS:
All proceedings should be recorded, without the necessity
for a request by anyone. If anyone wants a transcript, payment terms
can be settled with the Court Reporter who will prepare a transcript.
In courts, parties may have the right to examine transcripts
(especially of statements made outside of trial proper, for instance of
depositions as part of discovery) for accuracy, and to make
corrections. Consideration should be given to setting up such
procedures for transcripts at these hearings, too.
Nov 09: SUBSTANTIALLY SIMILAR, but instead of "made available to
any party upon request" reads "made available by the Clerk of the Board
to any party ...."
Dec 09: SAME
COMMENT: A useful clarification.
Section 601(c)
Jul 09: The Board may grant continuances for good cause shown.
Nov 09: SUBSTANTIALLY SIMILAR, but allows for continuances by a
Hearing Examiner also -- though that position should not be created; see
the comment to section 505.
Dec 09: SAME
Section 601(d)
1987: ... the Board, any board member, has the power to administer
oaths and affirmations and to certify to official acts.
Mar 09: ... any Board member has the power to administer oaths and
affirmations and to certify to official acts.
CHANGE: Apparently, clarification that an individual Board
member, not the Board as a whole, may administer oaths etc.
Jul 09: SAME
Nov 09: SUBSTANTIALLY SIMILAR, but allows for oaths etc. by a
Hearing Examiner also, though that position should not be created, as
noted in the comment to section 505.
Dec 09: SAME
Section 601(e)
Jul 09: The Board and its representatives shall proceed with
reasonable dispatch to conclude any matter before it. Due regad shall
be shown for the convenience and necessity of any parties or their
representatives.
Nov 09: SAME
Dec 09: SAME
Section 602, governing the contents of a notice of hearing during an appeal
1987: "You are hereby notified that a hearing will be held ....
You may be, but need not be, represented by counsel...."
Mar 09: "You are hereby notified that a hearing will be held ....
You may be, but need not be, represented by counsel. If you are going
to be represented by counsel, written notice of that representation
should be filed with the Office of the Hazard Abatement Officer at least
five days prior to the hearing...."
CHANGE: Addition of a time limit for an appellant to tell the
county that he will be represented by counsel.
Jul 09: "You are hereby notified that a hearing will be held ....
You may be, but need not be, represented by counsel. If you are going
to be represented by counsel, written notice of that representation must
be filed with the Hazard Abatement Officer at least five days prior to
the hearing...."
CHANGE: Besides clearing away clutter, a change from "should"
to "must" tell the Hazard Abatement Officer, at least five days before a
hearing, that you will have an attorney representing you at the hearing.
Nov 09: "You are hereby notified that a hearing will be held before
the Board Of Appeals at (or before a Hearing Examiner) .... You may be,
but need not be, represented by counsel. If you are going to be
represented by counsel, written notice of that representation must be
filed with the Clerk of the Board of Supervisors at least five business
days prior to the hearing...."
Dec 09: SAME
COMMENTS:
The position of Hearing Examiner should not exist, as noted
in the comment to section 505.
Requiring notice to the Clerk of the Board, not to the
Planning Department's HAO, is a very welcome change.
Changing "days" to "business days" is welcome.
The statement "you may be, but need not be, represented by
counsel" is ambiguous. It means to say that a person has a choice about
whether or not to hire an attorney, but it gives the impression that a
person may not actually need an attorney at all. The County shouldn't
give that impression. The sentence would be more accurate if shorter,
along the lines of "It's your choice whether to have an attorney
represent you or not." That leaves no implication about whether or not
a person "needs" an attorney.
Section 603
COMMENT: In the 1987 ordinance, the sections jump directly from 603
to 605; evidently, 604 was omitted by mistake. As of November 2009, 603
concerns only subpoenas.
Dec 09: SAME
Section 603(a)
1987: ... The issuance and service of such subpoena shall be
obtained upon the filing of an affidavit therefore which states the name
and address of the proposed witness; specified the exact things sought
to be produced and the materiality thereof in detail to the issues
involved ....
Mar 09: ... The issuance and service of such subpoena shall be
obtained upon the filing of an affidavit therefore which states the name
and address of the proposed witness; specifying the exact items sought
to be produced and stating, in detail, the materiality thereof to
matters at issue in the appeal ....
CHANGE: a slight rewrite aimed at clarification
COMMENT: the "materiality" comment may require a party to
reveal his theory of the case to his opponent before the hearing. It
might be more fair to replace this by penalties for obtaining subpoenas
for reasons that are legally "frivolous."
Jul 09: ... The issuance and service of such subpoena shall be
obtained upon the filing of an affidavit therefore, at least ten (10)
business days prior to the date of the hearing ....
CHANGE: addition of a 10-day time limit
COMMENT: Complications will result from the interaction of the
10-day requirement here, and the 5-day requirement for hiring a lawyer.
A lawyer might be hired, and see the need for issuing subpoenas, after
the time for issuing subpoenas has passed. It would be better to set a
deadline for hiring an attorney to be far enough before the hearing to
let the attorney become familiar with the case in time to meet the other
deadlines.
Nov 09: The Board, or the Hearing Examiner .... such subpoena
shall be obtained ... at least fifteen (15) business days prior to the
date of the hearing ....
Dec 09: SAME
CHANGES:
inserting language referring to a Hearing Examiner
changing the lead time for subpoenas to 15 days
COMMENTS:
the position of Hearing Examiner should not exist, as noted
in the comment to section 505
increasing the lead time for subpoenas to 15 days is a good idea
Section 603(b)
1987: When any person refuses without lawful excuse to attend any
hearing or to produce material evidence in his possession or under his
control as required by any subpoena served upon such person as provided
for herein, the Board may seek a court order to compel such attendance
or production.
Mar 09: SAME
Jul 09: SAME
Nov 09: "the Board, or the Hearing Examiner, if one is appointed,
may seek a court order ...."
CHANGE: adding a reference to a Hearing Examiner
Dec 09: SAME
COMMENT: the position of Hearing Examiner should not exist, as
noted on the comment to section 505
Section 604
COMMENT: In 1987, section number "604" was skipped over, obviously
by mistake. Present section 604 deals generally with procedure at a
hearing, which was the subject of section 603 in 1987. The March 2009
draft followed generally the same organization, but renumbered the
sections into a new section 604. The July 2009 draft lumped many of the
sections together into a "catchall paragraph," 604(a), discussed below.
Section 604(a)
July 09: Hearings may be conducted in an informal manner and
without strict adherence to the rules of evidence required in judicial
proceedings. Neither the manner of conducting the hearing nor the
failure to adhere to the rules of evidence required in judicial
proceedings shall be grounds for reversing any administrative decision
or order, providing that the evidence supporting such decision or order
is substantial, reliable, and probative. Irrelevant or unduly
repetitious evidence shall be excluded. Every person who is a party to
such proceeding shall have the right to be represented by counsel, to
submit evidence in open hearing and shall have the right of
cross-examination. Any attorney appearing on behalf of any party shall
enter his appearance, in writing and addressed to the Hazard Abatement
Officer, at least five (5) business days prior to the hearing.
COMMENT: This does not include all the rights provided in the 1987
ordinance. This is evident upon actual examination of the following
paragraphs from 1987:
-- 1987 Section 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.
Mar 09, as 604(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 a civil action in a court of competent jurisdiction in
this case.
CHANGE: immaterial change from plural "actions" and "courts" to
singular
Jul 09: with the omission of this language, any specific reference
to hearsay is gone
Nov 09: any reference to hearsay remains absent
Dec 09: SAME
-- 1987 Section 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.
Mar 09, as 604(d): SAME
Jul 09: with the omission of this language, any specific reference
to admissibility is GONE
Nov 09: any reference to admissibility remains absent
Dec 09: SAME
-- 1987 Section 603(e)
1987: Irrelevant and unduly repetitious evidence shall be excluded.
Mar 9, as 604(e): SAME
Jul 09: Substantially the same sentence -- differing only in saying
"irrelevant or unduly" instead of "irrelevant and unduly" -- is in 604(a).
Nov 09: SAME
Dec 09: SAME
-- 1987 Section 603(f) lists six rights which each party has, "among
others:"
-- -- 1. To call and examine witnesses on any matter relevant to the
issues of the hearing;
Mar 09: SAME, as 604(f)(1)
Jul 09: not specified
Nov 09: remains omitted
Dec 09: SAME
-- -- 2. To introduce documentary and physical evidence;
Mar 09: SAME, as 604(f)(2)
Jul 09: not specified, but generally included within the right "to
submit evidence" in the catchall paragraph
Nov 09: SAME
Dec 09: SAME
-- -- 3. To cross-examine opposing witnesses on any matter relevant to
the issues of the hearing;
Mar 09: SAME, as 604(f)(3)
Jul 09: not specified, but included within the "right of
cross-examination" in the catchall paragraph
Nov 09: SAME
Dec 09: SAME
-- -- 4. To impeach any witness regardless of which party first called
him to testify;
Mar 09: SAME, as 604(f)(4)
COMMENT: the March 2009 draft refers to "him or her," a
difference that has no effect on meaning
Jul 09: not specified
Nov 09: SAME
Dec 09: SAME
-- -- 5. To rebut the evidence against him; and
Mar 09: SAME, as 604(f)(5)
Jul 09: not specified, but generally included within the right "to
submit evidence" in the catchall paragraph
Nov 09: SAME
Dec 09: SAME
-- -- 6. To represent himself or to be represented by anyone of his
choice who is lawfully permitted to do so.
Mar 09: SAME, as 604(f)(6)
Jul 09: not specified, but included within "the right to be
represented by counsel" in the catchall paragraph
Nov 09: SAME
Dec 09: SAME
Section 604(b)(1)
1987, as 603(g)(1): In reaching a decision, official notice may be
taken, either before or after submission of the case decision, of any
fact which may be judicially noticed by the courts of this state or of
official records of the Board or departments and ordinances of the
County or rules and regulations of the Board.
Mar 09, as 604(g): In reaching a decision, official notice may be
taken, either before or after submission of the case decision, of any
fact which may be judicially noticed by the courts of this state; or of
official records of the Board or of any County government departments;
of ordinances of the County; or of any rules and regulations promulgated
by the Board, sitting as a Board of Supervisors.
CHANGE: Apparently, the addition of punctuation and a little
extra language, for clarification purposes only.
Jul 09: In reaching a decision, official notice may be taken,
either before or after submission of the case decision, of any fact
which may be judicially noticed by the courts of this state; of official
records of the Board or of any County government departments; of
ordinances of the County; or of any rules and regulations promulgated by
the Board, sitting as a Board of Supervisors.
CHANGE: minor punctuation changes
Nov 09: SUBSTANTIALLY like July
Dec 09: SAME
COMMENT: It remains confusing to talk about "submission of the
case decision," because "submission of the case" occurs when both sides
have finished their presentation, while "submission of the decision"
refers, most likely, to the filing of a decision in the matter; the two
events are separate, and "submission of the case decision" is basically
gibberish.
Section 604(b)(2)
1987, as 603(g)(3): Parties present at the hearing shall be given a
reasonable opportunity, on request, to refute the officially noticed
matters by evidence or by written or oral presentation of authority, the
manner of such refutation to be determined by the Board of Appeals.
Mar 09, as 604(g)(3): SAME
Jul 09: SAME
Nov 09: SUBSTANTIALLY like July, with provision for a Hearing
Examiner instead of the Board
Dec 09: SAME
COMMENT: Allowing a Hearing Examiner to replace the Board is a
bad idea, as noted in the comment to section 505.
Section 604(b)(3)
1987, as Section 603(g)(4): The Board may inspect any building or
premises involved in the appeal during the course of the hearing,
provided that: (i) notice of such inspection shall be given to the
parties before the inspection is made; (ii) the parties are given an
opportunity to be present during the inspection; and (iii) the Board
shall state for the record upon completion of the inspection the
material facts observed and the conclusions drawn therefrom. Each party
then shall have a right to rebut or explain the matters so stated by the
Board.
Mar 09, as 604(g)(3): SAME
Jul 09: SAME
Nov 09: SUBSTANTIALLY THE SAME, except in providing for a Hearing
Examiner instead of the Board, and adding a reference to following "the
Open Meeting Law."
Dec 09: SAME
COMMENTS:
Appeals, as generally understood, don't hear new evidence.
The procedure proposed here changes a nominal "appeal" into an actual
new hearing. This is a bad idea. A party could make one case at the
original hearing, then make an entirely different case under 604(b)(3).
It's not really an appeal if new evidence is taken. If either side
wants the Board to inspect premises, or the Board wants to inspect
premises, that should be done during the hearing itself.
Allowing a Hearing Examiner instead of requiring the Board
is a bad idea, as noted in the comment to section 505.
Referring to the Open Meeting Law is a good idea.
Section 605(a)
1987: Where a contested case is heard before the Board, no member
thereof who did not hear the evidence or has not read the entire record
of the proceedings shall vote on or take part in the decision.
COMMENT: This doesn't provide due process. Nobody should judge
a case who did not actually attend, and pay attention at, the hearing.
A person who has merely read the record shouldn't be allowed to vote,
any more than a juror who falls asleep during a trial should be allowed
to vote; reading a transcript is no substitute for seeing and hearing
witnesses.
Mar 09: Where a contested case is heard before the Board, any
member thereof who did not hear the evidence or did not have the
opportunity to read the entire record of the proceedings shall vote on
or take part in the decision.
COMMENT: Changing "no member thereof" to "any member thereof"
results in a sentence that is gibberish if read carefully, and, if read
sloppily, is a significant denial of due process. It would still, like
the 1987 version, let a supervisor vote even if he did not see and hear
the witnesses.
Jul 09: SAME
Nov 09: When a case is heard before the Board, any member thereof
who did not hear the evidence or did not have the opportunity to read
the entire record of the proceedings shall not vote on or take part in
the decision.
CHANGE: changes "shall vote" to "shall not vote."
Dec 09: SAME
COMMENTS:
The Department apparently wants to fix the problem without
being seen to fix the problem. Instead of saying "Any member ... who
did not hear the evidence ... shall not vote," just say "No member ...
who did not hear the evidence ... shall vote." That is what is meant,
and there is no good reason not to say so clearly, instead of producing
gibberish. Here is how the sentence could read, to make its point even
more clearly: "When a case is heard before the Board, no member thereof
who did not hear and observe all of the witnesses and evidence, or
attend the entire hearing, shall participate in the hearing after said
lapse, nor vote on or take any part in the decision."
Also, who would pay a court reporter for the accelerated
production of a transcript? Even the shortest transcript costs hundreds
of dollars; transcripts can quite easily run into thousands of dollars;
accelerated transcripts cost even more. Since the accelerated
transcript would only be needed if a supervisor insisted on judging a
case without attending a case, the supervisor should have to personally
pay for the extra cost of acceleration. Surely the citizen on trial
should not pay for a supervisor's inability to do the job, nor should
the public treasury pay. Requiring a supervisor to pay would, luckily,
have the incidental effect of getting supervisors either to do their
job, or get out of the way.
Section 605(b)
1987: The decision shall be in writing and shall contain findings
of fact, a determination of the issues presented, and the requirements
to be complied with. A copy of the decision shall be delivered to the
appellant personally or sent to him by certified mail, postage prepaid,
return receipt requested.
Mar 09: SAME
Jul 09: SAME
Nov 09: "The decision shall be issued in writing within 60 calendar
days of the conclusion of the hearing, unless extraordinary
circumstances intervene, and shall contain findings of fact, a
determination of issues presented, and the requirements to be complied
with, and may provide that, if unpaid within 30 calendar days of the
decision, that decision shall be filed with the County Recorder, and
thereby constitute an assessment against the subject property."
Dec 09: SAME
COMMENTS:
The 60 day requirement seems too long, especially compared
to the mere 30 days allowed to decide whether to appeal or pay. Surely,
if a case is so complicated that the Board takes 60 days to decide after
a hearing, a citizen should have the same amount of time to decide how
to respond to a complicated situation.
Automatically converting a decision into an assessment is
another assault on due process. Doing away with the commentary
emphasizing "protection of citizens' rights," letting the Board dodge
its duty to hear appeals, and converting unsuccessful appeals into
assessments against property, all seem to be prongs of one plan, to
reduce citizens' rights and reduce county government's responsibility to
treat citizens fairly.
Section 605(c)
Mar 09: The Hearing Examiner shall, within 20 calendar days of the
conclusion of the hearing, submit to the Board of Appeals a proposed
written decision, with proposed findings of fact and conclusions of
law. Within 20 calendar days of filing of the proposed decision, and
after review of the written record, which shall include all pleadings
and orders in the Hearing Examiner's files, all evidence admitted at the
hearing, and any audiotape of proceedings, but no new evidence, the
Board shall adopt, modify or reject the proposed decision of the Hearing
Examiner.
Dec 09: SAME
COMMENTS
What an incredible botch. The Board would -- in theory --
do just as much work as if conducting the hearing itself, but without
having the benefit of seeing and hearing any live testimony; so having a
Hearing Examiner wouldn't save the Board any work, but would make the
Board into a poor substitute for a trial court. On the other hand, the
Board would also, in effect, be acting as an appellate board, but one
without the powers that a real appellate board must have. For instance,
the Board could see all evidence ADMITTED at the hearing, but could not
see all evidence OFFERED at the hearing, so the Board could not make a
finding that any evidence had been improperly excluded; in other words,
the dice would be unfairly loaded in favor of the decision that the
Hearing Examiner made -- because there would be no way to argue that the
Hearing Examiner improperly refused to admit any evidence.
The County would have two 20-day deadlines under 605(c), but
under 605(b) the County would have 60 days to act; that leaves 20 extra
days for the County to twiddle its thumbs, while a citizen waits for a
decision which must be very important to him or her. Why does the
County think it should have permission to toy with citizens this way?
Where, in the process under 605(c), would the Board review
the most important part of the order to a citizen, "the requirements to
be complied with"?
New section 605(c) provides another good reason for not
allowing the creation of a "Hearing Examiner." That position confers no
benefit on anyone; on the contrary, it is a complicated, unworkable drag
on both efficiency and due process -- a combination which is rarely seen.
Section 605(d)
1987, as 605(c): The effective date of the decision shall be as
stated therein.
Mar 09: SAME
Jul 09: SAME
Nov 09: SAME
Dec 09: SAME
Sections 701, replacing outdated 701(a) and (b)
Nov 09: If no timely appeal is taken pursuant to Chapter 5 of this
ordinance from a determination of costs imposed against a property owner
pursuant to Section 403, or if a written decision issued pursuant to
Section 605(b) or (c) so requires, the Hazard Abatement Officer shall
file that determination or decision with the County Recorder, and by
that filing an assessment against the subject property shall be established.
Dec 09: SAME
COMMENT: Treats citizens more fairly than old 701(a) & 701(b);
a good idea.
Section 702
1987, numbered as section 806: The validity of any assessment made
under the provisions of this chapter shall not be contested in any
action or proceeding unless the same is commenced within thirty (30)
days after the assessment is placed upon the assessment roll as provided
herein. Any appeal from a final judgment in such action or proceeding
must be perfected within thirty (30) days after this entry of such judgment.
Mar 09: The validity of any assessment made under the provisions of
this chapter shall not be contested in any further judicial action or
proceeding unless an administrative appeal has been timely brought
pursuant to Sections 501 and 801 of this Ordinance, and said appeal
rights have been exhausted. Any judicial appeal of the Board's final
determination of costs established pursuant to Section 804, above, must
be commenced within thirty (30) days after the date of the Board's final
determination.
CHANGE: Appears aimed at taking notice of the legal doctrine of
"exhaustion of administrative remedies." Probably does not make any
change in substance.
Jul 09, renumbered as section 702: The validity of any assessment
made under the provisions of this chapter shall not be contested in any
further judicial action or proceeding unless an administrative appeal
has been timely brought pursuant to Sections 501 of this Ordinance, and
said appeal rights have been exhausted. Any judicial appeal of the
final determination of costs established pursuant to Section 403, above,
must be commenced within thirty (30) days after receipt of notice of
said determination.
CHANGE: housekeeping
Nov 09: The validity of any assessment made under the provisions of
this chapter shall not be contested in any further judicial action or
proceeding unless an administrative appeal has been timely brought
pursuant to Chapter 5 of this Ordinance, and said appeal rights have
been exhausted.
Dec 09: SAME
CHANGES:
Mentions "Chapter 5" instead of "Sections 501," a good change.
Omits the last sentence about a 30 day appeal deadline. The
change is fine because Section 403 states its own deadline, and
restating it here is unnecessary and could create complications if
section 403 were changed.
Section 703
1987, numbered as section 807: If any costs or charges, as imposed
pursuant to this ordinance, are not paid by the owner, occupant or
lessee within (30) days of such removal, such unpaid amount shall
constitute an assessment upon the lots and tracts of land from which the
rubbish, trash, weeds, filth or debris are removed and a lien upon said
lot, tracts, or land until paid. Said lien may be perfected by the
county against the subject property by recording a notice of lien in the
Office of the Cochise County Recorder. Such notice of lien shall
specify the nature of assessment, the amount of the lien and the name
and address of the charges assessed. The lien shall continue in full
force and effect on the tract of land or lot until the chares assessed
are paid. Such liens are subject and inferior to the lien for general
taxes and to all prior recorded mortgages and encumbrances of record.
The County may bring an action to enforce the lien in the Cochise County
Superior Court at any time after the recording of the assessment, but
failure to enforce the lien by such action does not affect its
validity. The recorded assessment is prima facie evidence that the
truth of all matters recited in the assessment and of the regularity of
all proceedings before the recording of the assessment.
Mar 09: If any costs or charges, as imposed pursuant to this
ordinance, are not paid by the owner, occupant or lessee within (30)
days of such removal, such unpaid amount shall constitute an assessment
upon the lots and tracts of land from which the rubbish, trash, filth or
debris are removed and a lien upon said lot, tracts, or land until
paid. Said assessments shall be due and payable in equal installments,
as follows:
1. Assessments of less than five hundred dollars ($500.00)
shall be paid within one year after the assessment is recorded;
2. Assessments of five hundred dollars ($500.00) or more but
less than one thousand dollars ($1,000.00) shall be paid within two
years after the assessment is recorded;
3. Assessments of one thousand dollars ($1,000.00) or more but
less than five thousand dollars ($5,000.00) shall be paid within three
years after the assessment is recorded;
4. Assessments of five thousand dollars ($5,000.00) or more but
less than ten thousand dollars ($10,000.00) shall be paid within six
years after the assessment is recorded;
5. Assessments of ten thousand dollars ($10,000.00) or more
shall be paid within ten years after the assessment is recorded.
A lien may be perfected by the county against the subject property
in the amount of the assessment imposed by recording a notice of lien in
the Office of the Cochise County Recorder. Such notice of lien shall
specify the nature of assessment, the amount of the lien and the name
and address of the owner of the lot or tract and the person failing to
pay the charges assessed. The lien shall continue in full force and
effect on the tract of land or lot until the charges assessed are paid.
Such liens are subject and inferior to the lien for general taxes and to
all prior recorded mortgages and encumbrances of record. The County may
bring an action to enforce the lien in the Cochise County Superior Court
at any time after the recording of the assessment, but failure to
enforce the lien by such action does not affect its validity. The
recorded assessment is prima facie evidence that the truth of all
matters recited in the assessment and of the regularity of all
proceedings before the recording of the assessment.
CHANGES
Addition of a timetable as required by statute, and
correction of some minor clerical errors.
"Weeds" removed
Jul 09, renumbered as 703: SUBSTANTIALLY the same.
CHANGE: "weeds" restored
Nov 09: The first sentence now reads "If any costs or charges, as
imposed pursuant to this ordinance, are not paid by the owner, occupant
or lessee within (30) days of such removal, or, if appealed, within
thirty (30) days of issuance of any written administrative decision on
that appeal, such unpaid amount shall ...."
Dec 09: SAME
CHANGE: Addition of a deadline after an unsuccessful appeal
COMMENT: A perfectly acceptable change.
Section 704
1987, numbered as section 808: All such assessments remaining
unpaid after thirty (30) days from the date of recording on the
assessment roll shall become delinquent and shall bear interest at the
rate established for delinquent taxes from and after said date.
Mar 09: SAME
Jul 09, renumbered as 704: SAME
Nov 09: SAME
Dec 09: SAME
Section 705
1987, numbered as section 809: After confirmation of the report,
certified copies of the assessment shall be given to the Assessor and
the County Treasurer, who shall add the amount of the assessment to the
next regular tax bill levied against the parcel.
Mar 09: SAME
Jul 09, renumbered as 705: SAME
Nov 09: The Hazard Abatement Officer shall supply certified copies
of the assessment to the Assessor and the County Treasurer, who shall
add the amount of the assessment levied against the parcel to the next
regular tax bill for that parcel, in accord with the schedule of
assessments provided in Section 703, above.
Dec 09: SAME
CHANGE: Specifies who shall supply the copies.
COMMENT: A good idea.
Section 706
1987, numbered as Section 810: If the County Assessor and the
county tax collector assess property and collect taxes for this
jurisdiction, a certified copy of the assessment shall be filed by the
Hazard Abatement Officer with the County Treasurer within thirty (30)
days after recordation of the lien. The descriptions of the parcels
reported shall be those used for the same parcels on the County
Assessors map book for the current year.
Mar 09: SAME
Jul 09, renumbered as 706: SAME
Nov 09: A certified copy of the assessment shall be filed by the
Hazard Abatement Officer with the County Treasurer within thirty (30)
days after recordation of the lien. The descriptions of the parcels
reported shall be those used for the same parcels on the County
Assessors map book for the current year.
Dec 09: SAME
CHANGES: Drops the opening clause, and specifies who shall file
the certified copy of the assessment.
COMMENTS: Good ideas.
Section 707
1987, numbered as Section 811: The amount of the assessment shall
be collected at the same time and in the same manner as ordinary
property taxes are collected and shall be subject to the same penalties
and procedure and sale in case of delinquency was provided for ordinary
property taxes. All laws applicable to the levy, collection and
enforcement of property taxes shall be applicable to such assessment.
Mar 09: SAME
Jul 09, renumbered as 707: SAME
Nov 09: SUBSTANTIALLY THE SAME
Dec 09: SAME
CHANGE: Corrects a minor typo, "was provided," to "as provided."
Section 708
1987, numbered as Section 812: All money recovered by payment of
the charge or assessment or from the sale of the property at foreclosure
sale shall be paid to the treasurer of this county, who shall credit the
same to the General Fund.
Mar 09: SAME
Jul 09, renumbered as 708: SAME
Nov 09: All money recovered by payment of the charge or assessment
or from the sale of the property at a tax deed land sale, up to the
amount of the assessment, shall be paid to the treasurer of this county,
who shall credit the same to the Hazard Abatement Fund. In the event of
a sale, the balance of any funds received in excess of the assessment
shall be paid to the County General Fund.
Dec 09: SAME
CHANGES:
"Foreclosure sale" becomes "tax deed land sale."
Money goes mainly to the Hazard Abatement Fund, with the
General Fund receiving only excess amounts.
COMMENTS: No apparent problem.
Section 709
1987, numbered as Section 813: A prior assessment for the purpose
provided in this section is not a bar to a subsequent assessment or
assessments for such purposes, and any number of liens on the same lot
or tract of land may be enforced in the same action.
Mar 09: SAME
Jul 09, renumbered as 709: SAME
Nov 09: SAME
Dec 09: SAME
Sections 801, 802, and 803 are legal "boilerplate" which is required,
does not need thought, and should not be tinkered with.
III. Sections that have vanished but should be reinstated
1987 Section 801
1987: The director of public works shall keep an itemized account
of the expense incurred by Cochise County in the work or removal of any
materials, done pursuant to the provisions of this ordinance. Upon the
completion of the work or removal, said director shall prepare and file
with the hazard abatement officer a report specifying the work done, the
itemized and total cost of the work, a description of the real property
upon which the hazard is or was located, and the names and addresses of
the persons entitled to notice pursuant to Section 402.
Mar 09: Substantially similar, and adds "Upon receipt of said
determination, the Hazard Abatement Officer shall serve personally or by
certified mail, the parties entitled to notice pursuant to Section 402,
above, a copy of said determination, together with copies of Chapters 5
and 6 of this Ordinance, governing appeals and appeal procedures."
Jul 09: GONE
COMMENT: If the County is going to be charging people, why not keep
accurate records of the expenses? The County apparently intends to
charge people for estimated costs, without ever providing a way to
compare estimates with reality.
1987 Section 802
1987: Upon receipt of said report, the hazard abatement officer
shall present it to the Board of Supervisors shall fix a time, date and
place for hearing said report and any protests or objections thereto.
The clerk of the Board of Supervisors shall cause notice and said
hearing to be posted upon the property involved, published once in a
newspaper of general circulation in this jurisdiction, and served by
certified mail, postage prepaid, addressed to the owner of the property
as his name and address appear on the last equalized assessment roll of
the County, if such so appear, or as known to the clerk. Such notice
shall be given at least ten (10) days prior to the date set for hearing
and shall specify the day, hour and place when the Board of Supervisors
will hear and pass upon the director's report, together with any
objections or protests which may be filed as hereinafter provided by
person interested in or affected by the proposed charge.
Mar 09: The determination of costs established pursuant to Section
801, above, shall be the amount owing by the party charged and payment
shall be due from said party within 30 days of service of that
determination, unless an appeal of that determination is lodged,
pursuant to Chapter 5, within that time. If an appeal is timely lodged
from a determination issued pursuant to Section 801, above, the Hazard
Abatement Officer shall present it to the Board of Supervisors who shall
fix a time, date and place for hearing said report and any protests or
objections thereto. The clerk of the Board of Supervisors shall provide
notice thereof as required by Section 501(c) of this Ordinance, together
with copies of any objections or protests filed pursuant to Section 803,
below, up to date of mailing of said notice.
Jul 09: GONE
COMMENT: If 1987 Section 801 is restored, something like 1987 Section
802 must be restored also.
1987 Section 803
1987: Any person interested in or affected by the proposed charge
may file written protests or objections ... at any time prior to the
time set for the hearing on the report of the director....
Mar 09: Any person interested in or affected by the proposed charge
may file written protests or objections ... at least fourteen (14) days
prior to the time set for the hearing on the determination of costs....
CHANGE: The time for opposing the charges moves from "any time
prior to" the hearing to at least 14 days before.
Jul 09: GONE
COMMENT: Why should people interested in the change, or affected by it,
lose their right to protest or object?
1987 Section 804
1987: Upon the day and hour fixed for the hearing the Board of
Supervisors shall hear and pass upon the report of the director together
with any such objections or protests. The Board of Supervisors may take
such revision, correction or modification in the report or the charge as
it may deem just; and when the Board of Supervisors is satisfied with
the correctness of the charge, the report (as submitted or as revised,
corrected or modified) together with the charge, shall be confirmed or
rejected. The decision of the Board of Supervisors on the report and
the charge, and on all protest or objections, shall be final and conclusive.
Mar 09: substantially the same
Jul 09: GONE
COMMENT: If 1987 Section 803 is restored, something like 1987 Section
804 must also be restored.