Arizona’s Cochise County Planning & Zoning Mismanagement, Silence, Evasion & Chicanery

County P&Z has been attempting to ram through a proposed Sierra Vista Subwatershed Overlay District.  The proposed District is set to come before the County Board Of Supervisors on December 5, at their regular meeting at 9:00. It’s an important issue, especially for Sierra Vista area residents. Some background is set out below. This is a long post; the emails to and from County “public servants” may relieve the boredom.

1. County Mismanagement
– On November 2, Helene Jackson, of McNeal, emailed a letter to every Cochise County Planning & Zoning Commissioner, and to P&Z Department head Judy Anderson. Mrs. Jackson is an officer of CCIPRA, the Cochise County Individual and Property Rights Association.
– P&Z Department staffer Mark Apel had asked for the letter, and promised to respond in detail.

Mrs. Jackson’s letter first talks about procedure, including the following:
– ” . . . At the October 11 meeting, Commission confusion and public uneasiness about the Overlay were apparent. The Department has clearly not explained the Overlay to anyone’s satisfaction; late in the meeting, two Commissioners even said that Docket R-06-06 is only a plan, though Mark Apel says it is not a plan, but is regulatory. One Commissioner suggested delaying a vote until January to get more public input. Yet Anderson has rushed ahead, in violation of her own regulations, and with no plans for more meetings with the public.
– “There is no good cause for such a rush by the Department. The permanent harm caused by ignoring the law must far outweigh any temporary good from any particular regulations. Docket R-06-06 will apply to all development within the SV Subwatershed, and affect the ‘60% of County residents [who] live in this subwatershed’ — good reasons to take the necessary time to let the Commissioners and the public understand the item.”

Then Mrs. Jackson’s letter talks about the substance of 06-06:
– “If and when Docket R-06-06 legally comes before the Commission, several questions should finally be openly and fully answered. Probably every citizen who looks at the measure will have additional questions — it took me several days to read all information about the docket — so my list of questions is not complete. But here are the biggest issues that this one citizen sees:
– “Our Comprehensive Plan says that all subdivisions, multi-family residential, and manufactured home park developments of one acre or larger, ’shall . . . minimize overall water use through . . . drought-tolerant landscaping, low-flow fixtures, re-use, water harvesting, deed restrictions and other water conservation methods.’ Our Subdivision Regulations recommend that water conservation measures be included in CC&Rs (covenants, conditions, and restrictions), shown on plats, and enforced by homeowners’ associations and by the P&Z Department, when it issues permits. Also, our Subdivision Regulations require drought tolerant plants, timers on irrigation, rainwater harvesting and reuse, and minimal turf; and, in common-use buildings, gray water diversion, re-circulating hot water pipes, water efficient washing machines, and hot water pipe insulation. Almost every item on the Overlay docket is already in the regulations, so why is an Overlay District necessary? Minor changes to present regulations would accomplish everything of substance, without imposing another whole set of rules on Cochise County citizens.
– “Our Comprehensive Plan says the County will try to ‘decrease water use through incentives, education, and various zoning mechanisms.’ One citizen asked ‘Can incentives be implemented?’ and suggested reduced building permit fees or reduced taxes. But the proposed Overlay has nothing but regulations — no incentives or education. The County cares enough about education to distribute Water Wise pamphlets, so why is education left out of the Overlay?
– “The Department’s slide show said ‘Gray water plumbing in new residential construction (not applicable to factory-built or MH).’ However, no ‘factory-built or MH’ exception appears anywhere else in the Department’s notices. Would the District exempt these structures from the gray-water plumbing requirement, or not? Shouldn’t the Overlay proposal be clear, here and elsewhere?
– “The District would favor rezoning ‘if a private voluntary transfer of development rights is affected.’ If a developer purchases 1000 acres with no water, and trades it for higher density development where there is water, how does that conserve water?
– “The District would require ‘new Subdivisions to have a water provider in lieu of individual wells.’ However, what is good for water companies is not necessarily good for water conservation. As citizens have often pointed out, using a water company has not been shown to result in less water use. In the public input before October 11, a citizen noted that ‘just the opposite has actually been shown: households on individual wells in RU-4 zoning use far less water, even with large amounts of livestock, than more densely-populated subdivisions served by a water company. Fewer households per acre = less water use. This needs much more discussion before becoming the Law of the Land.’ Another citizen noted that ‘the requirements will use more power, and somewhere in the production of electricity, water is used.’ Another citizen noted that a water company adds millions to development costs, which encourages high-density developments to get enough consumers to repay the costs. When citizens have such concerns, why doesn’t the Department respond, instead of rushing ahead?
– “People must spend a lot of money to meet the requirements proposed by Docket R-06-06. A gray water system costs $500-$2000. Hot water on demand costs $400. Each rain sensor costs $20-$30. A two-stage evaporative cooler costs $3500, about $2500 to $2800 more than a prohibited old-fashioned cooler. The extra requirements add at least $3420 to the cost of a house. It’s understandable that businesses want people to have to buy the extras, but people may not have the money to buy what the businesses want to sell. Don’t the people matter?
– “Another citizen noted that ‘Fort Huachuca will not be closed because of how much water it uses. . . . The fort is much too valuable an asset to the US Govt for something like water usage to be the number one reason for closure. The community and its leaders need accurate and up to date facts before passing judgment on any institution, installation, or individual.’ Is the Department using the “Fort-Huachuca-might-close” threat to impose regulations that will generate more fees and fines – and control – for the Department’s benefit?
– “Our Comprehensive Plan says ‘overlay districts are a way, with community support, to tailor site development standards to meet an area’s needs,’ and ‘Effective public involvement may increase the length of the process but can yield more widely accepted proposals with fewer objections.’ Why should these considerations be forgotten?
– “Please take the time to do this right — to make the Department follow its own Bylaws and regulations, and give the public and the Commission time to get their concerns addressed, before you vote on the Overlay — if it comes to you again legally.”

Even though Apel had promised to respond in detail, he never did. At the P&Z Commission work session at 4:00 on November 8, Apel started to respond to it, but Chairman Martzke stopped him as out of order, and said that responding to the letter would be in order at the regular 5:00 meeting. But at the 5:00 meeting, the letter was never addressed.

2. County Silence, Evasion, And Chicanery

a. P&Z’s first two tries at passing the proposed overlay district:
– The proposed overlay district was initiated by the P&Z Commission. At a Commission meeting on October 11, 2006, it was defeated.
– Immediately after, the P&Z Department put a near-copy of 06-06 on the agenda for the very next Commission meeting. This time, Department head Anderson named herself as applicant. Mrs. Jackson’s husband (not a member of CCIPRA) emailed Anderson on the evening of October 16, and asked for “copies of all your application papers for this item, including especially copies of all papers signed by you, and written instructions which the Department actually distributed to you, or would normally distribute to an applicant. I’d like to pick this up Tuesday morning, either before or after the Board Of Supervisors meeting. Thanks for your cooperation.” Anderson didn’t answer.
– Mr. Jackson also emailed, half an hour later, Anderson’s assistant Mark Apel: “Judy Anderson is the new applicant in R-06-06, the SV Overlay District, and notice has been posted that her application will be heard by the Commission on November 8. What’s the deal here, Mark? R-06-06 was voted on after Department staffers preferred an up-and-down vote to tabling. R-06-06 lost. According to Commission Bylaw III.10.B.2, ‘A tie vote means that the docket fails. The docket dies at this level . . . .’ If R-06-06 is dead, how can it be brought up again as if no vote had been taken? I’ve emailed Judy asking to pick up copies of her application and related papers Tuesday morning. Maybe you can enlighten me more about the procedures involved here. What regulations is Judy proceeding under?”
– The next morning, Apel answered Mr. Jackson’s questions in person. Jackson memorialized the conversation in an email on October 18: “Dear Mark: When we talked after the Board meeting on Tuesday, you responded to the questions in my Monday email . . . by saying that Judy Anderson didn’t make a written application for her revival of R-06-06, but that the decision to proceed was made in a meeting of upper-level Planning & Zoning personnel, so that there was no writing to produce; and that her application was pursuant to the procedure in P&Z Regulation 22. Can you tell me why Judy is able to ignore all of the time requirements, and other requirements, set out in Regulation 2204, and elsewhere in Regulation 22? Can you identify any statute or regulation which grants Judy or the Department special privileges after a docket has been defeated? Also, do you know of any other instance in which the Department or its head has revived a docket item and had it set on the next meeting after the Commission defeated it? If you do, I’d like to see the file in that matter. Thanks.” Apel didn’t answer.

On October 18, Mr. Jackson emailed his concerns to deputy county attorney Britt Hanson, who often is legal advisor to the Board Of Supervisors and the P&Z Commission during their meetings. The email included the following:
– “Dear Britt: . . . You probably know that at the October 11 meeting of the Planning & Zoning Commission, the Commission voted on and defeated the Sierra Vista Subwatershed ‘Overlay District’ item, docket # R-[06-06], for which the Commission was the applicant; and that on October 16, the Planning & Zoning Department filed public legal notice that the same item, docket # R-[06-06], is set for another hearing at the Commission meeting on November 8, with the applicant listed as Judy Anderson, Planning Director.
– “It appears to me that since docket # R-[06-06] was defeated, it is, to use your word, dead, and nothing more can be done with it. If the Department means to revive the item, it should have to start from scratch, like any other failed applicant, yet all the preliminary steps for a normal docket have been completely skipped in this case.
– “Based on the statutes and regulations I’ve seen, the Department is violating the law, very clearly. But you know my high opinion of your legal skills. Can you cite me any legal authority for what the Department is trying to do–or should I conclude that the Department is, to use a term its planners like to use, ‘wildcatting’?
– “Please get back to me as soon as possible with an answer to this email and my earlier email. I really need to hear by Friday; if you need more time for a response, please let me know. Thanks.”

Hanson’s answer arrived at 1:28 pm on October 19: “Dear Mr. Jackson: It appears from your e-mail that you are hoping by legal maneuvers to derail an attempt to save water in the San Pedro sub-watershed. That is your prerogative as an individual citizen. However, our office cannot advise an individual citizen in promoting his/her personal policy agenda. If the water-saving ordinance passes and you challenge it in court, we will be called upon to advise and represent the County on the matter. Accordingly, it would be inappropriate for us to engage in a dialogue with you about legal advice.”

Mr. Jackson replied at 3:12 pm the same day, October 19:
– “Dear Britt: I asked you to cite any legal authority under which the Planning & Zoning Department is reviving a measure which the P&Z Commission just defeated. You have refused, and asserted that I asked for legal advice. But you know that I asked for facts, not advice; and you know that you can give me the facts without adding any advice.
– “The only ‘personal policy agenda’ (to use your words) I see is that Planning & Zoning wants to implement the defeated measure very, very much. Their high motivation is no excuse for you to stand aside as they violate the law.
– “Apparently, you want this stated more clearly: I do NOT want any advice from you about what to do with the information you provide. I just want you to tell me the regulations the Department is operating under in reviving this item.
– “This may help you answer: Mark Apel said the Department was proceeding under P&Z Regulation 2204. If that’s correct, all you have to do is confirm it.
– “I’ll wait until Friday for an answer.
– “Thank you for your consideration.”

Hanson didn’t answer.

Mr. Jackson emailed Anderson again at 6:21 that day, October 19: “Following up my email of Monday Oct 16, the original email I sent to you on Monday is below. Mark Apel spoke with me on Tuesday, & said that you didn’t make a paper application to start the revival of Docket R-06-06. According to Mark, there was a meeting of staff in your office, and you decided to proceed as you have. Mark said you were acting pursuant to P&Z Regulation 2204. I’ve waited all week for any answer from you, but have heard nothing. Would you care to add anything to the information Mark gave me? I can wait until Friday to receive fuller information from you. Thanks for your consideration.” Anderson didn’t answer.

b. P&Z’s third try at passing the proposed overlay district:
– Anderson’s application to revive the defeated Docket R-06-06 was dropped at the November 8 Commission meeting where it was to be discussed, in favor of a third try.
– When Anderson’s application came up on the agenda, Commissioner Basnar cut in and moved to “re-initiate” the item that was defeated in October. Basnar was apparently asking for reconsideration, and that’s how Commission Chairman Martzke treated Basnar’s motion.
– However, a motion to reconsider can only be made by somebody who voted on the winning side. Basnar voted on the losing side before, so could not make a motion to reconsider. Nonetheless, Chairman Martzke accepted the motion, and attorney Hanson said nothing about the error.
– Later in the meeting, when the public was allowed to speak, Mr. Jackson pointed out Basnar’s ineligibility to make his motion. After public input was over, Martzke asked attorney Hanson for advice on Jackson’s questions. Hanson said that P&Z regulations allow a motion to reconsider (which wasn’t in dispute) but Hanson said nothing about who could make such a motion, and Martzke did not require an answer to that question. The Commission proceeded, in violation of its own rules, and ultimately voted again on the item defeated in October, and passed it this time.

At the Board Of Supervisors meeting on November 28, Mr. Jackson summarized events during the Call To The Public:
– “An item on next week’s agenda (the Sierra Vista Subwatershed Overlay District, Docket R-06-06) lost at the Planning & Zoning Commission meeting in October.
– “Then Department head Anderson named herself as applicant for a close copy of 06-06, in an illegal filing which was put on the agenda for the November P&Z meeting. When the November meeting got to that point, Commissioner Basnar moved to, instead, reconsider the October application, which the Commission did instead of considering Anderson’s item.
– “Reconsidering the original 06-06 was improper.
– “For one thing, the motion to reconsider was out of order. Basnar voted on the losing side in October, and a person who votes on the losing side can’t move to reconsider. I noted this at the meeting. Attorney Hanson’s answer avoided this point, and the Commission got lost and kept going in the wrong direction.
– “Also, reconsideration wasn’t on the agenda, so it should have waited for a future meeting. Arizona’s Open Meeting Law forbids discussions by surprise.
– “Also, the agenda’s notice of Anderson’s illegal application wasn’t notice that the original item ‘d be substituted. An illegal action isn’t a good basis for much anyway.
– “All these complications because P&Z wants 06-06 despite the law. I hereby object, appeal & protest against P&Z’s passage of 06-06, and I ask for action including removing 06-06 from next week’s agenda.
– “P&Z Reg 2206.09, and ARS 11-829(D), which that reg follows, allow objection, appeal & protest, with a Board hearing at least 15 days later. It’s P&Z’s job to educate the public, but P&Z’s agenda for November said only how to start the process, and only for an appeal, and only for some other items. People can’t follow procedures that P&Z doesn’t reveal.
– “Throughout this process, I stated my legal & factual thinking openly to the people involved, and a lot more happened than I’ve said. The county gave back only silence, evasion and chicanery. That’s why the rural revolt started. Please, besides the other action I’ve asked for, get independent, outside legal advice about P&Z, & if you do, get ready to clean house.”

The Board (Chairman Searle present, Supervisor Newman participating by telephone) did not ask any questions of Hanson, who was present to advise them. It is unclear what the Board will do at its meeting on December 5. Whatever will happen is important to Sierra Vista and the surrounding area.

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