COMMENTS ON PROPOSED CHANGES TO THE
               COCHISE COUNTY ZONING REGULATIONS

I.  Introduction

This report states some citizen concerns about the Cochise County Zoning Regulations and the proposed changes set for a hearing at the county Board Of Supervisors at 9 a.m. Tuesday, May 20, 2008.

When the county Planning Department published its proposed changes, there was so much public reaction that the Department scheduled several public meetings dedicated to the changes.  The meetings were attended by Department employees including Judy Anderson and several of her subordinates, plus over two dozen citizens, with representatives from groups including the Cochise County Individual And Property Rights Association.

The meetings considered every regulation, with an emphasis that generally, though not always, depended on citizen interest.  The proposals now submitted to the supervisors have adopted many of the suggestions from citizens.

The work involved in these meetings -- hundreds of hours by citizens, in addition to the work by Department employees -- has paid off.  The proposals presented to the Board would be very different if each side had not reached out to the other to communicate its thoughts and beliefs.  Some disagreements remain, but very few compared to when the meetings began.

This report might give the impression that citizens are only criticizing the Department.  That's not so, but it would waste time to discuss items where agreement was reached.  This report focuses on items where disagreements remain.

When citizens presented these concerns at a Planning & Zoning Commission meeting, most of the concerns sank like stones.  That was frustrating, because many commissioners seemed to know little about what they were voting on.  The Sierra Vista Herald reported:  "At the end of the public hearing, Commissioner Duane Brofer asked, 'What do we do now?  I don't think this can be settled tonight.'  Commission Chair Karen Corey said, 'I'm not even sure of what I've read.'"  Nonetheless, after very little discussion, the commissioners voted to forward what they didn't understand.

In fairness to the commissioners, some of whom clearly hadn't read the Department's information packet beforehand, the packet was quite thick, yet did not present citizen input adequately, and the commissioners got little citizen input beforehand, because the county system for email from citizens was "down" the week before.

This report hopes to avoid such problems, by acquainting the Board well beforehand with some citizen input.  Following is a list of citizens' comments and suggestions -- first general, then specific -- then a short conclusion.

II.  Specific Suggestions

A.  In the regulations, Article 2, labeled "Definitions," also contains regulations.  This makes it difficult for citizens to find all the regulations that apply to them.  Regulations should be in separate sections from definitions.

B.  Regulation 202 now says "Any dispute regarding the meaning of any word or term used in these Regulations shall be decided by the Zoning Inspector, and all such decisions shall be subject to appeal to the appropriate Board of Adjustment" (the Zoning Inspector is also the Director of the Planning Department).  At the citizens' meetings, there were several objections, including "State law supersedes this" and "It's not up to a citizen to show he's right, it's up to the Department to prove its case."

C.  Proposed Regulation 301.04 says "Unless a term is specifically defined in Article 2, the common definition as contained in Webster's Standard Dictionary or similar standard dictionaries will be used."  There are hundreds of "standard dictionaries," and if the Department could not persuade the supervisors to place a particular definition in Article 2, this language would let the Department search dictionaries for a definition it liked, such as applying the term "animal husbandry" to dogs and thereby regulating dog owners in inappropriate ways that violate the regulations.

D.  "Swimming Pool" is "defined" as "A swimming pool or other contained body of water that contains water eighteen inches or more in depth at any point and that is wider than eight feet at any point and is intended for swimming, shall be protected by an enclosure surrounding the pool area as provided for in Section 1816 and ARS 36-1681."  That's a regulation, not a definition.

1.  ARS 36-1681 doesn't apply to homes where every resident is at least 6 years old; the regulation should include this statutory provision.

2.  If safety is the concern, why distinguish between a wading pool and a stock pond?

3.  Since the county is in a water emergency, and will be so for the foreseeable future, why allow swimming pools at all?

E.  Regulation 306 says "these Zoning Regulations shall apply independently of any easement, covenant, deed restriction, or other agreement between private persons except as addressed in Section 2003.05, or as noted in these Regulations" (Section 2003.05 applies to building setbacks from property lines).

1.  How can these regulations override all easements, covenants, deed restrictions, and other agreements between private persons?  The Department often cites CC&Rs ("Covenants, Conditions, & Restrictions") which homeowners sign in housing tracts; isn't it inconsistent to override them here?

2.  "Property is a bundle of rights" is a legal truism.  Agreements among property-owners, including CC&Rs, are themselves property.  Can the county interfere with this property?

F.  Regulation 605.01(B) (see also 705.01, 805.01, 905.01, 1005.01, 1104.01, 1204.02, 1304.03, 1404.03) says "Recreational Vehicles (RV's) are allowed as follows:...  Temporary occupancy of 1 RV in conjunction with a permitted principal use up to 6 months in a calendar year (a Temporary Use Permit is required; stays of 15 consecutive days or less do not require a permit)."  So the county can keep Uncle Pudge from snowbirding with Nephew Drudge for 3 months unless Drudge pays a fee to the county.

1.  What service does the county provide in return for this fee?

2.  Planning Department "Staff" says it "supports retaining the need for a temporary permit for longer stays to enable us to enforce this requirement in instances where RV's are used as permanent dwellings without septic systems."  Apparently, the Department's concern isn't long stays, it's RVs dumping blackwater on the ground.  A regulation can prohibit that practice.  Anything more exceeds what is needed to meet the Department's concern.

3.  Section 1817.01 lists complicated requirements for temporary use permits:  a description of the property; site plan; description of the proposed use; information about setbacks, sanitary facilities, and availability of parking; plus a fee of $45 -- just for a guest to park for over 15 days.  This is ridiculous.

G.  Regulation 1505 says the Zoning Inspector may authorize "minor" amendments, but the regulations do not define "major" or "minor" amendments.  What process exists for informing the public beforehand what is major or minor, or for objecting to the Department head's determination of "minor"?

H.  Regulation 1703, "Administrative Rules," says "The County Zoning Inspector may adopt administrative rules and policies consistent with these Zoning Regulations ... that carry into effect the provisions of these Regulations."  Shouldn't public notice, appeal, and review processes be provided for in the regulation?

I.  Regulation 1707, "Withholding Building/Use Permits," includes "If a building/use permit cannot be issued by the Zoning Inspector, the application shall be null and void 120 days after the date of notice."  Some citizens also want time limits for decisions about issuing permits.  Otherwise, a person might wait several months, only to be told that there are problems with permit. Such language is simple, such as "The inspector shall within XX days provide a written decision."

J.  Regulation 1714.01 says "Each building/use permit application shall be accompanied by payment to the 'Cochise County Treasurer' of fees in accordance with the adopted Planning and Zoning Fee Schedule."

1.  Such fees require a citizen to pay the county for the time an employee takes on the citizen's request, even though taxes paid by citizens already pay the employee's salary.

2.  State law prohibits the county from charging the public a fee for a service, if the fee exceeds the cost of the service.  Do the Department's fees comply with this statute?

3.  Citizens have wondered if the Department sets its fees based on what other counties charge.  If that's how the county is setting its fees, that's not what the law requires.

K.  Proposed Regulation 1714.03, "Building/Use Permit Fee Surcharge," says "Wherever construction on a site requiring a building/use permit has begun prior to issuance of an approved building/use permit, the applicant shall be subject to a surcharge added to the applicable fee ...."  This reduces the present requirement for "substantial construction" before surcharges, down to mere "construction."  This would let the Department demand substantial fees as soon as any dirt is swept up.  With the Department's record of abusing its discretion, is this change wise?

L.  Proposed Regulation 1804.08, "Outdoor Storage and Display Area Improvements of Vehicles, Materials or Equipment," says "Areas of a site reserved or used for the outdoor storage and display of vehicles, materials or equipment, shall be improved with at least a dust-free, gravel surface, or with an equivalent or better surface approved by the County Zoning Inspector."

1.  Anderson called this "less restrictive than a paved surface now required."  Actually, existing regulations do not require paving of "outdoor storage and display areas of vehicles, materials, or equipment."

2.  For rural areas, that is, quite simply, ridiculous.  Is all of Cochise County to be covered with gravel?

3.  This regulation should be moved to the outdoor storage section, which a citizens' committee will review before any changes are made.

M.  The County should work for changes to State "open range" and fencing laws, to require ranchers to keep their livestock within permitted grazing areas, perhaps fenced so as not to injure or harm residential property.  It was suggested that the County create a new zoning district for Agricultural Land.

N.  Fees for county services might be based on income.


III.  General Suggestions

A.  All the regulations need a thorough study by the community.  The present system, "tweaking" regulations periodically without regard to whether they are necessary, or perhaps repugnant to common sense, has made them too long and hard to understand.  This oversight is not restricted to the Zoning Regulations, but also extends to the Building Code, despite the supervisors' mandate for an elaborate evaluation.

B.  Regulations should not infringe excessively on people's rights.  For instance, Regulation 307 says "Any use not permitted in a district, either as a permitted use or as a special use, is specifically prohibited from a zoning district.  A use shall be permitted only if it reasonably fits under the generic category of uses and is not otherwise excepted there from."  That is, any use not permitted is prohibited.  That seems un-American, and many citizens wanted Regulation 307 deleted, or reversed so that anything not prohibited is permitted.  The Department response was "Staff strongly recommends that this language ... be left as is," for the five reasons quoted and discussed below.

1.  "Other County Planning Directors were polled and their Zoning Regulations contain similar language as do model ordinances put out by the American Planning Association."  That is merely the schoolchild's argument that "everybody does it."

a.  Department head Anderson asked 14 Arizona counties if they had an ordinance like Regulation 307.  Apache, Coconino, Maricopa, Mohave, Santa Cruz, and Yavapai Counties answered.  All but Apache answered affirmatively.  Coconino commented that allowing whatever isn't prohibited "would be dangerous and would probably make your ordinance voluminous as you try to list every possible use."  Maricopa commented that allowing whatever isn't prohibited "is really dangerous language.  How many codes prohibit Aqua-culture or Sub-atomic particle accelerators or escargot rehabilitation centers or...or...or."

b.  The five other counties with an ordinance like Regulation 307 seem locked into regulations that specify methods of conduct or construction.  However, regulations can be shorter and clearer if they specify required outcomes, not methods.  For instance, to prevent loud noises, you can prohibit steel mills, sawmills, stamping mills, auto body shops, tire shops, band practice, and so on, until your list is pages long; that's how Cochise County regulations are generally written.  Or, you can simply prohibit any activity whose outcome is noise louder than a stated volume at a stated distance.  Such "outcome" regulation is short and understandable, requires you to focus on your real goals, and need not be rewritten whenever a new source of noise is invented.

c.  Another benefit of "outcome" regulation is shown by Maricopa's humorous list of aquaculture, particle accelerator, and escargot rehab center.  Maricopa appears to be under the influence of a "knee-jerk" reflex in favor of regulating anything novel, without thinking much about whether regulation is really necessary.  That's odd, because Americans, especially Westerners, used to be known for not restricting liberty casually.  As to the escargot rehab center in particular, anti-noise and anti-cruelty laws already exist, so neighbors need not fear being awakened at night by wounded snails screaming as they do foot-stretching exercises. 

d.  Apache County, however, had slightly weaker language:  "All other uses other than those permitted within zones as adopted by the Board of Supervisors shall require a Conditional Use Permit," whose issuance depends on a use's effects, not on how the effects are produced.  Anderson has stated that the Apache County system "might be adapted to Cochise County without requiring an overall update."  This seems acceptable pending a thorough revision.

2.  "The County Attorney agrees."  The County Attorney's imprimatur means little, because "going along to get along" has been known to trump the law and Constitution in that office.

3.  "To delete this language opens the door to allowing new uses that are not yet invented and would have to be allowed even if objectionable."  That comment returns us to the discussion over "outcome" versus "method" regulation.  Here's another example of "outcome" regulation:  if your goal is fences strong enough not to blow over in high winds, then why not just say how strong a wind fences must withstand?  Why list every possible material or technique for building a fence?

4.  "If a use is not listed as permitted or can not be interpreted to reasonably fit under a generic category, due process is nevertheless afforded because the interpretation can be appealed to the Board of Adjustment or a Zoning Regulation amendment can be processed."  That's wrong.  Certainly a process exists for appeals or amendments, but process can exist without being "due."  Due process doesn't exist when regulations are so broad that citizens can't conduct harmless activity without government intervention that amounts to harassment and causes long delays.  Also, the "process" costs hundreds of dollars, out of reach for many citizens.

5.  "It is very rare that a use does not fit under an existing land use category."  That argument cuts both ways.  A rare use will remain rare if Regulation 307 is deleted or reversed.

C.  Little zoning regulation is needed in rural areas.

1.  City dwellers need stricter regulations because they have smaller parcels with structures closer together.  As an area becomes citified, its zoning classification changes, and it usually gets incorporated into a neighboring city with its own P&Z department and regulations.  Why should the supervisors put rural parts of the county under city-style regulations?

2.  The definition of "urban" and "rural" should not depend on lot size.  For instance, areas like McNeal are just "wide spots in the road" filled with people living a rural life, and McNeal is filled with homes on small lots.

3.  Why should the supervisors allow city-style regulations to be enforced aggressively in rural areas?  If neighbors have a problem with a neighbor's conduct on his rural land, neighbors will generally talk to each other about it -- and if the offender is a jerk, the neighbors may, after making that determination, contact the county.  Planning Department employees shouldn't be bullies who drive around and look for problems -- as on EE Ranch Road.

D.  Instead of constantly "reinventing the wheel" for definitions, the county should Arizona's statutory definitions if possible.  Adoption is often achieved by language like "XX has the meaning stated in STATE STATUTE YY, as presently enacted or hereafter modified."  This may require a person to read state laws, but it also reduces conflict between state laws and county regulations.

E.  Regulations should be clear and easy to understand, unlike the following two examples taken from the present regulations.

1.  Here's how "Staff" defines RV in Regulation 203:
"Recreational Vehicle - A vehicular type unit which is:
"a. A portable camping trailer mounted on wheels and constructed with collapsible partial sidewalls which fold for towing by another vehicle and unfold for camping.
"b. A motor home designed to provide temporary living quarters for recreational, camping, or travel use and built on or permanently attached to a self-propelled motor vehicle chassis, or on a chassis cab or van that is an integral part of the vehicle.
"c. A park trailer built on a single chassis, mounted on wheels, and designed to be connected to utilities necessary for operation of installed fixtures and appliances, and has a gross trailer area of not less than 320 square feet not more than 400 square feet when it is set up, except that it does not include fifth wheel trailers.
"d. A travel trailer mounted on wheels, designed to provide temporary living quarters for recreational, camping or travel use, of a size or weight that may or may not require special highway movement permits when towed by a motorized vehicle and has a trailer area of less than 320 square feet. This type includes fifth wheel trailers. Should a unit require a size or weight permit, it shall be manufactured to the standards for park trailers in A119.5 of the American National Standards Institute Code.
"e. A portable truck camper constructed to provide temporary living quarters for recreational, travel or camping use and consisting of a roof, floor and sides designed to be loaded onto and unloaded from the bed of a pickup truck.
"f. Park models."

a.  Note that (f) allows "Park models," while (c) allows some types of "park trailer," so the two paragraphs don't hang together.

b.  Section (c) excludes "5th wheels" entirely, while (d) covers "5th wheels" only under 320 square feet.  But federal law allows "5th wheels" up to 400 square feet, so "5th wheels" from 320 to 400 square feet aren't covered in the regulations, unless (d) is construed to mean all "5th wheels" even if they exceed (d)'s requirement of an area less than 320 square feet.

2.  Regulation 604.03 includes "The minimum setback shall be measured from the closest point on the property line or edge of road travelway to the structure/use whichever is closer."  Is that word salad trying to say that the "the smallest measured distance from either the property line or the edge of road travelway, to either the permitted structure or permitted use, shall be at least the minimum required setback"?  (And whatever the writer meant, why does the Department care, unless a neighbor objects?)

F.  Regulations should be written so that much less government time need be spent on considering exceptions to them.

G.  During the citizen input meetings, many concerns were raised that didn't fit into the Department's framework.  Such concerns include:

1.  Will the supervisors try to stop the massive highway coming north from Mexico, that will ruin the county and take resources and water?  There is not enough water to support such a plan.  We should be worried about protecting open spaces.  If you bring in more people, they need to eat and sleep, which means more hotels, restaurants, and gas stations.  All this takes water and energy, and adds to pollution.  Maybe the supervisors should consider putting up a No Vacancy sign.

2.  Will the supervisors consider limiting the land a tax-exempt entity can have?  They cost the county many expenses (sheriff, road maintenance, employee salaries, education, other required services, even supervisor salaries) paid from taxes.

3.  Where is the water for 100 years around Douglas?  If we are out of water, why are we still building homes?  If we wouldn't make plans for game preserves to dry up after 100 years, why are we planning such a short lifetime for our "people areas"?


IV.  Conclusion

Many citizens agree that the zoning regulations need a major overhaul because they are much too intrusive and oppressive, and that what may be appropriate regulation in a city is misplaced in more rural areas.  Planning Department head Anderson said a major revision "is not possible at this time," and that Board of Supervisor and Commission support would be necessary for such a project.  The supervisors should make this thorough revision a high priority.