COMMENTS ON PROPOSED CHANGES TO THE
COCHISE COUNTY ZONING REGULATIONS
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
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
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
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
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
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
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
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"?
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.