HazOrdWriteupForUpdate

HAZARD ABATEMENT ORDINANCE -- CCIPRA writeup for update

CCIPRA is the Cochise County Individual and Property Rights Association. Its website is at
    http://littlebigdog.net/ccipra.htm
This writeup is substantially what CCIPRA wrote for the county Board Of Supervisors ("BOS") January 4, 2011, work session on the draft Hazard Abatement Ordinance ("HAO").

Before going to the substance of the writeup, here's a short description of the January 4 work session. For over two years, the county Planning Department worked desultorily to rewrite the HAO. On December 8, 2010, the Department took a draft to the county Planning & Zoning Commission; the Commission's job was to review the draft and make recommendations to the BOS about it. But the Commission didn't do its job. The Chairman told the Commissioners "I feel that the best action for this Commission to take is to forward to the Board Of Supervisors and to let them dig into the minor details ... rather than to go through each one of these various items, let's get it to the Board and let them and the staff deal with it at that level." A recording of the statement is at
    http://littlebigdog.net/PNZBasnarDecember082010.mp3

The Commission did as asked. The BOS discussion was set for December 21, but on that date the BOS tabled the discussion for a work session on January 4, 2011. Evidently Planning Department staff met individually with Supervisors before the meeting, and when the meeting came, the Department announced what it was willing to do, and the open discussion at the work session avoided most of the problems that were known to exist with the draft HAO. Amazingly, when Supervisor Searle wanted to work on the details of one problematic definition, Supervisor English said that would be "getting way too deep in this." That is, the Commission didn't discuss details, but asked the BOS to discuss them; and at least one Supervisor was unwilling to discuss them either. A few changes were directed to be made, and the BOS work session closed with the expectation that the BOS would approve those changes at a regular meeting on February 8, 2011.

Here are the changes that the BOS directed the Planning Department to work on:
    In regulation D.4, the phrase "to which ... attached" is to be stricken, so the regulation will read "A statement that rubbish, trash, weeds, filth, debris or dilapidated building materials constituting a public nuisance must be disposed of at an appropriate waste collection facility or by other legal means and that an affidavit attesting to the fact that said material was disposed of in a legal manner is to be submitted to the Hazard Abatement Officer prior to a determination of compliance with the Notice and Order to Abate."
    As to 15-day time limits, there was some feeling that they should all be replaced by 30-day limits. It's unclear what the Planning Department will produce on this issue for the meeting on February 8.
    As to having the BOS itself hear appeals from citizens about Hazard Abatement orders, Supervisor Searle wanted the BOS to have the ability to appoint a hearing officer, and Supervisor English wanted the BOS to hear appeals "if at all possible." It's unclear what the Planning Department will produce on this issue for the February 8 meeting.

The result is that Cochise County is going to end up with an ordinance which is not just badly written, but in some places is positively silly. The Supervisors should be embarrassed by what they plan to approve.

Now, to the substance of the writeup that CCIPRA gave the BOS for the work session on January 4, 2011; with added notes and annotations about changes that the BOS told the Department to make before bringing the draft HAO to the meeting on February 8.

SECTION I. THE PROCESS OF CHANGING THE HAO

The existing HAO was passed in 1987. Its text is online at
   http://littlebigdog.net/HAO1987.htm
The Planning Department's "packet" for January 4 is online at
  http://cochise.az.gov/uploadedFiles/Board_of_Supervisors/1.4.11_WS_Hazard%20Abatement%20Ordinance.pdf

On July 1, 2008, the BOS held a work session "to discuss the hazard abatement ordinance, priorities for use of the abatement funds and discussion on the hazard abatement lien process." The existing HAO lets the County, when it cleans up trash on private property, create and enforce a lien for the cost of cleanup. A person who was at the meeting reports that the main focus was on enforcing liens. However, the draft rewrites since then have been much broader than the BOS apparently contemplated in 2008.

In 2009, the rewrites basically rearranged the existing HAO; see
   http://littlebigdog.net/hazardfinal.htm
But in 2010, that framework was abandoned for a completely new rewrite. During the rewrites, the Department didn't get much oversight. A Commission discussion was set for March 2009, but was tabled to June, then August, & December, & March 2010, & April, & finally to May -- but then had only a few questions by three Commissioners, with no general discussion or public input. The minutes are at
  http://cochise.az.gov/uploadedFiles/Planning_and_Zoning/Agendas_and_Meeting_Minutes/PNZ05122010%281%29.pdf
At the Commission's December 8, 2010, meeting, Chairman Basnar asked the Commission to forward the draft HAO to the BOS without even discussing it: "the best action for this Commission to take is to forward to the Board Of Supervisors and to let them dig into the minor details ... rather than to go through each one of these various items, let's get it to the Board and let them and the staff deal with it at that level." An audio recording is at
   http://littlebigdog.net/PNZBasnarDecember082010.mp3
The Commission voted 7-0 as Basnar requested. This review is long because it includes the entire text of the HAO, and adds discussions of two years of draft rewrites.

CCIPRA and the Department met twice in 2010. In July, Benny Young raised the possibility of great cooperation, but after he resigned the Department did not follow that course. In December a meeting led to a few changes in what the Commission saw on December 8, which is, except for a small correction in section numbers, what the BOS will see on January 4. The text of the draft is at
   http://littlebigdog.net/HAOtoBOS.htm

Section II of this input summarizes major concerns already stated by the Supervisors and others; Section III looks briefly at the draft definitions; Section IV looks extensively at draft regulations; and Section V looks briefly at the two "housecleaning" regulations.

SECTION II. SUMMARIES OF MAJOR CONCERNS

A.   AN INAPPROPRIATE SUDDEN CHANGE: Previous drafts gave the BOS discretion to approve or modify costs assessed by a Hazard Abatement Officer, but the December 2010 draft would take away that discretion, and require the BOS to rubber-stamp the assessment of costs. CCIPRA opposes this. See the discussion of draft regulation J, in section IV below (on p. 10 of the printed version of this input).

B.   HEARINGS: Draft regulations E and K would let the BOS delegate hearings to an appointee, and remove many existing specific guarantees of due process. CCIPRA believes the Board should not delegate hearings, nor omit specific guarantees of due process. See the discussion of draft regulations E and K, in section IV below (on pp. 7-8 and 10-11 of the printed version).

C.   MAKING THE ORDINANCE FIT RURAL AREAS: As the BOS itself has noted, state statutes are not always a good fit for rural areas. See the discussion of draft regulation A, in section IV below (on pp. 5-6 of the printed version).

D.   TIME: All three Supervisors have wondered whether citizens should be allowed only 15 days to take various procedural steps. The Department says it wants uniformity; as Supervisor English has pointed out, a period can be uniform without being 15 days. CCIPRA wouldn't object to the same period for everyone, citizens and County alike: 30 calendar days.
   CCIPRA also recommends that days be counted by the same rules that courts use, and which are guaranteed to deliver due process.
   CCIPRA intends these comments to cover every draft regulation with time limits in the HAO. For brevity, CCIPRA doesn't repeat this comment in every section where the issue occurs.

E.   ILLEGAL FEES: May amount to "taxation without government." See the discussion of draft regulation F, in section IV below (on pp. 8-9 of the printed version).

F.   COMMENTARIES: The existing HAO includes Commentaries which offer guidance in enforcing regulations. Such guidance is important. For instance, the Commentary to existing regulation 407 includes "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.... 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." Supervisor Searle has wished for the return of the Commentaries. CCIPRA agrees.

G.   GOVERNANCE OF THE PROCESS: The BOS would be much more informed if official progress reports had been delivered during a drafting process that lasted over two years.

SECTION III. DRAFT DEFINITIONS

CCIPRA has placed *asterisks* around text that is boldfaced in the original. CCIPRA's discussions of individual points are placed within <brackets>.

As used herein, bold-faced terms shall have the following meaning:

   1.   *"Board"* means the Cochise County Board of Supervisors.

   2.   *"Building"* means any real property structure, movable or immovable, permanent or temporary, vacant or occupied, used (or of a type customarily used) for human lodging or business purposes, or where livestock, produce, or personal or business property is located, stored or used.

   3.   *"Contiguous Sidewalks, Streets and Alleys"* means 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.

       <START CCIPRA NOTE
        This definition does not appear to come from a state statute, but from local draftsmanship. It is problematic for rural areas. See CCIPRA NOTE 3 in the discussion of draft regulation A, in section IV below.
        END CCIPRA NOTE>

   4.   *"County"* means the unincorporated areas of Cochise County.

   5.   *"Days"* means calendar days unless otherwise noted.

       <START CCIPRA NOTE
       "Calendar days" vs. "workdays" was discussed at some length; CCIPRA believes that workdays should be used when a notice requires action in 15 days or less, while calendar days is sufficient for longer periods of time. If time periods are made uniform at 30 days, the issue disappears.
       END CCIPRA NOTE>

   6.   *"Dilapidated Building"* means any real property structure that is in such disrepair or is damaged to the extent that its strength or stability is substantially less than a new building or it is likely to burn or collapse and its condition endangers the life, health, safety, or property of the public.

       <START CCIPRA NOTE
       This definition of "dilapidated" is problematic for rural properties. See CCIPRA NOTE 2 in the discussion of draft regulations A, in section IV below.
       END CCIPRA NOTE>

   7.   *"Grounds"* means any private or public land, vacant or improved.

   8.   *"Hazard Abatement Officer"* means the County Zoning Inspector or duly authorized representative to discharge the duties of the County pursuant to this ordinance unless otherwise expressly provided herein.

   9.   *"Lessee"* means a person who has the right to possess real property pursuant to a lease, rental agreement, or similar instrument.

   10.   *"Lots"* means any plot or quantity of land, vacant or improved, private or public, as surveyed, platted or apportioned for sale or any other purpose.

   11.   *"Occupant"* means a person who has the actual use, possession or control of real property. The 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. *[A.R.S. § 11-268.I]*

   12.   *"Owner"* means 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 installment sales contract, contract for deed or similar instrument.

   13.   *"Person"* means 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.

   14.   *"Public nuisance"* means a dilapidated building or an accumulation of rubbish, trash, weeds, filth or debris that constitutes a hazard to the public health and safety as determined by the Hazard Abatement Officer.

       <START CCIPRA NOTE
       Definition 14 should close with the additional phrase "or a hearing if one is requested." This will better inform citizens about their right to a hearing.
       END CCIPRA NOTE>

   15.   *"Real Property"* means buildings, grounds, or lots, as well as contiguous sidewalks, streets, and alleys, located in the County.

       <START CCIPRA NOTE
       As noted for definition 3 above, "contiguous sidewalks, streets, and alleys" is a problematic concept in rural areas.
       END CCIPRA NOTE>

SECTION IV. DRAFT REGULATIONS

Almost all of the CCIPRA NOTES in the following discussions represent an issue that CCIPRA has taken to the Department.

All the regulations discussed in this section are in Part II of the draft HAO, so prefixing every regulation with "II" is unnecessary "static," and these discussions refer, for instance, simply to regulation A.1, not II.A.1.

*A.   Violation.* A person, firm or corporation shall have created a public nuisance and committed a violation of this ordinance if such person, firm or corporation without lawful authority, and in a manner that constitutes a hazard to public health and safety:

   1.   Places, permits, or provides for rubbish, trash, weeds, filth, debris or dilapidated buildings to remain upon property located in the County of which they are owner, lessee, or occupant. *[A.R.S. § 11-268.A]*

   2.   Places, permits, or provides for rubbish, trash, weeds, filth, debris or dilapidated buildings to remain upon contiguous sidewalks, streets and alleys in the County which are dedicated and open to the public. *[A.R.S. § 11-268.A]*

   3.   Places, permits, or provides for rubbish, trash, weeds, filth, debris or dilapidated buildings to remain upon any other private or public property in the County not owned or under the control of the person, firm or corporation. *[A.R.S. § 11-268.A.3]*

       <START CCIPRA NOTE 1
       ARS 11-268A, cited in draft regulations A.1, A.2 and A.3, lets the County require people to remove, but do nothing more to, trash: "The board of supervisors ... shall compel the owner, lessee or occupant ... to remove rubbish ...." Draft regulations A.1, A.2, and A.3, in prohibiting "Places, permits, or provides for" trash, exceed the scope of ARS 11-268A.
       Draft regulation A.3 goes even further, in not just prohibiting a person himself from placing trash on property owned by another, but also prohibiting a person from permitting another to place trash on property owned by a third person, and even from permitting trash to remain on property owned by anyone. Everyone would be responsible for all trash on everyone's property. That far exceeds what ARS 11-268A3 allows. Draft regulation A.3 far exceeds the scope of ARS 11-268A.
       END CCIPRA NOTE 1>

       <START CCIPRA NOTE 2
       The draft HAO's definition of "Dilapidated buildings" copies ARS 11-268J's definition, but as Supervisor Searle has noted, that definition isn't a good fit for rural areas with many large acreages on which old buildings may be run down but are still useable, and pose no danger to the public.
       The County cannot contradict a statute, but it could define "disrepair" and "damaged" so as to keep old buildings from being easily labeled as "dilapidated," or it might state that buildings on large acreages (the size would have to be determined), or a large distance (which would have to be determined) inside the lot line, are presumed not to endanger the public. Supervisor English has touched on this possibility.
       >END CCIPRA NOTE 2

       <START CCIPRA NOTE 3
       In Cochise County, many transients dump incredibly obnoxious trash -- cigarette butts, empty oil containers, used baby diapers -- on remote roads. This is not the fault of adjoining property owners, who should not have to pay the County for cleaning up a mess they are not responsible for creating.
       More work is needed to make the HAO better suit Cochise County's rural areas. For instance, because "sidewalks, streets, and alleys" are associated with cities, while "roads" and "highways" tend to be found away from cities, the HAO might define "sidewalks, streets, and alleys" to exclude roads and highways more than, say, 1 mile from city limits. That would comply with the statute but also be sensitive to rural areas.
       Also, "permitting" invites confrontations, possibly violent, between property owners and people dumping trash not on the owners' property.
       END CCIPRA NOTE 3>

       <START CCIPRA NOTE 4
       The draft doesn't address how the County may gain entry onto property. The existing HAO says "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." Actually, probable is required; ARS 13-3913 says "No search warrant shall be issued except on probable cause ...." Probable cause is much more than "reasonable" cause; it's reasonable to believe that you might win the lottery, but that doesn't make it probable. The "2009 series" of drafts eventually adopted proper "probable cause" wording, and that wording should remain.
       END CCIPRA NOTE 4>

*B.   Duty to remove.* A person, firm or corporation shall remove or otherwise abate a public nuisance as defined herein in thirty (30) days after mailing or personal service of a Notice and Order to Abate as provided herein. *[A.R.S. § 11-268.A.1]*

*C.   Notice and Order to Abate.* Upon finding probable cause that a violation of this ordinance has occurred, the Hazard Abatement Officer shall issue a notice in writing which shall be served in person or by certified mail upon the owner, any lienholder, occupant or lessee at their last known address or at the address on file in the County Treasurer's Office to which the most recent tax bill was mailed. If the owner does not reside on the property, a copy of the notice shall be served upon the owner in person or by certified mail to the owner's last known address. Failure by any party to receive the notice shall not be a bar to abatement, assessment of costs or lien of assessment pursuant to this Ordinance. *[A.R.S. § 11-268.A.1]*

   <START CCIPRA NOTE
   The last sentence, allowing assessments without notice, should be stricken. The cited statute, ARS 11-268A1, says nothing about assessments without notice. It says, in full: "The notice shall be given not less than thirty days before the day set for compliance and shall include the estimated cost to the county for the removal if the owner, occupant or lessee does not comply. The notice shall be either personally served or mailed by certified mail to the owner, occupant or lessee at his last known address, 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." The statutory citation might mislead the BOS.
   END CCIPRA NOTE>

*D.   Notice and Order.* The Notice and Order to Abate shall include the following:

   1.   The street address, parcel number and a legal description sufficient for identification of the premises on which the alleged violation occurred.

   2.   A statement that the Hazard Abatement Officer has determined that there is a probable cause that a violation of this ordinance has occurred on the premises identified in the notice.

   3.   An order that the owner, occupant or lessee shall have thirty (30) days from the date of mailing or personal service of the order to remove any rubbish, trash, weeds, filth, debris or dilapidated buildings upon the property or upon contiguous sidewalks, streets or alleys.

   4.   A statement that rubbish, trash, weeds, filth, debris or dilapidated building materials constituting a public nuisance must be disposed of at an appropriate waste collection facility or by other legal means and that an affidavit attesting to the fact that said material was disposed of in a legal manner, to which a tipping fee receipt or other evidence of legal disposal may be attached, is to be submitted to the Hazard Abatement Officer prior to a determination of compliance with the Notice and Order to Abate.

       <START CCIPRA NOTE
       Allowing an affidavit is better than an earlier draft "that a tipping fee receipt or other evidence of legal disposal is to be submitted to the Hazard Abatement Officer prior to a determination of compliance with the Notice and Order to Abate." It's good to acknowledge the fact that rural people often dispose of trash in ways which do not generate outside paperwork.
       END CCIPRA NOTE>

   5.   A statement that the County may cause the violation to be abated if the owner, occupant or lessee fails to comply with the order within the specified compliance period.

   6.   An estimate of the cost of removal or abatement by the County, including incidental costs, to be based on an estimate provided by a qualified contractor or by the Hazard Abatement Officer. *[A.R.S. § 11-268.A.1]*

   7.   A statement that the owner, occupant or lessee shall have fifteen (15) days from the post mark date of mailing or personal service of the Notice and Order to Abate to appeal the issuance of the notice to the Board of Supervisors and that failure to appeal will constitute waiver of all rights to an administrative hearing and determination of the matter.

   8.   A statement that a party who places any rubbish, trash, filth or debris upon any private or public property located in the unincorporated area of the county that is not owned or controlled by that party without authorized permission is guilty of a Class 1 misdemeanor and may be subject to criminal penalties in addition to the cost of abatement. *[A.R.S. § 11-268.A.3]*

       <START CCIPRA NOTE
       This section is similar to the draft "Additional Penalties" language, discussed in Section V below.
       END CCIPRA NOTE>

*E.   Appeal of Notice and Order to Abate.* Any person receiving a Notice and Order to Abate may appeal to the Board of Supervisors as follows *[A.R.S. § 11-268.A.2]*:

   *1.   Notice of Appeal.* A written Notice of Appeal shall be filed with the Clerk of the Board within fifteen (15) days after the Notice and Order to Abate was mailed or personally served. The date of receipt by the Board shall be the date of filing.

   *2.   Contents of Notice of Appeal.* The Notice of Appeal shall state in reasonable detail why the appellants should not be required to comply with the Notice and Order to Abate.

   *3.   Hearing on Appeal.* Upon receipt of the Notice of Appeal, the Board shall, within a reasonable time, place the matter on the agenda at a regular meeting or, if the Board has appointed a hearing officer pursuant to Paragraph II.P, refer the appeal to the hearing officer. The Hazard Abatement Officer shall appear and present evidence of the existence of the Public Nuisance. The appellant may present evidence controverting the existence of the Public Nuisance. The hearing shall be informal and without regard to the rules of procedure or evidence governing court proceedings. The Board shall decide the appeal. The appellant may appeal the Board's decision to Superior Court, as provided by statute.

       <START CCIPRA NOTE 1
       CCIPRA strongly objects to letting the BOS delegate its duty to conduct a hearing, as imposed by ARS 11-268A2. Since 1987, the existing HAO has required the BOS to conduct the hearing, and the benefits of having the BOS conduct the hearing are described in no uncertain terms, as protection for citizens. This argument is made more fully in the discussion of draft regulation K below.
       END CCIPRA NOTE 1>

       <START CCIPRA NOTE 2
       Existing regulation 504 has a Commentary including "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." The "2009 series" of drafts eliminated that commentary, and CCIPRA objected strenuously, and the Commentary was restored, slightly rewritten, in the December 2009 draft. Now the Commentary has disappeared again. It should be restored.
       Likewise, specific protections of citizens' rights are provided in existing regulations 602, 603, and 604. There is no good reason for omitting such specific language, and there is a good deal to be said for keeping specific protections of due process.
       END CCIPRA NOTE 2>

       <START CCIPRA NOTE 3
       CCIPRA appreciates the addition of the last sentence, clarifying that a Board decision may be appealed to court.
       END CCIPRA NOTE 3>

   *4.   Extension of Time for Compliance.* If the Board's decision is adverse to the appellant, the date of compliance set forth in the Notice and Order to Abate shall be extended until thirty (30) days from the date of the Board's decision.

*F.   Removal by Board.* If the owner, lessee or occupant fails to remove or otherwise abate the Public Nuisance in thirty (30) days of mailing or personal service of the Notice and Order to Abate (or such extension thereof as may be granted in writing by the Board), the Board or its designee may, at the expense of the owner, lessee or occupant, order removal or abatement of the Public Nuisance or cause it to be removed or abated; provided, however, that if such removal or abatement is not undertaken within one hundred and eighty (180) days after the right to do so first accrues, a new Notice and Order to Abate shall be served as provided in Paragraph II.C. *[A.R.S. § 11-268.B]*

   1.   *Cost of Removal.* The costs assessed for removal or abatement shall not exceed the actual costs and incidental expenses thereof. If the removal or abatement is to be performed by an outside contractor, in retaining a contractor the Hazard Abatement Officer shall comply with the County Procurement policy. In the alternative, removal or abatement may be performed by a State Prison work crew or Cochise County personnel if it is determined by the Hazard Abatement Officer to be feasible, in which case costs will be the actual cost to the County including the time of County personnel assessed at applicable rates. *[A.R.S. § 11-268.C]*

       <START CCIPRA NOTE
       As to costs, the draft has already toned down its language several times. Existing regulation 403 includes "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." The March 2009 draft increased the surcharge to 10%, and added a charge for "anticipated legal costs." CCIPRA is glad that those illegal charges have been abandoned in the present draft, but CCIPRA still opposes charging "incidental costs" to cover County employees' wages, when the County doesn't pay any more wages because of anything the citizen did. If citizens are taxed to pay for wages no matter what employees do, and citizens must pay again to have employees actually do anything, then citizens are being charged twice for being governed once.
       END CCIPRA NOTE>

   2.   *Historical Review.* Before the removal of a dilapidated building, the Board shall consult with the state historic preservation officer to determine if the building may be of historical value. *[A.R.S. § 11-268.G]*

   3.   *Removal from Tax Rolls.* Upon the removal of a dilapidated building, the County Assessor shall adjust the valuation of the Real Property on the property assessment tax roll from the date of removal. *[A.R.S. § 11-268.H]*

*G.   Assessment.* Upon the removal or abatement of Public Nuisance as provided in Paragraph II.F, the actual cost of removal or abatement, together with the actual cost of any additional inspections and other incidental costs, shall be an Assessment against the Real Property on which the Public Nuisance was located. *[A.R.S. § 11-268.C]*

*H.   Notice of Assessment.* A written Notice of Assessment shall be served in the same manner as the Notice and Order to Abate. The Notice of Assessment shall list the common address, legal description and tax parcel number of the property. The Notice of Assessment shall set forth the facts supporting it as well as an itemized listing of the actual cost of removal or abatement, the actual costs of any additional inspections and other incidental costs. The Notice shall state that the entire cost is due and payable in full not later than thirty (30) days from the date of issuance of the Notice and that the assessment will become delinquent as of that date. The Notice shall be signed by the Hazard Abatement Officer. The Notice shall also contain the following statement in bold face print:
   *NOTICE: THIS NOTICE OF ASSESSMENT PURSUANT TO A.R.S. § 11-268 SHALL CONSTITUTE A LIEN UPON THE PROPERTY DESCRIBED IN THE NOTICE IN FAVOR OF COCHISE COUNTY. THE COUNTY MAY TAKE LEGAL ACTION TO FORCECLOSE THE LIEN AND SELL THE PROPERTY DESCRIBED TO RECOVER THE COSTS STATED IN THE NOTICE OF ASSESSMENT.*
       <N.B. THE TYPO "FORCECLOSE" SHOULD BE FIXED AT LAST.>
The Notice of Assessment shall indicate that the owner, lessee or occupant shall have fifteen (15) days from the post marked date of the mailing or personal service of the Notice of Assessment to appeal the amount of the assessment imposed by the County.

*I.   Appeal of Notice of Assessment.* All appeals of assessments shall be in writing and shall specify the grounds for appeal of the assessment. The date of receipt of the Notice of Appeal by the Board shall be the date of filing. No appeals of violations shall be heard upon appeal of an assessment. *[A.R.S. § 11-268.A.2]*

*J.   Report of Assessment.* If an appeal of the Notice of Assessment is not timely filed, the Hazard Abatement Officer shall prepare a Report of Assessment for review by the Board of Supervisors. The Report shall list the common address, legal description and tax parcel of the property. The Report of Assessment shall set forth the facts supporting it as well as an itemized listing of the actual cost of removal or abatement, the actual cost of any additional inspections and other incidental costs. Upon receipt of the Report by the Board, the Chairman shall sign it, with authority to do so hereby delegated by the Board to the Chairman. Board approval of the Report is not required. Thereafter, upon recordation pursuant to Paragraph II.L, the assessment shall become a lien of assessment against the property.

   <START CCIPRA NOTE
   THIS IS A DRASTIC AND UNWELCOME CHANGE.
   Previous drafts of regulation J read "If an appeal of the Notice of Assessment is not timely filed, the Hazard Abatement Officer shall prepare a Report of Assessment for consideration by the Board of Supervisors.... Upon acceptance of the Report by the Board, it shall be signed by the Chairman ...."
   But suddenly, in December 2010, the draft changed so that the BOS could "review," but not consider, the employee's filing; and now the Chairman must sign the report whether or not the BOS would wish to accept it. It's not clear that the BOS should ever agree to rubber-stamp its employees' decisions. The BOS would become the servant of its employee.
   END CCIPRA NOTE>

*K.   Hearing on Appeal.* Upon receipt of the Notice of Appeal of Assessment, the Board shall, within a reasonable time, place the matter on the agenda at a regular meeting or, if the Board has appointed a hearing officer pursuant to Paragraph II.P of this ordinance, refer the appeal to the hearing officer. Written notice of the hearing shall be provided to the Hazard Abatement Officer, to other appropriate County departments and to the Appellant. The Hazard Abatement Officer shall appear and present the facts supporting the assessment as well as an itemized listing of the actual cost of removal or abatement, the costs of any additional inspections and other incidental costs. The Appellant may present evidence controverting the imposition of the assessment. The Board shall determine whether the assessment was made in accordance with the provisions of this ordinance and applicable state statutes, and whether the amount of the assessment is sufficient to cover the actual costs of abatement and related activities. After hearing all of the evidence presented, or after reviewing recommendations made by its hearing officer, the Board shall issue its findings in writing upholding or modifying the amount of the assessment. The decision of the Board of Supervisors shall be final.

   <START CCIPRA NOTE 1
   CCIPRA strongly objects to the BOS delegating its duty to hear appeals. ARS 11-268A3 says the "ordinance shall require and include ... Provisions for appeal to the board of supervisors on both the notice and the assessments." The statute does not contemplate the BOS delegating hearings to an appointee of unknown qualifications, training, history and personality.
    ADDED ON JANUARY 20: When the legislature wants to let the BOS delegate hearings to an appointee, it knows how. In the animal control statutes, for instance, ARS 11-2006 says "A. A county board of supervisors that establishes a civil penalty for violating an animal statute or ordinance may appoint one or more hearing officers to hear and determine such cases. The board may appoint a county employee to serve as hearing officer in addition to his other work." END OF ADDED ON JANUARY 20
   It's the county that profits from any fees and fines; all the Supervisors should do their duty. The BOS represents the entire county, and is accountable to the voters. A Hearing Officer is appointed, and can dodge the consequences of being unfair; the Supervisors shouldn't try to dodge the risk of making decisions.
   Even if the ordinance did let the BOS delegate its duty, the vote to do so should have to be unanimous. If only one Supervisor wants to hear a case as provided in ARS 11-268, the other two shouldn't be able to prevent him or her.
   END CCIPRA NOTE 1>

   <START CCIPRA NOTE 2
   The draft does not state any standards for BOS review of the proceedings if a hearing officer is used, nor for the BOS's own conduct of a hearing. Existing regulation 605(a) says "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." That's necessary, but not sufficient; the HAO should say that "Where a contested case is heard before the Board, no member thereof who did not attend the entire hearing shall vote on or take part in the decision." Supervisors could also be required to certify to having attended diligently to the evidence.
   The draft should also clarify the job of an appellate hearing. At a 2005 Hazard Abatement appeal to the BOS, "Chairman Call asked if the Board could decide the issue was not moot and require further clean up. Mr. Hanson stated that that would not be an option." For the minutes, see Item 16 at
        http://www.co.cochise.az.us/BOS/MeetingMinutes/09-13-05%20Min.htm
The point is that the HAO leaves confusion about the difference between an initial hearing and an appeal. It should be rewritten so that no confusion is possible.
   END CCIPRA NOTE 2>

*L.   Recordation.* If the owner, lessee or occupant fails to pay the assessment within thirty (30) days after receipt of the Notice of Assessment (or any extension as may have been granted in writing by the County Zoning Inspector or his designee), and fails to timely appeal the assessment, that assessment shall be delinquent and shall be recorded in the office of the Cochise County Recorder, upon the Board Chairman signing a Report of Assessment pursuant to Paragraph II.J. If a Notice of Assessment is appealed to the Board and the assessment is sustained in whole or in part in a written decision by the Board, and the owner, lessee or occupant fails to pay the amount of the assessment ordered by the Board within thirty (30) days after receipt of the Board's decision, the assessment shall be delinquent and may be recorded in the office of the Cochise County Recorder. *[A.R.S. § 11-268.D]*

   <START CCIPRA NOTE
   Despite the bracketed citation, 11-268D has no 30-day provision; nothing in it mentions any specific time period. Moreover, ARS 11-268E, followed in draft regulation II.Q, allows payback periods up to 10 years. To cover delinquency, the last sentence of Regulation L might say "If a Notice of Assessment is appealed, and the Board's written decision sustains part or all of the assessment, then the obligation to make payments as stated in Paragraph II.Q shall begin to run upon the appellant's receipt of the written decision; and if the owner, lessee or occupant fails to make a payment pursuant to Paragraph II.Q, the entire unpaid balance shall become delinquent and may be recorded in the office of the Cochise County Recorder."
   END CCIPRA NOTE>

*M.   Lien of Assessment.* The assessment shall be a lien against the real property from and after the date of recordation and shall accrue interest at the statutory judgment rate until paid. The lien of assessment shall be subject to and inferior to all prior recorded mortgages and encumbrances and to such other liens as specifically provided by law. *[A.R.S. § 11-268.D]*

   <START CCIPRA NOTE
   Supervisor Searle has shown concern over "long term loans" under draft regulation Q below. Section M allays Searle's concern, but so does existing regulation 808. In this respect, the draft is no improvement over the existing ordinance.
   END CCIPRA NOTE>

*N.   Foreclosure.* The Board may, but shall not be obligated to, bring an action to enforce the assessment lien in the Cochise County Superior Court at any time after the recordation of the assessment. The recorded assessment is prima facie evidence of the truth of all matters recited therein and of the regularity of all proceedings before the recordation thereof.

*O.   Subsequent Assessments.* A prior assessment shall not constitute a bar to a subsequent assessment or assessments for such purposes and any number of liens may be recorded and may be enforced in the same or separate actions by the County. *[A.R.S. § 11-268.F]*

*P.   Hearing Officer; Appointment and Duties.* In fulfilling the responsibilities required of the Board of Supervisors pursuant to this ordinance, the Board may, by a majority vote of its members, appoint a hearing officer to review appeals of Notices to Abate and/or Notices of Assessment. The hearing officer shall hold hearings and take testimony, make findings and prepare recommendations to be reported for action by the Board of Supervisors.

   <START CCIPRA NOTE
   CCIPRA opposes delegation vehemently; see the discussion of draft regulation K.
   END CCIPRA NOTE>

*Q.   Assessment schedule.* Assessments that are imposed pursuant to this ordinance run against the property until they are paid, and are due and payable in equal annual installments as follows *[A.R.S. § 11-268.E]*:

   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) 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.

SECTION V. HOUSECLEANING SECTIONS

*PART III: ADDITIONAL PENALTIES*

*A.   Classification; Liability.* In addition to the penalties imposed pursuant to the abatement and assessment provisions of this ordinance, any person, firm or corporation placing 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 shall be guilty of a Class 1 misdemeanor and, in addition to any fine which may be imposed for a violation of any provision of this ordinance, shall be liable for all costs which may be assessed pursuant to this ordinance for the removal of the rubbish, trash, filth or debris. *[A.R.S. § 11-268.A.3]*

   <START CCIPRA NOTE
   This is similar to draft regulation D.8. Why repeat it in the HAO? Also, should the penalty for a criminal violation be placed in the criminal ordinances?
   END CCIPRA NOTE>

*PART IV: NON-EXCLUSIVE REMEDY*

The remedies provided for in this ordinance shall be in addition to any and all other remedies, civil or criminal, available to Cochise County pursuant to statute and common law, specifically including those set forth in A.R.S. §§ 13-2908, 36-602 and 49-143.