The April 14 County Planning & Zoning Commission meeting will consider the New Tribes airport application for expansion.

The New Tribes airfield in McNeal, Arizona, has applied for a Special Use Permit to add a 6-bedroom “guest house that will be available to visiting friends and families of” New Tribes, a gymnasium “for interior recreation for [New Tribes] personnel and their families,” and “6 new homes for staff families in addition to the 25 homes already on the property.”  Here’s a link to the New Tribes letter describing what it wants:
http://littlebigdog.net/NewTribesMore.jpg
This discussion opposes the permit, and states why.

I.    New Tribes background

The New Tribes airfield here (aka Tribal Air) is a subsidiary of a missionary organization headquartered in Sanford, Florida.  Around the world, there are about 3300 New Tribes missionaries.  Here’s a link to the headquarters homepage
http://www.ntm.org/
and here’s a link to a Wikipedia article about New Tribes
http://en.wikipedia.org/wiki/New_Tribes_Mission

New Tribes says its mission is to reach tribes — the New Tribes Bible Institute calls them “heathens” — who have not yet been exposed to Christianity.  The truth is a little different:  New Tribes also combats specific other varieties of Christianity.  For instance, the webpage at
http://www.hvk.org/articles/1008/97.html
says “Papua New Guinea is now 94% Christian.  Yet missionaries still arrive in droves.  Why?  For the simple reason that they are now importing their denominational bickering into the country….  [T]he New Tribes Mission … tells the confused Papua New Guinean that the papacy is the antichrist.”

Starting about 1981, New Tribes used Bisbee Douglas International airport.  In 1991, New Tribes moved to McNeal after getting a Special Use Permit.  Here’s its website:
http://www.ntm.org/ntmaviation
New Tribes is located on a square mile whose west edge is just under 2000′ from the intersection of Davis Road and US 191.

New Tribes came to McNeal solely to teach pilots and mechanics for its worldwide activities.  To get the Special Use Permit in 1991, New Tribes promised to benefit the McNeal community, but the airfield’s main effect may have been to make nearby property harder to sell, because of the constant airplane noise.  New Tribes has a history of violating the terms of its permit, and now New Tribes’s request to build a gym, and a 6-bedroom guest house, looks like a push to create a private vacation center, or perhaps even a boarding school.

New Tribes in McNeal began with 25 homes.  Over the years, New Tribes people have built about a dozen homes just west of the airfield, and could keep on building in that area, if the only goal were more housing.  New Tribes is, however, choosing to turn back inside its square mile and develop what seems to be becoming a compound which will increase New Tribes isolation from the community.

I’ve been accused of having a “vendetta” against New Tribes.  There’s no vendetta.  What there is, is resistance to New Tribes’s failure to abide by the terms of the permits the County has issued, and dislike of New Tribes’s conduct in what I hoped would be neighborly discussions.  New Tribes seems to assume that whatever it wants, is right, and that the facts, the law, and everyone outside New Tribes must give way to whatever New Tribes wants.  It’s not a vendetta to react in self-defense when New Tribes acts that way.

Nor is this an attack on New Tribes people.  I’ve never met one that I didn’t like personally.  But in their official capacity with New Tribes, they do things that they would never do, if they were simply individuals dealing with their neighbors.  New Tribes, like any big organization, has goals of its own.  Its goals are discussed in Section II below.  Its actual practices may hurt people:  its own people, the people it targets, and its neighbors.  This is discussed in Section III.

II.    New Tribes, in theory

New Tribes tells its own story at
http://www.ntm.org/about/
including:
“Of the world’s 6,500 people groups, 2,500 are still unreached.
“New Tribes Mission helps local churches train, coordinate and send missionaries to these tribes.
“The NTM missionary team learns the tribal language and understands the culture, so the message of the Gospel can be presented in the language and the manner the people will understand.
“They translate God’s Word, teach people how to read and write their own language, and teach through the Bible chronologically, laying a foundation for the Gospel among people who have never met the God of the Bible.
“Missionaries disciple the new believers, equip them to lead their church, and help them reach out to other villages within their own tribe and to neighboring tribes.”

Here’s a video showing New Tribes preaching:
http://fightthegoodfight47.blogspot.com/2009/11/you-tube-real-evangelism-by-new-tribes.html
In fact, a search of “New Tribes” on Youtube.com leads to many videos posted by members of the organization.  This material is mentioned here so that the reader may look at New Tribes on its own terms, before reading on.

In the United States, New Tribes missionary training takes place at New Tribes Bible Institute (“NTBI”), a 2-year school.  You can enroll if you are 17 and have finished high school, or have been home-schooled to that level.

A catalog of NTBI courses is online at
http://www.ntm.org/ntbi/ac_courses.php?io=3?page=Academics
NTBI’s courses do not merely teach NTBI’s own variety of Christianity, they also teach how to combat specific other religions which are generally considered to be “at home” in America, whether or not you like them.  From NTBI’s catalog:
EV048 MORMONISM … contrasting how Mormon beliefs differ from Scripture, and teaching how to challenge Mormons to correctly consider the claims of Christ.
EV018 JEHOVAH WITNESSES … how to effectively challenge their beliefs ….
EV070 CONTEMPORARY AMERICAN CULTS … Scientology, Christian Science, and Seventh-Day Adventism…. the differences between Biblical Christianity and these religions ….
EV017 THE NEW AGE MOVEMENT … the history, roots, goals and teachings of the New Age Movement, and teaches biblical responses for the believer to those we meet who may be involved.
TH177 ANTHROPOLOGY/HARMARTIOLOGY … the doctrine of man (Anthropology) and sin (Harmartiology).  Anthropology includes the creation and fall of man, his material and immaterial parts (the body, soul, and spirit), his state of innocence, fall and depravity.  Harmartiology looks at the definitions and origins of sin in the universe.  [Note:  Obviously, at NTBI, "anthropology" has no relationship to the normal meaning of the word; and as to "harmartiology," the Greek word is "hamartiology" -- it starts with "ham," not "harm" -- and the concept of hamartia -- not "harmartia" -- isn't really "sin," but something like "deficient performance at a crucial time, with long-term consequences."  "Harmartiology" is the greatest show of scholarship that NTBI puts on; misspelling the word, twice, should be embarrassing.]

Of course a religious school will teach its own beliefs, but NTBI also teaches how to combat specific other varieties of religion.  One course, EV070, “Contemporary American Cults,” is especially revealing.  The course is about Scientology, Christian Science, and Seventh-Day Adventism.  Scientology, invented by science fiction writer L. Ron Hubbard, is about ten years younger than New Tribes, and whatever you think of Scientology, it has far more members than New Tribes.  Christian Science is almost 150 years old and has between half a million and a million members.  Seventh-Day Adventism is a little older than Christian Science, and has about 16 million members.  New Tribes reveals a self-centered view of the world when it calls those groups cults.

New Tribes also looks down on mainstream American Christianity. The webpage at
http://www.akha.org/content/missiondocuments/missioninterventionbodley.html
states “the fundamentalist New Tribes Mission maintains a strict ‘separation policy’ prohibiting any of its missionaries from belonging to any church that is a member of the” National Council of Churches.  The National Council of Churches has a webpage at
http://www.ncccusa.org/members/
that says its members “encompass a wide spectrum of American Christianity … Protestant, Orthodox, Evangelical, Anglican, and African-American, historic peace churches and ethnic-language immigrant churches.  They include more than 100,000 local congregations and 45 million persons in the United States.  Beyond these member communions, more than 50 faith groups, from Roman Catholic to Pentecostal, participate in the Council’s work ….”  New Tribes’s strict separation from all of those churches is an indicator that New Tribes, which freely calls other churches cults, itself fosters a cult-like state of mind.

After NTBI, New Tribes has another one or two years of training for missionaries and support staff.  As to the New Tribes operation in McNeal, it exists to train pilots and mechanics for its worldwide activities in undeveloped areas.

III.    New Tribes, in practice

As noted near the beginning of this article, New Tribes’s practice differs from its theory.  Although practical divergence from theory is not necessarily harmful, New Tribes may be committing actual harm in three ways, discussed below:  worldwide issues of child abuse and genocide, and the local issue of how New Tribes in McNeal treats its neighbors.

A.    New Tribes hurting its own:  covering up child abuse?

There are many allegations of New Tribes child abuse at boarding schools for “missionary kids” (“MK”s), and a long coverup.  The allegations are being investigated on two main tracks, and things may come to a head within a month.  At present, the allegations cannot be accepted as proven beyond a reasonable doubt, but they do suggest that before New Tribes in McNeal is allowed to go down the road to becoming a self-centered compound, the allegations should be considered.  It would be irresponsible for the County to ignore such allegations, before letting the local organization expand.

1.    One investigatory track is from New Tribes “missionary kids,” MKs, themselves.  See
http://fandaeagles.com/
Almost all MKs remain devoted Christians, but are distressed that New Tribes is protecting its organization, but neglecting abused children.

LET’S BE CLEAR:  The MKs are not criticizing what New Tribes believes, only how New Tribes lets down its beliefs.  Almost all the MK criticisms are strongly pro-Christian.  Any suggestion otherwise would be a large red herring.

If you browse around on fandaeagles.com, and go to
http://fandaeagles.com/category/stories
you will see, at the top right of that page:
“The Mik’s story along with the communication between
NTM proves that leadership knew and did not act….  what we
find especially damaging is the abuse of leadership who
chose not to protect us at the time … and who have still
not repented nor sought justice for us today, 20 years
later.”
At the top of
http://fandaeagles.com/2009/06/111
you will find these allegations about the institution:
“… Most of the anonymous commenters are not MK’s, but
are former and current NTM missionaries who are righteously
and rightfully indignant about being lied to by leadership
about the type of environment they were placing their child
into.
“… imagine this scenario if you will.  You place your
very young child into a boarding school where the child care
provider (let’s call him Uncle D) has no qualifications or
training to work with children.  You are not informed that
he also has at least one current claim of sexual abuse
against him by a child….
“One child claims Uncle D was sexually inappropriate
with her…. but after Uncle D claims innocence and because
the school has a shortage of workers the case is dropped,
without talking to the child, or you, the child’s parent, or
any of the children’s parents.
“Now imagine one year later, another child … claims
she was molested by this same man…  She tells her father
who … contacts the school.  School officials believe her
dad is making the story up ….
“[Uncle D] admits he molested several of the girls at
the school, but as he is already leaving the school due to
personal issues the matter … is dropped … and in fact
when parents try to get information they are admonished by
the school officials to stop gossiping.”
Further down that same page, there’s a reaction to the above:
“Consider the guest book entry by a person who checks
this blog almost daily, hoping to see that New Tribes
Mission has taken a firm stand and are fully supportive of
‘the least of these’ – the children, now adults – who were
harmed in what an NTM leader himself has called ‘those dark
days at the boarding school.’
“This person wants to post anonymously, concerned lest
their ‘New Tribes affiliation could possibly backfire on’
them.
“How?  How could their New Tribes affiliation possibly
‘backfire’ on them for openly ‘rooting for both New Tribes
to be who they can be [and] for the adult Mks’?…
“How could there be the slightest hint of suspicion
that NTM leaders would object to their missionaries’
publicly declaring themselves in favor of justice?  Why does
this guest fear the consequences of saying they are against
child sexual abuse, that they are outraged at the conduct of
the leaders with respect to this situation and they want NTM
to take a firm stand?…
“A New Tribes Mission Executive Board member told the
bloggers:  ‘I can assure you that we have changed our
leadership style and the way we work with people.’  Yet,
their missionaries react with this kind of fear and
intimidation?  What kind of ‘leadership style’ is at work
here?  By whom, and to what end?  And, how?”
If you search fandaeagles.com for “quilliam,” you will find
“Ever since I was a teenager I have felt a bit like
NTM is a law into itself.  Anyone can join, hide behind God,
do whatever they like and nothing can be done about it!
They claimed they were Christians guided by God and, thus,
always did the right thing.”

Also see
http://dannimoss.wordpress.com/2009/07/23/new-tribes-mission-sweeps-child-sex-abuse-under-the-rug
for more about an organizational coverup.  Also, there has been unsettling conduct, apparently not handled well, at the New Tribes headquarters in Florida.  See
http://fandaeagles.com/2009/07/ntm-and-child-porn

2.    The other investigatory track is from an organization called GRACE, “Godly Response To Abuse In the Christian Environment,” at
http://www.netgrace.org/index.asp?str_string=About%20Us~The%20Need%20for%20GRACE~none

GRACE was begun by Boz Tchividjian, Billy Graham’s grandson.  The GRACE page mentioned above includes:
“… In the last 10 years, there have been an average
of 70 child abuse allegations against American churches
every week.  And those who survive child abuse face a
lifetime of spiritual, emotional, and physical challenges.
“The financial costs of child abuse are staggering.
Child abuse costs this country more than $94 billion each
year.  That translates to $258 million per day or $1,462
annually for every household in the United States.  Within
the Christian community, law suits were a result of 21% of
the allegations made against Christian churches.  Child
abuse has been both spiritually and financially devastating
to the Christian community.”
GRACE’s mission is to find a real solution for such problems.

The webpage at
http://fandaeagles.com/category/stories/
gives an upbeat update on GRACE’s investigation of the allegations.  A September 7, 2009, posting on that page includes:
“In a nutshell GRACE’s position on what occurred at
Fanda and other schools around the world and in the church
is this:  GRACE hates sin and coverups….  God does not
excuse injustices committed in the name of the ‘greater
good’.  In fact He abhors it.  Doing good works is not an
excuse.  The church (mission) is culpable spiritually and
criminally for covering up.”
As of this writing, the latest update on that page, dated February 23, includes
“About 15 former MKs share[d] their stories in
individual interviews with the Grace team.  Grace asked
intelligent questions and displayed appropriate outrage
about what happened at Fanda and the resulting NTM
coverup….  Grace will speak to many more MKs and Ms
(missionaries and former missionaries) in the next month and
they are shooting for final recommendations by end of
spring/early summer.”
Sometime between April and June of 2010, the situation should be clarified.

B.    New Tribes hurting the people it targets:  Genocide?

For example, four tribes in South America:
– the Zo’e; see
http://www.survivalinternational.org/uncontactedtribes/threats
– the Ayoreo; see
http://www.survivalinternational.org/tribes/ayoreo
and
http://www.search.com/reference/Uncontacted_peoples
– the Yuqu; see
here
– and the Nukak; see
http://www.mrg.webbler.co.uk/5388/colombia/nukak-and-tucano.html

One reads of things like “heathens” being hunted down using airplanes as spotters, though sometimes people flee to new territories; reduced to handouts from missionaries, and dependence on corporations who destroy the tribal way of life; reduced in numbers by diseases brought in by missionaries, who do not provide adequate treatment.

As to the Far East, New Guinea in particular, the page at
http://74.125.155.132/search?q=cache:Dt7bwCrCrucJ:www.schnews.org.uk/archive/news377.htm+%22new+tribes%22+genocide+guinea&cd=22&hl=en&ct=clnk&gl=us&client=firefox-a
includes
“New Tribes … has stated that it is their intent to reach
and preach to every ‘dark corner’ of the planet.  But the
people of West Papua have declared missionaries to be one of
the 4 biggest threats to free peoples — one of the biggest
reasons being that they build airstrips in remote jungles
which are eventually used by businessmen, corporations and
military personnel.  First comes Christianity, then comes
Coca Cola.”
Opening up new airfields is, of course, inseparable from New Tribes’s mission.  There is quite a bit of sociological discussion on the net about problems caused by well-meaning missionaries.

C.  New Tribes hurting its neighbors in McNeal

This of course is much less important, on a global scale, than the above two issues; but it is an important issue for McNeal.

New Tribes did not appear to get its original permit to move to McNeal in a completely straightforward manner, and did not completely follow the permit after getting it.

In 1991, New Tribes asked for a Special Use Permit to operate in McNeal.  New Tribes said it
“… proposes to use this property as a Private Airport and Resident Housing for Tribal Air personnel….
“… we plan on doing all we can to be good neighbors ….
“We feel the proposed use of this property will … increase, not only the value of this particular section of land, but also of the surrounding properties.”
“… single and twin engine small aircraft … will each fly about six (6) flights per day Monday through Friday for a total of about 24 flights.  No other aircraft will use the field ….
“4.  … flights will be directed away from McNeal townsite, to the north, south and east ….
“5.  … twenty-five (25) housing units are proposed for staff and pilot trainees….”

On May 20, 1991, the Board Of Supervisors approved the permit, modified to allow six (up from the requested four) aircraft, with operations “to be conducted during Visual Flight Rule (VFR) Conditions only” and “Flight patterns to reflect patterns on approved plans, weather and traffic permitting”.

The Board meeting was not pretty.  McNeal residents Tom and Florence Bohmfalk lived next to the airfield long before New Tribes arrived (now there is a row of houses, occupied by New Tribes people, between the Bohmfalks and the airfield).  The Bohmfalks wrote a description which was printed in the September 1992 issue of the Pearce “Sunsiter,” and included:
“… this ‘hearing’ was a travesty of justice….
“… a representative for the petitioners made a statement ….  The representative had been in our home and given us a completely different story ….
“…  Larger planes are being flown in and out than they stated would be used.  We believe there will ultimately be a further erosion of the tax base because this organization will seek to claim tax exempt status as a religious entity….
“… These people change their story to suit the moment and the audience….  they intend to do whatever they wish believing no one can stop them….”

As predicted, New Tribes did, in the following years, try to “stretch” its permit.  On March 2, 1993, a Planning Department employee noted noise complaints; New Tribes said it would re-emphasize the proper flight patterns to its pilots.  In 1993, there was a complaint about New Tribes planes flying over the McNeal school; New Tribes stopped that.  In 1995, New Tribes attempted to add a fire station next to the Bohmfalks’ property, but gave up after intense opposition.  From 1999 to 2000, New Tribes kept a helicopter, though its permit allowed only fixed-wing aircraft.

Things settled down then, but in 2007 New Tribes began systematic violations of its permit, by flying planes directly toward, over, and around McNeal, sometimes very low, often ten or more times per hour, five or six hours at a time.  Flights, instead of avoiding McNeal by landing from the east and turning east after takeoff, often landed from the west and turned west after takeoff, putting flights on all sides of McNeal.  Helicopter flights began, and the airport housed more planes than permitted (with at least one plane not from New Tribes) plus the nonpermitted helicopter.

This writer, who lives in McNeal, attempted a neighborly resolution with New Tribes.  We met on June 28, 2007.  During the meeting, New Tribes argued that if there was even the smallest amount of wind, New Tribes could fly any patterns it wanted — an assertion which would nullify the conditions in the 1991 permit.  New Tribes argued that it can do anything the permit doesn’t forbid.  New Tribes did not dispute that it was housing more planes than allowed, including a friendly rancher’s airplane.  New Tribes claimed that a helicopter was the same as a fixed-wing plane, as far as the permit was concerned.  New Tribes added that the copter, and its pilots, would be gone by Fall; but New Tribes did not mention that they would be replaced by others.  In short, New Tribes took several insupportable positions.

My goal was to end the New Tribes violations, so I bent over backwards to be conciliatory, but New Tribes refused to continue the discussion in the following days, and continued flights that were totally improper.  New Tribes also met with the Planning Department; New Tribes’s letter to the Department closed “Your help is greatly appreciated in accurately determining if Mr. Jackson’s concerns are valid.”  However, New Tribes’s letter only raised three of the concerns I had raised in the meeting.  The Department should have included me in the discussion, but did not, and New Tribes got to present “my” case “its” way, without my knowledge.  Not very neighborly of New Tribes.

On October 25, 2007, after the one-sided discussion, New Tribes submitted a formal request to modify its permit to allow nine aircraft, including one helicopter.  On December 24, the Bohmfalks, who had also opposed the permit in 1991, submitted a written statement including:
“… It has been our experience that NTM feels it is bigger and more powerful than mere individuals and can and will push for its goals similar to a bully in a schoolyard.  The [1991] hearing … was a total farce and a waste of time….
“It is our feeling that this present request for modification is only being done to give NTM the appearance of legality….
“… NTM has a history of forgetting its promises and flaunting its ability to do whatever it pleases whenever the mood strikes.  We have experienced buzzing of our house on an average of once a week.  There always seems to be a hot dog student who gets a high from doing something he/she shouldn’t, and after the deed is done what can be said?  If we complain, a gopher appears at our door, hat in hand, says we’re sorry.  This gets old.
“We have a vehement opposition to the possibility of helicopters being allowed at all….  We have had to tolerate the fixed wings for 16 years.  Why do they need more?  At the first hearing it was stated that it was primarily a teaching facility; the planes were secondary….
“… Before the first hearing one of NTM’s representatives told us [that] our opposition … didn’t matter, it was a done deal and anyway the only others who could complain were in the cemetery, and ‘They aren’t going to say anything are they?’  Everyone connected with this organization has had that attitude from the outset.  They will read their audience and will say what that particular group wants to hear….”

On December 31, 2007, the Planning Department submitted a report in favor of the modification.  The report said New Tribes was “proposing to increase [the] number of permanently headquartered plans [from six fixed-wing aircraft] to nine (two additional fixed-wing aircraft and one helicopter)”.  The report did not dwell on the fact that New Tribes had already been violating its permit by flying a helicopter, nor did the report express any incredulity at New Tribes’s argument that a helicopter was allowed by a permit which specified fixed-wing aircraft.  Such considerations matter to Planning & Zoning Commissioner Lee Basnar, who often states that he is against “rewarding bad behavior” by changing permits to allow practices that have been done illegally.

The report added that New Tribes “has apparently been a good neighbor in the McNeal community for almost 17 years, with no formal complaints or violations logged [sic] with the Planning Department” — despite the contents of the file in the years after 1991, and the lodging of “informal” complaints.

The report added that New Tribes was “not proposing an increase in the total number of monthly flight hours, which are currently 50 to 60 per month, but rather, dividing the existing hours among more aircraft.” Actually, flights typically begin at 7:30 a.m. on weekdays, and last 4 to 5 hours; that amounts to about 90 to 100 hours per month.  If the hours per day were cut in half, down to 2 or 2.5 — still over what New Tribes promised in order to get its original permit — then living near the airport would be more tolerable.

The Planning & Zoning Commission heard New Tribes’s application on January 9, 2008.  New Tribes had 17 letters “for,” and 6 letters against — but no Commissioner commented on the fact that most of the letters “for” were from people associated with New Tribes compound.  This writer spoke against the application, noting, among other things, two recent crashes of New Tribes helicopters in New Guinea, after their pilots were apparently trained here; New Tribes did not respond, nor did any Commissioner raise an eyebrow.

Early in the discussion at the meeting, New Tribes stated that it wanted another copter; but later in the discussion, New Tribes said it wanted no limit on the number of copters.  This change during the meeting makes it reasonable to wonder if New Tribes will once again switch during the upcoming meeting, and ask for something that it didn’t ask for beforehand.

As to flying “well away from the McNeal Townsite located to west and south of the site,” New Tribes stated that this requirement was interpreted differently by it and the County, and that this condition was not possible to follow.  As to flying during “daylight hours only,” New Tribes stated that night flights had been sought for its original permit, and that New Tribes had to land at night for practice.  That assertion appeared to completely contradict every document submitted by New Tribes in 1991.  The Commission did not challenge New Tribes’s statements.

The minutes of the meeting, posted at
http://www.co.cochise.az.us/P&Z/PNZMinutes/2008-01%20PZ.htm
show that limitations on the flight path, and daylight flights, were stricken, and two helicopters were allowed.

At least, however, New Tribes was still not allowed to fly directly over McNeal.  But after getting the expanded permit, New Tribes proceeded to push its new limits, just as it had pushed the limits of the original permit.

On January 16, 2008, I emailed Department employee Mike Turisk:  “This morning, generally around 8 to 9 am, a New Tribes plane was taking off right towards McNeal, due west from the airport.  I believe that violates a condition in the expanded permit.  If it does not, please explain to me why it doesn’t.”  Mr. Turisk emailed back:  “In order for your complaint to be considered as official, you must fill out a complaint form”.  I wanted to avoid an official complaint, so I did not file an official form.

On February 6, 2008, I emailed New Tribes:  “about 3 minutes ago, a helicopter flew [from the] west [directly over McNeal] and landed at New Tribes.  One of yours; and in your opinion, is such a flight allowed by your expanded permit?”  New Tribes answered the next day that this was a “gyro-copter owned by a pilot from Bisbee.  This was NOT our aircraft nor our pilot…. we will [try] and ask him to avoid flying near McNeal.”  New Tribes did not address the issue of the pilot’s landing at this private airport, which is not permitted by the County.

On April 8, 2008, New Tribes conducted normal operations — but April 8 was a Saturday, when New Tribes’s permit does not allow flights.  More weekend flights have occurred since then.

On August 4, I sent a note to New Tribes about another plane flying directly over McNeal.  New Tribes said that the pilot was not a New Tribes pilot, and they would not name him.

Such flights have continued on and off.  McNeal residents don’t log every violation, as they would if this were a vendetta.  McNeal residents are taking the adult role, but New Tribes is, for an organization that says it wants to be a good neighbor, showing a lot of disrespect for its immediate neighbors.

Safety issues persist.  In May 2009, a New Tribes training flight crashed near Bisbee.  “The National Transportation Safety Board determines the probable cause(s) of this accident as follows:  The flight instructor’s inadequate supervision of the flight and inadequate recovery from a bounced landing.”  See
http://www.ntsb.gov/NTSB/brief.asp?ev_id=20090416X12518&key=1
and
http://www.ntsb.gov/NTSB/GenPDF.asp?id=WPR09CA199&rpt=fa

New Tribes flying is not necessarily an asset to McNeal.

IV.    Summing Up

An old story says that a bishop, when asked, “Why so much evil and suffering in the world?”, answered “God does things in His public capacity which He deplores in His private capacity.”  So with the good people at New Tribes.  In their public role, they do things which they would never do in their private lives.

Whatever New Tribes is permitted to do, New Tribes will, if it acts as it has in the past, push beyond the permit.  The only defense for the people of McNeal is to restrict the permit, not expand it.

There’s also the question, Should New Tribes be permitted to take any more steps toward building a compound?  What does a 6-bedroom guest house, or a private gymnasium, have to do with training pilots and mechanics?  A dormitory and gymnasium look, in fact, a lot like the first steps toward a boarding school.  Given New Tribes’s record with boarding schools, does the County want to rush to permit New Tribes to go down that road, so soon before the investigation of the allegations will conclude?

First a digest, then the full story.

In the late 1960s, Mike Mercer moved onto 10 acres in Cochise County.   The property was, and still is, remote.  From the beginning, Mike used  it as a “collection yard, storage yard, recyling yard” — what people  would call a junk yard.  Mike met Donna about 15 years ago, and she  joined in the operation.

When Mike moved in, there was no County zoning.  There wasn’t even a  Planning & Zoning Commission until 1972.  There was no zoning until  1975, over five years after the “junk yard” operation began.  Because  the property’s use came before zoning, the property is “grandfathered”  — it doesn’t have to comply with zoning.  Until earlier this year, the  County acknowledged this.

In 2004, Mike’s neck was broken when a truck drove into his car.  He  lingered until February 3, 2009.  Now that he’s gone, Donna lives on  public assistance, about $500 a month.  Mike’s injury and eventual death  did not end the “junk yard” operation.

During all the years of the operation, there were no complaints from the  neighbors.  But before Mike died, new neighbors bought the property next  door, and are rumored to have said they would get Mike’s property after  he died.  Soon after Mike died, the County began prosecuting a complaint  about the property.

At the hearing on the complaint, the file was full of evidence about the  property’s being grandfathered, and negotiations with the Department.   Yet the Department let the Hearing Officer issue a “default order” which  ignored the grandfathering and negotiations, and fined Donna $750 plus  $50 a day until the property is cleaned up and the fine is paid — so if  the property is cleared off but the fine isn’t paid, the fine for not  paying the fine will be another $50 every day.

Donna cannot reasonably expect to ever recover from this judgment, which  the Department could have prevented by fair dealing, both in  negotiations before the hearing, and at the hearing itself.  This is  shameful conduct by a County government acting in our name.  There are  signs that the County is reluctant to enforce the judgment; leaving  Donna alone would be a wonderful way for the County to mend fences with  rural residents.

The full story follows.  It’s not really Donna’s story; it’s about what  the County can do to any of us if all of us don’t stick together.

I.  THE PROPERTY USE IS GRANDFATHERED

Mike Mercer moved onto 10 acres in Cochise County in the 1960s.  At  first he rented, but in 1971, he bought the property on a 15 year  mortgage, which he paid off in 1986.  Mike and Donna met in the mid-90s,  and she became an essential part of the operation.

The property’s mailing address is 328 West Rockspring Lane, Benson AZ  85602, but it really isn’t near Benson.  It’s over 10 miles from Benson,  and that’s as the crow flies.  Thanks to Google Maps, a map of the route  to the property is online at

http://littlebigdog.net/MercerProperty.jpg

and a closeup of the immediate area is online at

http://littlebigdog.net/MercerCloseup.jpg

It’s hard to know any other location that Mike and Donna could have  picked, that would have stayed so remote all these years.

When Mike moved in, the property was already a “collection yard, storage  yard, recyling yard” — what people might call a junk yard.  Mike, and  later Donna, continued that use.  Maybe “junk yard” doesn’t sound like  much these days, but when Mike moved in, a junk yard wasn’t just a  landfill dropoff.  People went to junk yards to find all kinds of  “stuff.”  Mike and Donna got by.

John Roberts, a family friend and participant in the operation for  decades, says the operation “is basically a buy/sell storage yard.  Nothing goes on for months and then we may be out there working for a  week at a time. My mechanic and I rent half of the property and have for  many years [] Cars and vehicles are the main operation. Mike would  collect them from that general area and has as mentioned before…..for  the past 40 odd years.”

There was no County zoning when Mike moved in, or when he bought the  property.  County zoning didn’t begin until 1975.  County zoning is  allowed by state statutes, and the applicable statute, Arizona Revised  Statute (“ARS”) 11-830(A), says “Nothing contained in any [zoning]  ordinance authorized by this chapter shall (1) Affect existing uses of  property or the right to its continued use … for the purpose for which  used at the time the ordinance … takes effect.”  County Zoning  Regulation 2003.02(A) says “Any use of land … lawfully existing …  prior to January 1, 1975 … may be continued even though such use does  not now conform with these Regulations.”  The property is grandfathered.

The County long acknowledged that the property is grandfathered.  Mike  told his friend John Roberts that “soon” after he moved onto the  property, and again in the 1980s, zoning inspectors told him he was  grandfathered.  Mike added that several nearby properties got the same  message at the same time.

In 2004, a truck drove into Mike’s car and broke his neck.  Mike  lingered for years, knowing he was dying.  A lawsuit dragged on until  Mike settled for $25,000, which was spent on things for Donna to use  after he died.  On February 3, 2009, Mike died.  His money is gone.   Donna lives on public assistance, about $500 a month.  John and the  mechanic try to keep her car running, and provide other services she  cannot afford.  John says that most of the time, Donna is “in town with  her cousin trying to get some medical help and basically getting her  life back in order.”

Mike’s injury and death did not stop the operation.  John says that  after the injury, “[t]he price has slacked off somewhat now and we have  not been doing as much, also with the death of Mike but there has been  no discontinuance of the operation.”

But a nearby property was sold, and John says that its new owners told  people they would acquire Mike’s property after he died.  Soon after  Mike died, the Planning Department began prosecuting a zoning violation  complaint against the property.

After the complaint was filed, Mike and Donna’s friend John negotiated  at length with the Department, emphasizing his own knowledge of the  operation and its being grandfathered, and reminding James Vlahovich of  his own memory, too; Vlahovich, currently Deputy County Administrator,  used to be an inspector, and had personal knowledge of the property in  years past.  These negotiations are discussed in detail in Section V  below; at this point what matters is that the Department, and Vlahovich,  didn’t dispute John’s statements.

Now, suddenly, over two months after the hearing’s outcome ruined Donna,  the Department claims to have photographs disproving grandfathering.  On  September 8, this writer emailed Department head Susan Buchan a short  writeup of the case; Buchan answered “… We reviewed our aerial photos  from 1996, 2003, then 2008. They show a progression from no junk to  increasing ‘outdoor storage’. So the existing use is not grandfathered….”

But there was no mention of such photos until the outcome’s fairness was  questioned.  If the County had produced such photos before the hearing,  when John Roberts was negotiating based on grandfathering, John could  have evaluated them.  John KNOWS what accurate photos must show; his  personal knowledge goes back to the 80s; and he stands firm about  grandfathering.  His personal knowledge, and Vlahovich’s, can’t be  ignored.  Maybe the County interpreted the photos wrongly, or trees  shielded parts of the operation from aerial view; there are also other  possibilities.  But it’s certain that new evidence can’t end the matter  just on the Department’s say-so.  For new evidence to come in, judgment  must be vacated, and a new hearing held.  Vacating the judgment is  discussed in Section VI below.  Whether the County should even try a  second bite at this apple is a different question.

II.  THE COUNTY’S PROSECUTION OF A GRANDFATHERED USE

On April 8, 2009, Planning Department employee Chris Saylor sent Mike  and Donna a Notice Of Violation asking them to call him by April 23  about the following conditions:
. Outdoor storage in excess of that permitted for residential use.   Building materials, Vehicles, furniture, applicances, tires, trash and  debris.
. Please provide titles to all vehicles for owner(s)/occupant of  property
. Operating a junkyard without a permit

Donna contacted John Roberts, the family friend.  On April 21, John  emailed Vlahovich.  John’s email included:
” … Mike and Donna Mercer, 328 Rock Spring Road … recently  received a violation letter from the county, complaint from a neighbor.
“This one needs some recollection on your part.
“Mr. Mercer owned the property long before I came to Pomerene and  met you ….  The Mercer property was a junk yard when he purchased it  and he has continued to operate it as such all these years….
“If I am to help [Donna] at her request I need to know if this is  another one of those situations where nothing was written down or recorded.
“Many of these propertys exist in the county and it would seem that  some status as a recycling point would be beneficial in getting scrap,  etc off neighboring propertys. Many folks simply do not have the time  and money to load and utilize the dump facility and end up using an out  of the way wash, close by.
“I have not sent a copy to Susan [Buchan] or Rick [Corley] since  they were not here in the early 80′s. You were… when the new rules  were proposed and these mentioned properties were targeted and then  allowed to continue under some rule……Hopefully you can recall, save  a lot of time.”

Vlahovich didn’t answer.

Donna, after contacting John, did not answer Saylor, and on May 1,  Saylor sent her a “Final Notice” stating that “review of the violation  on your property has found continued non-compliance” so “a COMPLAINT has  been filed … for a hearing on July 16, 2009.”

Donna gave this material to John, who contacted Landrights.com on the  internet, whose Bill Munro advised Donna to “scribe out the conditions  of the violation notice and write in UCC1-308,” in accordance with a  “common law” theory.  On May 22, Donna did as instructed, and mailed  Saylor a copy of his April 8 and May 1 letters, marked as instructed,  and notarized on each page.

On May 26, Saylor mailed Donna, stating “I have received the letters  that were sent to you, and you have notarized them all.  If you have any  questions or concerns about this please feel free to contact me to  discuss this matter further.  Please call me at (520) 432-9240 to  discuss the resolution of this issue.”

Saylor’s letter was interesting.  Saylor has previously been perceived  by rural residents as “problematic.”  In early 2008, during an  investigation of remote property on EE Ranch Road, one citizen wrote  “Saylor came out and told me verbally that I had 30 days to get off my  property.  All my building and animals.  No written paper stating this”  and “He tried to bully me into something and he was acting like he was  above the law.”  (The quotes are online at

http://littlebigdog.net/_EEK2.jpg

and

http://littlebigdog.net/_EEK3.jpg

For the full letter, see pages _EEK1 through _EEK6 .)

Donna did not answer Saylor’s letter.  On June 9, the Cochise County  Hearing Officer issued a Complaint signed by Saylor, and addressed to  Mike and Donna.

The Complaint of June 9 alleged that “the Respondents on the 7th day of  April 2009, through the 3rd day of June 2009, did commit a violation of  … Zoning Regulations … 603, 1811, 2301, and 2304 … as follows:   Use of the property for a junkyard without a permit, and outdoor storage  of vehicles, auto parts, appliances, construction material, tires, trash  and debris, which constitutes a public nuisance.”

The June 9 material also included two Summonses, evidently one each for  Mike and Donna.  Mike, dead since February 3, chose not to sign; and  Donna did not sign or return her summons.  One might wonder why Saylor  sent Donna a summons for her deceased husband Mike to sign.

Donna received notice from the Post Office that the first Notice Of  Violation had been sent by certified mail, but she did not pick up that  mail; and she received no more Post Office notices of certified mail  from the County; everything she received, after the first Notice Of  Violation, came by regular mail.

The June 9 material also included a Notice Of Hearing for 1 pm on July  16.  The Notice included:  “You may disagree with the complaint.  If you  do, you may file an answer explaining your position on the Answer form  included in this packet.  Bring with you any and all exhibits,  documents, statements, and witnesses to be offered as evidence ….  IF  YOU FAIL TO APPEAR AT THE HEARING, THE HEARING OFFICER WILL CONSIDER  THAT YOU HAVE ADMITTED TO THE COMPLAINT AND IMPOSE A CIVIL SANCTION.   You may be represented by counsel or by other designated  representative(s) at the hearing.  If you are to be represented by  counsel, you are requested to notify the hearing officer at least ten  (10) days before the hearing date.”

That language leaves some ambiguity as to what will happen if a  defendant does not file an answer, or appear.  The instruction says “you  may file an answer,” not “you must.”  The instruction also says “IF YOU  FAIL TO APPEAR … THE HEARING OFFICER WILL CONSIDER THAT YOU HAVE  ADMITTED TO THE COMPLAINT ….”  The word “CONSIDER” does not carry the  force of other possible words such as “DETERMINE,” “CONCLUDE,” or  “RULE.”  The word “CONSIDER” does not strongly or unequivocally  communicate that failing to appear will amount to forfeiting the case.

The June 9 material also included an “Answer” form, which states “If you  disagree with the complaint, you should explain why in the space below  ….  Mail this sheet to the Hearing Officer clerk ….  In response to  the allegations in the zoning/building enforcement complaint in this  case, the respondent(s) states the following: ….”  Donna did not use  this sheet or otherwise communicate with the County about this herself.

The June 9 material also included a page called “GENERAL INFORMATION FOR  RESPONDENTS.”  Its information includes “At the hearing, you will have  the opportunity to present any evidence, exhibits or witnesses to enable  the Hearing Officer to make a determination of the case….  You do have  the right to be represented by an attorney or other designated  representative ….  The County … will generally not be represented by  the County Attorney, unless you choose to be represented by a  lawyer….  If the Hearing Officer does rule against you, you have the  right to appeal his decision to the Cochise County Board of Supervisors  … within ten (10) days of the Hearing Officer’s Order ….  [I]f you  disagree with the decision of the Board of Supervisors, you can seek  judicial review in the Superior Court….  If you have any questions  concerning the procedures, please contact the Hearing Officer/Clerk  ….  You may obtain a copy of the Cochise County Hearing Officer’s  Rules and Regulations on request….”

When this writer asked the Board Of Supervisors for the Rules, the  response was “The rules you are looking for are in Planning & Zoning  rules.  Please send them a completed Public Records Request ….”   Instead, this writer asked the Planning Department if the Rules were  posted online or could be purchased at the front desk.  The answer was  that the Rules “have not been posted in the past, but I think we will go  ahead and do this.  I believe Rick Corley is going to get a copy of the  Hearing Rules for you and I’ve cc’ed him on this message.”  Corley did  soon email the Rules, and a copy of them is now posted online at

http://littlebigdog.net/County%20Rules%20For%20Zoning%20Violation%20Hearings.htm

III.  SERVICE OF THE COMPLAINT — INSUFFICIENT?

Hearing Rule 3(c) says “[t]he Zoning Inspector shall personally serve  notice on the defendant at least five (5) days prior to the hearing,”  and Rule 3(d) states that “[i]f the Zoning Inspector is unable to  personally serve the notice, the notice may be served in the same manner  prescribed for alternative methods of service by the Arizona Rules of  Civil Procedure which provide for mailing a copy of the summons and of  the complaint, by first-class mail, postage prepaid ….”

That language is generally consistent with the corresponding state  statute, ARS 11-808(E):  “If the zoning inspector is unable to  personally serve the notice, the notice may be served in the same manner  prescribed for alternative methods of service by the Arizona rules of  civil procedure.  A notice served upon the alleged violator other than  by personal service shall be served at least thirty days prior to the  hearing.”

However, at the hearing, the only evidence apparently introduced about  procedural matters like service was in a “Violation Log” provided by  Saylor.  One entry in the Log is “6/9/09 … Hearing packet sent.”  The  “hearing packet” was the Complaint, Summons, and so on, all sent on June  9.  But nothing in the Log shows any attempt to make personal service on  Donna.  Lacking that, sending the hearing packet by mail was a violation  of Hearing Rule 3(c) and ARS 11-808(E).

The Default Order by the Hearing Officer does not make any findings  about service (the findings the Default Order does make are discussed in  Section VI below).  It is axiomatic that without service on a party, a  court does not acquire jurisdiction over a party.  When the Department  failed to offer any evidence about service, dismissal was the proper  course.  Glossing over the failure of any allegations of the required  service was improper; in fact, it was shameful.

IV.  SAYLOR’S “PRE-HEARING MEMORANDUM”

On June 30, Saylor submitted a “Pre-Hearing Memorandum” to Hearing  Officer Jack Chapman, with copies to Buchan and Corley, for the hearing  on July 16, 2009.

The Memorandum repeats the Complaint’s charges of “a junkyard without a  permit, and outdoor storage of vehicles, auto parts, appliances,  construction material, tires, trash and debris.”  The Memorandum argues  that the specified conduct violates Zoning Regulations “603, 607, 1811,  2301 and 2304,” and the Memorandum includes the text of those regulations.

Actually, merely giving the number of entire regulations may not be  specific enough.

Regulation 603 lists “Permitted Principal Uses” for “all RU zoning  districts.”  It states “Also see Section 606, Other Permitted Uses,” but  a use not permitted by 603 might still be permitted by 606.  No evidence  in the record so far clears up this possibility.

Also, Regulation 603, unlike an ordinary law such as a law prohibiting  robbery, doesn’t say what citizens can’t do; it lists what citizens are  allowed to do.  Donna wasn’t charged with doing anything harmful, only  with doing something not on the government-approved list.  When  government prosecutes people merely for doing anything the government  hasn’t previously approved of, government is not serving citizens, it is  tyrannizing subjects.

Moving on to the next Zoning Regulation listed in the Complaint:

Regulation 607 lists “Special Uses” which may be permitted “in an RU  zoning district.”

Regulation 1811 has sections A, B1a, B1b, B1c, B2, B3a, B3b, C1, C2, and  D.  The Complaint does not allege violation of any particular section.   This lack of specificity arguably makes the Complaint insufficient as a  matter of law.  In the general state statutes governing Administrative  Law Judges, ARS 41-1092.03(A)(1) requires notice to a defendant to  “Identify the statute or rule that is alleged to have been violated or  on which the action is based.”  Regulation 1811 has ten subsections; to  merely allege a violation of 1811 in general fails to satisfy ARS  41-1092.03(A)(1).

Also as to 1811:  Just before Buchan’s predecessor as Planning Director  retired, the outdoor storage regulations came under intense public  scrutiny, and a proposed rewrite of them was set aside; additional  public meetings were to be set, but they never have been.  In light of  this history, Buchan’s “hard line” on enforcing part of the outdoor  storage regulations, especially in the remote area in this case, is  somewhat surprising.

Moving on to the last two listed Zoning Regulations:  Regulation 2301 is  entitled “Violations Deemed a Nuisance,” and states, in entirety, “Any  building, structure, or use erected or maintained or any use of property  contrary to the provisions of these Regulations is unlawful and  constitutes a public nuisance;” and Regulation 2304 states possible  penalties.

The Memorandum’s failure to mention grandfathering is odd, since  grandfathering was discussed so much in the negotiations.

The Memorandum recommends, in addition to financial sanctions, that “the  respondents be required to:
“. Cease and desist operating a junk yard without a permit or
“. Apply and obtain a special use for a recycling center or
“. Remove all outdoor storage in excess of that permitted for  residential use Vehicles, auto parts, appliances, construction material,  tires, trash and debris and
“. Provide titles to all vehicles for the owner(s)/occupant(s) of  the property and
“. Remove all vehicles not titled to the owners(s)/occupant(s) of  the property in a legal manner.”

On July 2, John obtained a copy of the June 30 “Pre-Hearing Notice” from  Donna.  However, Donna’s receipt of this in July does not excuse the  Department from complying with the service requirements (see Section III  above) for the Complaint itself.

V.  NEGOTIATIONS ABOUT THE COMPLAINT

Section V has three parts:  A, negotiations just after the Complaint was  filed; B, the County’s sudden refusal, the day before hearing, to accept  John as Donna’s representative; and C, events after the County’s sudden  switch.

V.A.  THE DEPARTMENT NEGOTIATED WITH JOHN ABOUT THE COMPLAINT

On July 3, John emailed Buchan, including:
“A matter that has come to my attention last evening is a Notice of  Hearing on parcel 208-10-07, Michael W. and Donna L. Mercer.
“I would like to discuss the problem in general by phone if that is  possible this afternoon. I emailed Jim [Vlahovich] some information on  the property a month or so ago and Ms Mercer had her council send some  paperwork to Chris Saylor to resolve the problem.  Chris mailed Ms  Mercer the what was sent back to her so not sure the intent was  understood. you should be familar with the situation.
“Michael died three months ago and Ms. Mercer at his request has  asked me to try and resolve the problems with the county. She is not  physically or mentally able to deal with it at this time.
“I had made Michael an offer on the property some years back and she  has accepted that offer.
“I do not want to proceed until I can reach some understanding with  the county as a major cleanup involving time and investment is required.
“I am in an out all day and will return your call if you should get  answering machine.”

On July 6, John mailed Donna a letter including:
“Sorry I missed you Thursday night.I got the envelope and returned  violation letters you sent Chris Saylor and I emailed the county and  passed along the information your note said your councel had advised you  to make sure they were aware. I have enclosed my email to that effect. I  will send a copy of this letter and readvise so you will be sure.
“Today is Monday, about 4.00 p.m. and I have heard nothing in  response at this time. I will inform you when i do but if you are in  Tucson with your Cousin I have no phone or addresss there.
“I am willing to open escrow on the property this week but need some  understanding from the county on the property status. As you know I,  like you want to discontinue Mikes junkyard operation but 30 years of  collecting will take some time and capital to make it ready for building.
“You mailed Chris Saylor, the county enforcement officer their  violation notice(s) and scribed out the conditions you did not agree  with and cited UCC1-308 as your attorney advised. If I do not hear  anything by Wednesday I would continue to follow his advice.”

Later on July 6, John emailed Buchan a copy of the above letter, with  comments:
“I am enclosing a copy of a letter to Ms Mercer on her property  under discussion. As mentioned Ms Mercer is barely getting over her  husbands death and in the few converstions I have had with her does not  fully understand the problems confronting her. The problem is a simple,  solvable one…and will allow my son and i to work toward finalizing our  purchase of the property.
“1.Withdraw the violation
“2.Reinstate the violation when the sale is finalized
“My son and i wish to divide the 10 acres and build two homes.
“One for him, one for me.
“I am getting older and my stake in all this is to have a good neighbor.
“This cannot be done without a cleanup of the property. This is a  major undertaking and we had been asked to help out on this after Mr  Mercers accident and he was informed he would not regain his health. A  settlement by the insurance company was to pay for this but this did not  happen.
“The property is in Zone D (Area D) with different building  restrictions and advantages for a home builder. Would you have a copy of  these regulations mailed to my son ….”

On July 8, Buchan finally answered John, and asked about setting up  further discussions with him.  In an email to John, copied to Saylor and  Corley, Buchan said:  “At this point the Mrs. Mercer is scheduled to go  to hearing next Thursday, July 16th., 2009. If you would like to come in  for a meeting before that time, we can set one up. We should wait till  this Friday or early next week, because Rick Corley is out of the office  and he should be there. I think at this late date most of this could be  discussed in the hearing, which you could attend should you choose to.  The Department does not withdraw violations unless we have some  indication that the individual is cooperating. If you have the ability  to communicate with Mrs. Mercer, I would suggest she get in touch with  Chris Saylor as soon as possible.”

Buchan’s question about John communicating with Donna is odd, because  John’s letter to Donna, which he had provided to Buchan, included “I  will inform you … but if you are in Tucson with your Cousin I have no  phone or addresss there.”

On July 14, emails from John continued the discussion of Donna’s case,  and repeated his problems in communicating with her.

The first three July 14 emails were with Vlahovich.

At 2:38 pm on July 14, John emailed Vlahovich, including:  “I have  advised Susan the current situation on Ms Mercer. She informed me she  had an attorney and had sent paperwork to the county to resolve the  problem….. that her husband bought to property as a junkyard B.C.  (before county) and had discussed the operation with county people about  the time you and I became aquanited.  There were several of these  recylings yards around about the time the county tried to bring about  new rules and they were all left alone.  This parcel has been a  recycling yard, a way for the Mercers and the people they bought it from  to make a living. Ms Mercer is agreeable to selling out and has  approached me, being a long time friend and having been the county  auctioneer for 20 years……selling and getting rid of the  miscellaneous on the property.  This can be done but it will take some  time to inspect, decide and make some arrangement to pay for the  cleanup.  There is some value in some of the old cars and etc. but it  will have to be set up, cleaned up, advertised and etc. to make it  worthwhile. This will take some time.  Unless some arrangement can be  made with the county I have no interest in proceeding and am only doing  so at this point out of a long term friendship with her husband. I am  available to try and help as I have told Susan but need to see some  accomodation from the County.  You can reach me at 520 586 2022″

At 2:49 pm, Vlahovich answered John’s email, copy to Buchan:  “I’ll  discuss with Susan and get back to you John.  Thanks”.

At 2:57 pm on July 14, John replied to Vlahovich:
“thanks.
“I am just trying to head off some unplesantrys for us all.  I am  familar with the Mercers, they helped me when i came to town…..about  83-84. Lots of change wanted then and lots of country rules that didn;t  pass. You were there so can add some insight to these properties that  accumulated lots of junk when everyone was trying to find a way to  survive.  This one can be cleaned up and a couple nice taxable homes  built…but I know Ms Mercer has an attorney and is not too rational  since her husband passed. I am one of her few trusted contacts but have  not seen her for awhile. A delay in the proceedings until i can get with  her, make some determination of the cost of cleanup would help…….”

The last July 14 email was from John to Buchan, timestamped 9:53 pm.  It  includes:
“Since you advised early this week would be a better time for a  meeting….I had waited to contact you feeling perhaps Ms Mercer would  get in touch with me and would be better prepared to advise. She is not  home and my note and her mail is still in the box.
“As mentioned she apparently stays in town with her cousin and has  health problems making any communication and travel difficult if not  impossible.
“She has left me in difficult situation to know what to do and so i  went over the packet of information she left, copys of notorized scribed  out letters she sent to Chris Saylor as per her attorneys advice. I do  not know who this is and not being able to communicate with her advised  my council of the situation and he advised the following:
“1. to mail you a copy of the information sent and what the intent  was…….
“2. this intent being that in notorizing and sending these scribed  out notifications which she does not agree with to the sender, Chris  Saylor, Cochise Countythat she has protected her rights under UCC1-308.   An email was sent to Jim Vlahovich advising that this property has been  used as a junk, recycling yard for 40 years. The fact that new people  move in and want to benefit from a change in status of the property is  not acceptable, not lawful.
“3. Continuation of proceedings, a hearing, fines, penaltys  accessed  against Ms Mercer will likely result in a filing in Superior  Court against the County and all those involved.
“My suggestion at this time would be to table the violation against  Ms Mercer as it appears the county would have no jurisdiction as the use  was established before Planning and Zoning was formed.
“Ms Mercer, and myself have discussed the discontinuation of the  Junk/recycling yard since her husbands accident, him being the operator  and now not able to continue, therefore the recycling and any profit not  forthcoming.  I advised in another email the planned use of the property  which she is in agreement with and everyone benefits.
“Any sanction, fine or other by the County will only delay any  progress in the transformation.  I have funds and equipment now to  resolve the problem but may not have if the situation drags out in the  courts.”

John’s emails reaffirmed both that he could not reach Donna to  communicate with her, and that the “grandfather” issue was alive.  Most  of all, the County knew that John was representing Donna, and the County  did not state any objection to that.

On July 15, the County’s discussion of Donna’s case with John continued,  at least for the two emails on that day.

At 7:44 am on July 15, Vlahovich emailed to John, copy to Buchan:   “John, I discussed the issue of a delay of the hearing with Susan  yesterday.  She indicated that staff has put considerable time and  effort into this violation and is finally ready to go to hearing.  She  stated that they plan on proceeding with the hearing and that you and/or  Ms. Mercer will be able to explain your specific situation at that  time.  Thanks”.

At 12:03 pm on July 15, John emailed Buchan:  “I am enclosing a copy of  email to Jim [Vlahovich]…self explanatory…..  I will send you a copy  of the “Conclusion and resolution” with thoughts. I know everyone has  put a lot of time into this but keep in mind that …..thats their  job……I have put a lot of time in also…..I don’t get paid……  thanks”.

V.B.  THE COUNTY’S SUDDEN SWITCH ABOUT NEGOTIATING WITH JOHN

The hearing was set for 1 pm on July 16.  Just less than 24 hours before  then, at 1:39 pm on July 15, Buchan emailed an answer to John, copy to  Vlahovich, which completely changed the situation:  “It’s more than just  the time actually. We are beyond the date when this can be dismissed or  extended by anyone other than the hearing officer, and because you do  not own the property at this time (no matter what the future brings), we  cannot consider you as the representative of the the property-it’s  illegal, it has to be the owner or a legally designated agent, by  statute. I think there is an opportunity for things to wrked out in the  hearing, but only if Mrs. Mercer comes in to do this. Anything else is  just considered heresay. No disrespect, it’s the way the law reads and  we have tightened up our violations proceedings considerably in the past  couple years.  Thanks”.

If the Department was not willing to negotiate with John, it could have  said so long before the afternoon before a hearing.  Such a substantial  change in the Department’s position, coming the very day before the  hearing, can reasonably be considered to be fundamentally unfair — a  denial of due process.

Also, Buchan’s email contains two problematic statements.

One problem was Buchan’s stating that it was so late in the case that  only the Hearing Officer could dismiss or continue the hearing.  That  was misleading.  A Hearing Officer always has control over his own  docket, but Hearing Rule 4.1 specifically says “[t]he County may  request, in writing, that the hearing officer dismiss a Complaint.  All  such requests shall be filed prior to the date of hearing.”  Buchan  implied that she could not even ask for a continuance the day before a  hearing, but Rule 4.1 says otherwise.

On Tuesday, September 1, this writer sent Buchan an email which asked,  in part, about her statement that she could not ask for a continuance or  dismissal.  She answered the email, but not this particular question.

What Buchan’s answering email did say was on another issue:  “we cannot  consider [John] as the representative of the [] property….  it has to  be the owner or a legally designated agent.”  There are problems with  that assertion too.

First, Buchan’s statement is inconsistent with ARS 11-808(F), which  includes:  “At the hearing … the alleged violator or his attorney or  other designated representative shall be given a reasonable opportunity  to present evidence.”  Buchan’s statement is also inconsistent with the  statutes governing administrative law judges, in which ARS 41-1092.01(D)  says “The director [of the office of administrative hearings] shall not  require legal representation to appear before an administrative law judge.”

Also, Buchan’s statement to John contradicts the County’s advice in the  official papers mailed on June 9.  Those instructions say “[y]ou may be  represented by counsel or by other designated representative ….”   Clearly, a person may be represented by “counsel” or by someone who is  not “counsel.”  And here, “counsel” means “lawyer.”  The “GENERAL  INFORMATION FOR RESPONDENTS” sheet with the Summons and Complaint says  “You do have the right to be represented by an attorney or other  designated representative ….  The County … will generally not be  represented by the County Attorney, unless you choose to be represented  by a lawyer.”

This writer emailed Buchan on Monday, August 31, 2009, asking “I’m told  that in County hearings on zoning violations, the Department says that a  state statute allows only the owner or a legally designated agent to  present defenses — in other words, that an owner can’t be represented  by a person who’s not an attorney.  I’ve tried to find such a statute  but can’t.  Can you please point me to the statute number?  Your  citation will be much appreciated.”

Buchan answered “I’ll forward your question to Adam Ambrose, our  attorney. I’m not familiar with that statute.”  Her answer is dated 9:33  am on September 1, 2009.  Adam Ambrose, a Deputy County Attorney,  emailed this writer seven minutes later, at 9:40 am on September 1,  stating “I’m unaware of such a statute, and we do not require that  agents/representatives at zoning violation hearings be lawyers.”

The emails on September 1 created further problems.  On September 2,  this writer emailed Buchan about the apparent contradiction between the  emails of September 1, and Buchan’s email of 1:39 pm on July 15.  Buchan  answered “when someone wants to get a Special Use or Rezoning, or in  this case negotiate a settlement to a violation before they purchase  property, [] we make them give us the written consent of the owner to do  so. In this case neither Mr. Roberts not staff could find any way to  contact the owner, so he could not be a ‘legally-designated  representative’. I could have chosen my words more carefully, because  ‘designated representative’ would probably be more accurate.”

John has a response to that:  “The words that she emailed me were the  words I was basing my decisions on, not the words she should have chosen.”

So, while Buchan’s September 2 answer precludes any charge that the  County intentionally misled John about the hearing, it also leaves holes  which should be explored, as to the effects of County-generated  confusion which prejudiced John and Donna.

Buchan’s September 2 answer doesn’t explain why the July 15 email cited  a statute which neither Buchan nor Ambrose could identify.  In fact, the  answer talks in terms of “we make them” consent to a Department policy,  not to a statute.

Buchan’s answer doesn’t explain why she didn’t distinguish negotiating  with John — which various Department employees had been doing for some  time — from appearing at the hearing.  For instance, Vlahovich’s email  at 7:44 am on July 15 said that “they plan on proceeding with the  hearing and that you and/or Ms. Mercer will be able to explain your  specific situation at that time.”

Even after Buchan’s answer, the County’s position in this matter leaves  some questions hanging uncomfortably.

V.C.  AFTER THE COUNTY’S SUDDEN SWITCH

At 3:09 pm on July 15, John emailed an answer to Buchan, showing he was  taken off guard by the County’s sudden switch:
“I do not consider it any disrespect. As noted I have been in touch  with my council and he has advised the same thing you are and I am  already aware of it.  This is why i have been trying to get a  postponement, enough time perhaps to get Ms Mercer to come down and  appear but……
“this is not possible at this time…..
“She is not well physically…….
“She is not herself, mentally
“Michael handled everything and she does not understand things very  well and is basically unable to deal with this violation, at least at  this time.
“She is unable to get around very well… she has gain 100 lbs since  her husbands death and is now over 400.
“She has told me to take care of things by dropping off
everything relating to the violation.
“But…….
“As you know, I know, my Coucil knows…..i cannot represent her  without her authorization and have no way of getting in touch.Her note  said she was ill and going to the Dr in town.  I am assuming its to her  cousins in Tucson but as mentioned have no phone number or no idea where  that is….so again…….
“We need to table the matter until such time as i can make contact  and if she still wants me to help her……give me a power of attorney  in the matter……. otherwise…..its all dead in the water.
“I am faxing you and jim down an answer to the complaint and hope  that you will present it to the hearing officer and in lieu of other  legal steps she has taken…. find a way to …….grant a  postponement……..
“I do thank you for your patience in the matter and hope that you  trust my sincerely in trying to work things out.”

An hour later, at 4:08 pm, John sent Buchan and Vlahovich faxes — not  emails — with the “answer to the complaint” mentioned in his 3:09  email.  These faxes, which were identical, included:
“ANSWER
“Ms Mercer does not agree with the Complaint as noted – Answer is on  the attached sheet.  [NOTE:  The attached sheet is discussed below.]
“She has filed for protection under UCC 1-308, and notified Chris  Saylor, Zoning Enforcement Officer on 5-20-09.  Mr. Saylor acknowledged  receipt on 5-26-09.
“However it has been noted in several e-mails to the County that Ms.  Mercer plans for the property will eliminate the violation & sought  suggestions as to how this could be accomplished.
“I relayed her request to postpone these hearings until such a time  as she is physically & mentally able to attend.
“I respectfully ask again that this hearing be postponed until she  is able or designates someone to act in her behalf.
“Sincerely, John Roberts”

The “attached sheet” was a copy of the Planning Department’s  “Conclusions and Recommendations,” annotated by John with defenses  labeled A through J, followed by two pages of discussion of annotations  A through J, and one page summarizing Donna’s situation.

As to Annotations A through J:
– Annot. A pointed out that the proceedings were against Mike and  Donna, but Mike had died months ago.
– Annot. B argued that Donna’s use of the property was  “grandfathered” from before the Zoning Regulations were passed, that  there had been no complaints for 40 years, and that the operation is not  visible to the public.
– Annot. C noted, on similar lines, that no permit had been asked  for because none was required.
– Annot. D stated that the “trash and debris” would be removed.
– Annot. E stated that “there has been no operation since Mr.  Mercer’s accident.”
– Annot. F stated that it would take more than 30 days to clear up  the lot.
– Annot. G went into detail on how different materials — metal,  wood, and trash and debris — would be removed.
– Annot. H stated that motor vehicle titles would be provided for  all vehicles that were not crushed.
– Annot. I repeated H.
– Annot. J expanded on Annot. E’s statement about needing more than  30 days to clear up the lot, and sketched the methods proposed to be  used for doing that.

The one-page summary stated “Please be advised the plans Ms Mercer has  for the property will eliminate an[y] charged violation by the county.   This fact has been brought to the attention of the county in several  emails.  Ms Mercer is not able to deal with this issue at this time.  I  have expressed what I know that I think would be helpful.  I have asked  & ask again that you postpone this hearing until such a time as Ms  Mercer can represent herself or appoint someone officially to do so.”

In the above items, Annotation E is problematic in stating that “there  has been no operation since Mr. Mercer’s accident” in 2004.  If that  were so, then grandfather status would be lost.  ARS 2003.03(A) says “In  the event that a nonconforming use of land, building or structure is …  discontinued for a period of 12 consecutive months as a result of  conduct within the control of or attributable to the property owner, any  future use thereof shall be in conformity with these Regulations.”   However, Annotation E cannot be taken at face value.

It is true that Mike had ceased taking any part in the operation, but  Donna had not, and John’s own operations on the property had continued.   As John puts it, Mike “was the person making the deals for the cars and  scrap…..My mechanic friend and I were doing the manual part of the  operation.  We have not stopped [] Mike had stopped operation [but]  during this time we were on the property doing more than when Mike was  with us….  Only Mr. Mercer has discontinued operation.  The storage is  still there, the vehicles are still there, and we have been coming and  going and doing as before……no interuption….  My mechanic and I  rent half of the property and have for many years. Nothing basically  changed when Mike was involved in the accident since my mechanic friend  and I were doing all of the work anyway. [] The price has slacked off  somewhat now and we have not been doing as much, also with the death of  Mike but there has been no discontinuance of the operation.”

Moreover, even if read out of context without being explained, John’s  isolated statement is at odds not only with every other statement he  made, but also with the County’s own charges:  the Complaint alleged  “[u]se of the property for a junkyard without a permit, and outdoor  storage of vehicles, auto parts, appliances, construction material,  tires, trash and debris, which constitutes a public nuisance.”  When the  County brings charges and obtains a judgment based on them (as happened  in this case), the County cannot then argue “Oh, we know the charges  aren’t true.”

In response to John’s long 4:08 fax, Buchan, at 4:49 pm on July 15, sent  John an email, copies to Saylor, Corley, & Vlahovich:
“I would suggest appearing tomorrow at the hearing (1pm) and asking  the Hearig Officer if he will hear your testimony regarding the case. It  will be important for you to explain that you are not the owner. I don’t  know whether this will be allowed but in this case it it may be warranted.”

Obviously, this tended to create more confusion as to whether John could  or could not represent Donna at the hearing.  In the end, John conferred  with his internet advisor Bill Munro, and decided not to attend.  He  emailed Buchan at 7:01 am on July 16, the morning of the hearing:
“I am advised the following…..
“not to attend the Hearing as Ms Mercer has not dismissed the legal  action brought forth on 5/20 with Chris Saylor, zoning
enforcement officer.
“The 40 year use of the property is grandfathered, no question.
“That the County should withdraw the violation as there is none.
“It appears that your previous email in which you advised that ‘we  cannot consider you a representative of the property……. it has to be  the owner or legally designated agent, by statute’ was correct and that  Ms Mercer or her legally designated agent or the representative for  planning and zoning are the only ones who can ask for dismissal.
“the wisdom of my councel is (as mentioned above) no doubt
in his mind that the use of the property is grandfathered.  if the  county is unclear about this he will be happy to talk to the County  Attorney on the matter. He suggests that Planning and Zoning ask the  hearing officer to dismiss the case until a clarification is reached.   If planing and zoning are not
willing to do this then I should allow Ms Mercers legal action to  continue to resolve the issue.
“I regret that I will not be in Bisbee today….After your last  email I had hoped that I would be able to attend and perhaps add some  positive testimony to help resolve the matter.
“I know that you and Jim will do what you can and appreciate your  thoughts and help.”

At 7:41 am on July 16, Buchan answered by email:  “Thanks John.  We will  relay this info to the Hearing Officer.”

Buchan’s email implies that she will take John’s representations to the  Hearing Officer; in short, that John would, by Buchan’s work as an  intermediary, be representing Donna at the hearing.  Could the situation  be more confusing?

VI.  DEFAULT JUDGMENT, AND POSSIBLE RELIEF FROM JUDGMENT

The hearing proceeded as scheduled, at 1 pm on July 16, before Hearing  Officer Jack Chapman.

Buchan, as she had promised, did give Chapman “this info,” not just  John’s email of 4:49 pm on July 15, but also much more.  The order,  entitled “Default Order,” which Chapman issued at the hearing, noted  that “A series of E-mails, dated from June 8, 2009 to July 15, 2009,  between John Roberts, Susan Buchan, Donna Mercer and Jim Vlahovich is  appended herewith and made a matter of record in this case.  (Exhibit A)”.

However, the Default Order mentions only emails, not faxes.  It says  nothing about John’s faxed “Answer” discussed in Section V.C above.  The  emails set out some of the material contained in the “Answer” and  related material, but not all of it, and not in such detail, as does  John’s fax.

Even if Buchan gave Chapman not just all the emails, but also the fax of  July 15, it is clear that Chapman did not consider their contents.   Chapman’s Default Order found that “The Respondents having failed to  appear at the hearing are deemed in default.  Therefore, the allegations  of the Complaint are deemed admitted, and this order is issued as  written and the parties are so notified.”  Financial penalties were  ordered as discussed above.

Legally, the judgment appears susceptible to attack in several ways.

Hearing Rule 16(a) says:  “If the defendant fails to appear at the  hearing as provided by these rules, the allegations of the Complaint  shall be deemed admitted, and the hearing officer shall enter judgment  for the County, and impose a civil sanction and report such judgment to  the zoning inspector and the defendant.”

Under that rule, a hearing officer has no choice.  However, a local rule  may be challenged for inconsistency with state law.  The state “law”  that may conflict with Hearing Rule 16(a) is Civil Rule 55, a rule that  governs default judgment in civil courts.

In particular, Civil Rule 55(a) says that “When a party … has failed  to plead or otherwise defend as provided by these Rules, the clerk shall  enter that party’s default ….  A default shall not become effective if  the party … pleads or otherwise defends as provided by these Rules  prior to the expiration of ten (10) days from the filing of the  application for entry of default.”

Under Civil Rule 55(a), Chapman should not have issued default judgment  against Donna, because she did “plead or otherwise defend.”  Emails to  and from Saylor, Buchan, and Vlahovich are full of statements from John  that he was representing Donna, and stating her defenses; Buchan’s last  email to John was that she would present “this info” to the Hearing  Officer; and the Hearing Officer’s Default Order mentioned his receiving  this material.  If Chapman read what he received, he could not have  issued default judgment.

Also, Rule 55(b)(2) adds that when the amount of the judgment is not  certain, “no judgment by default shall be entered against an …  incompetent person unless represented in the action by a general  guardian, or other such representative who has appeared therein.  If the  party against whom judgment by default is sought has appeared … that  party or [her] representative, shall be served with written notice of  the application for judgment at least three days prior to the hearing on  such application.”  The emails which Hearing Officer Chapman received  set out facts from which a reasonable person would be almost compelled  to conclude that Donna was, at the time of the hearing, incompetent to  participate, and that the Department had been negotiating with John as  Donna’s representative.

Finally, Rule 55(c) states that “For good cause shown the court may set  aside an entry of default and … may likewise set it aside in  accordance with Rule 60(c),” which allows “relief from judgment” based  on “(1) mistake, inadvertence, surprise or excusable neglect …; (3)  fraud [or] misconduct of an adverse party; (4) the judgment is void; (5)  … it is no longer equitable that the judgment should have prospective  application; or (6) any other reason justifying relief ….  The motion  shall be filed within a reasonable time, and for reasons (1) [and] (3)  not more than six months after the judgment ….”  Civil Rule 55(c) is  consistent with County Rule 18(b):  “At any time the hearing shall set  aside a default judgment entered upon failure to appear … for any  other reason where necessary to prevent manifest injustice.”

The County’s sudden shift about representation the day before the  hearing, creating great confusion from then until the hearing, may  justify vacating the judgment under Civil Rule 55(c)(3).

John’s agreement to July 15′s surprise statement by the County that he  could not represent Donna during the hearing would, if done by a lawyer,  constitute ineffective assistance of counsel, which can be a reason for  relief under Civil Rule 55(c)(1).  Cannot Donna be granted relief for  that mistake by a non-lawyer?

And of course, with the property’s use grandfathered, as was shown at  the beginning of this article, the County had no legal authority to  prosecute it as a zoning violation, so relief from judgment is  appropriate under Civil Rule 55(c)(4).

Those are immediate reactions by this writer.  An Arizona attorney could  probably discovered more grounds for relief.

Donna did not appeal within 10 days, the deadline stated in the forms  which the County gave to her.  However, County Rule 18(b) says “At any  time the hearing shall set aside a default judgment entered upon failure  to appear … for any other reason where necessary to prevent manifest  injustice.”  County Rule 18(b) applies even if a county form doesn’t  mention it.  The County’s conduct in this matter, from beginning to end,  is a manifest injustice, for which the legal system does provide  remedies — though the County should not force a lawsuit by stubbornly  holding on to an unjust result.

VII.  CONCLUSION

The right thing for the County to do is vacate the judgment.  After  that, the County can either let Donna Mercer handle the property as she  wishes — which will end the property use that the County now objects to  — or the County can set another hearing, this time with no confusion  about who is allowed to represent Donna, with exhibits and testimony  from Vlahovich, Saylor, Roberts, Donna, and others.  Is there any  principled reason why one of these two routes can’t be taken?

The County presently has the upper hand, because of the unfair default  order, but the County should not use its temporary advantage to pressure  Donna to accept an unjust result.

Will the County take the first step toward a compromise, by vacating the  judgment?  That may depend on what the public says.  The County  Supervisor for the district is Richard Searle, whose email is
rsearle@cochise.az.gov
Susan Buchan’s email is
sbuchan@cochise.az.gov
Contact information for more County employees is available at

http://littlebigdog.net/ccipra.htm

It’s been a long ride.  The suffering of at least some residents near the Faria Dairy is clear.  Supervisor Searle may wish that he had not told Sebastiao Faria to go ahead and build the pens.  Deputy County Administrator Vlahovich may wish that he had not presumed to instruct the judge about the law.  Attorney Hanson may wish he had resisted filing Vlahovich’s affidavit, and that he had put more evidence into the record.  The Farias seem to have the better of many of the legal arguments, but the case is not a “slam dunk” for either side.  The oral arguments on May 20 before the appeals court should be very interesting.

The agenda for Cochise County’s regular Board Of Supervisors (BOS) meeting at 9 a.m. Tuesday, January 13, was posted on Friday, January 9, sometime between 5:30 and 7:30 p.m., at

http://www.co.cochise.az.us/ccwebsite/BOSAgenda.asp?MeetingID=1002

In the Public Hearing items, Item 14 is “Adopt Ordinance 037-09, (Docket R-08-03) amending ‘Cochise County Planning and Zoning Fee Schedule’ and the Cochise County Highway and Floodplain ‘Use of Public Rights-of-way Fee Schedule’ found as Attachment A of Ordinance 035-06.”  This is the attempt to use improper procedures to set illegal fees.  Here’s the writeup about this presented to the Supervisors at the 9 a.m. meeting on Tuesday, January 6.  At the meeting a week later, on January 13, the supervisors adopted the fees despite their illegality.

I. Introduction

The county Planning Department wants to impose some new fees on the public. The procedure used to advance the fees has been “unusual,” and the fees are illegal. On January 13, the Board Of Supervisors is scheduled to have a public hearing on the latest version of the proposed fees.

Section II, below, discusses procedural problems; Section III discusses the illegality of the fees; Section IV is a conclusion; and Section V contains the “Notes” mentioned in the discussion.

II. Improper Procedure

On August 13, 2008, the Planning & Zoning Commission approved some new and changed fees that the Planning Department, and the Highway & Floodplain Department, want to charge the public (Note 1 has internet links to the official agenda and minutes). The proposed fees were presented by Planning Department employee Susana Montana, who has made every presentation in this matter for the Department.

The agenda for August 13 said that if approved, the matter would have a public hearing at the Board Of Supervisors on September 9. Instead, a Board work session was set for Tuesday, October 7. It is not clear how the agenda was changed, since the Board did not do so at any meeting.

State law requires the Commission to transmit all of its actions to the Board (Note 2 has the statutory language). The Department has the clerical task of transmitting the Commission’s actions to the Board. On October 2, the Friday before the October 7 work session, Department employee Montana circulated an email stating that she would bring paper copies of the proposed fees to the work session (Note 3 has the email’s addressees).

Early Monday, October 6, the day before the work session, Deputy County Administrator James Vlahovich sent Montana an email asking “Based upon all of the fee schedule changes proposed (and some recently added since the last Commission meeting as I recall), do we need to go back through the Commission?” (see Note 4).

41 minutes later, Montana emailed an answer saying “The current version of the fee schedules differ from what the Commission recommended on August 13th” in seven ways (though actually, there appear to be many more than seven differences; see Note 5).

Just five minutes after that, Vlahovich (to whom Montana does not report) requested Montana to “inform the Board that we will need to go back through the Commission on the fee schedule changes since some are new fees and some are greater than what the Commission approved.” Vlahovich’s order implicitly approved the Department’s not transmitting what the Commission passed.

At the Board work session on October 7, Montana obeyed Vlahovich’s order and told the Board that “we reviewed this twice with the Planning and Zoning Commission … we took it back to them, we recalculated some hours that we spent on projects. And since that time we’ve recalculated it again, so we will be going back to the Planning and Zoning Commission tweaking [?] dollar amounts a little bit” (transcribed from a recording of the meeting; some words difficult to hear).

Montana’s oral statement included just slightly more information than the written packet she provided to the Board. Immediately after the work session, Montana gave me a copy of the packet. It noted many changes to existing fees, without indicating which changes were, or were not, what the Commission approved in August.

During the meeting, Montana acknowledged that the Department had changed what the Commission approved. Montana stated “we went back and reviewed the numbers and did some recalculations as to how many hours for each of the skill levels … and since that time, since August, we decided that rather than having separate fees for the subdivision committee meeting, which is required, we would put that into the initial tentative plat and final plat fee so it’s not separate. So that’s one change we’re taking back to the commission” (transcribed from a recording of the meeting).

Though Montana acknowledged that the changes she presented were not what the Commission approved, she did not tell the Board which had been approved by the Commission, and which had been made later by the Department. The Board did not see what the Commission voted to approve; the Board saw a Department rewrite of what the Commission approved.

On December 10, two months after the October work session, the Department returned to the Commission with more modifications to the fee proposals.

Before Montana’s December 10 presentation to the Commission, I asked her if she had, at the October work session, presented just what the Commission had approved in August. Montana said she could not answer. After Montana’s presentation, during public comments, I stated that it was unacceptable for the Department not to be able to say that it accurately transmitted an item approved by the Commission. After public comments were closed, Commission chairman Corey asked Montana “The Board did see the documents we sent forward, our recommendations, they did see those, what we recommended, then you went through and changed some fees?” Montana answered “Yes” (transcribed from a recording of the meeting), despite her failure to answer when I asked.

Montana’s “Yes” answer was surprising, since during her presentation to the Board (back in October) she acknowledged that the changes she was presenting were not what the Commission approved. The Board did not see what the Commission voted to approve; the Board saw only a Departmental rewrite. In light of this, it is not clear why Montana answered “Yes” to Corey’s question.

At the Board’s public hearing on January 13 (if the hearing is not cancelled again), it is hoped that the Board will see exactly what the Commission passed on December 10. Also, however, it is clear that the Board cannot rely on Departmental representations to that effect; and it is hoped that the Board will find a way to exercise genuine and effective oversight of county employees on this occasion and all future occasions.

III. Illegal Fees

A. Policy Arguments

The Department wants citizens to pay fees to cover the time that employees spend on the jobs they were hired to do, and to cover other general expenses that are the result of having any government at all. However, citizens already pay for “overhead,” through taxes, bonds, loans, or other devices. The Department is trying to charge citizens twice for being governed once.

This double-charging is especially obnoxious in Cochise County, where the average income is low, yet many Department jobs pay from $40 to $70 per hour — so the fees would make poor people not just pay twice, but also pay far more than they themselves typically earn. Also, as county salaries increase, so will the fees aimed at recovering the cost of county salaries.

The Department has stated that such fees are aimed only at real estate developers. It has been suggested that rural people should not care about extra fees to developers. People realize, however, that if the Department can charge one set of people with illegal fees, the Department will eventually get around to charging illegal fees to ordinary citizens.

B. Legal Arguments

Arizona Revised Statute (“ARS”) 11-251.08 lets a county charge for “specific products and services” to the public, but the fees “must be attributable to and defray or cover the expense of the product or service,” and “shall not exceed the actual cost of the product or service.”

By definition, “overhead” is not attributable to a specific product or service. If an expense is attributable to a specific item, the expense is not “overhead.”

Therefore, ARS 11-251.08 does not allow a county to charge fees for “overhead.”

Originally, in August, the Department’s description said straight out that the proposed fees included charges for “overhead,” and Montana’s slide show and documents made clear that “overhead” included employee salaries, benefits, etc. In an email to me, Montana said that “overhead cost includes … indirect costs of County Administrative support including, among others, of Human Resources/Payroll, insurance/risk management, utilities, facilities operation and maintenance, finance, treasurer and County Administrative staff. All of the overhead needed to support an application can be included in the fee as the ‘actual full cost’ of the application” (email, 8/19/08).

I answered that “If I read your email correctly, you’re saying that you could simply relabel such overhead as a direct cost, and justify the proposed fees that way. If I’m not reading you correctly, please let me know, because it seems to me that if you agree that the items we’re talking about really are overhead … it would be wrong to relabel them as a direct cost. The statute clearly doesn’t want overhead passed on to individuals as a fee…. Thanks for your consideration” (email, 8/19/08).

Montana did not respond. On October 6, the day before the Board work session, she emailed me that she would “forward your comments to the Supervisors now and will print copies of your comments and hand them out at the session.” However, at the work session on October 7, my comments were not in the packet that Montana gave to me, and when I spoke about the illegality issue, some county employees appeared surprised by the issue.

At the October 7 work session, Montana acknowledged that the proposed fees included “salary plus benefits for each of the staff persons … plus department overhead calculated at 25% of salary and benefits, that’s department overhead, and county overhead which would include risk management, payroll facilities [?], insurance, finance and treasury [?] costs, and that amounts to about 30% of staff salary” (transcribed from a recording of the meeting; some words were difficult to hear). In short, some of the proposed fees included little or nothing except overhead (information about some specific proposals is in Note 5).

On October 7, after the work session, I sent an email to Searle, Call, Buchan, Montana, and County Administrator Mike Ortega, stating my hope that when the matter came to the Board again, “the BOS will not merely obtain an off-the-cuff legal opinion delivered orally in the midst of a meeting, but will obtain a written opinion delivered well before the meeting, an opinion which I may see and reply to. I believe that since it is my suggestion that ARS 11-251.08 does not allow the fees at issue, that if the BOS receives a legal opinion in answer to my suggestion, that I should have the right to prepare a reply to the arguments in that answer. County counsel will hardly dispute that argument-answer-reply is a standard and fair form of argumentation.” However, my request has remained unanswered.

At the Commission meeting on December 10, Montana presented a reworked request for fees. The substance of the request had not changed, but the word “overhead” had disappeared from the written material, and the replacement descriptions were vague. The Department had rewritten its descriptions to dodge the issue of illegality. Whatever the Department’s reason for dodging the issue, the violations of ARS 11-251.08 remain.

Also on December 10, Montana stated, both orally and in writing, that the county auditor had found that the proposed fees were allowed by statute. During public comments, I noted that legality “is not a decision for the county auditor to make, that is a legal decision, and no attorney has been involved that the county has put on record.” A few minutes later, when Corey questioned Montana, Montana said that the county attorney — not the auditor, as Montana had just said at least twice — “has reviewed the fees and it is within the limitations of the state statute.” Montana provided no further discussion of the merits, nor did the county attorney in attendance (comments transcribed from recording of the meeting).

ADDITIONAL NOTE added January 14:  At the supervisors’ meeting on January 13, attorney Hanson advised the BOS that the county can charge fees to recover overhead, because of Paragraph A of ARS 11-251.08.  A little further down in that statute, Paragraph C says that to adopt a fee, the BOS shall hold a public hearing “with at least fifteen days’ published notice”–but the agenda for January 13 wasn’t posted until after the end of work hours on Friday, January 9, only 4 days before.  If Hanson read the whole statute before advising the BOS about what it meant, shouldn’t he also have told them that 11 more days’ notice was required for the adoption to be legal?  And what will the supervisors do if they look at the statute themselves — let Hanson tell them that the words don’t mean what they say?

IV. Conclusion

This problem gives the newly elected Supervisors a chance to turn a corner in county government. They can protect the integrity of the Board’s processes, by insisting on open, law-abiding county government. The Board should require the Planning Department, under its new director, to follow the law. This will do credit to the Board and perhaps enable the Department, under its new director, to regain the respect of rural residents.

V. Notes

Note 1: The official agenda for August 13, 2008, is online at

http://www.co.cochise.az.us/P&Z/Agenda/2008-08%20PZ.htm

and the official minutes are at

http://www.co.cochise.az.us/P&Z/PNZMinutes/2008-08%20PZ.htm

Note 2: The Commission must transmit “all of its recommendations, decisions, findings, reports and official actions, regardless of vote, to the board of supervisors,” ARS 11-804.A.4.

Note 3: Montana’s email went to Board Clerk Katie Howard, James Vlahovich, Susan Buchan, Benny Young (head of the Highways & Floodplain Department), and Patricia Morris (Young’s deputy).

Note 4: Vlahovich’s email went to Montana’s list, and also to County Administrator Michael Ortega (Vlahovich’s boss).

Note 5: Some “overhead” items in the proposed fees. The entire text of the latest proposed fees is available (but not on line) from the Planning Department. It’s very hard to compare all the versions in an organized manner, because the Department has made so many changes in what the Commission approved, and in the format of the presentation.

– a. The October and December proposals include two paragraphs increasing the fee “for Subdivision Tentative Plat applications from $500 and $20 per lot to $650 and $20 per lot to cover the costs of staff participation in one required Subdivision Committee Meeting” and “for Subdivision Final Plat applications from $500 and $10 per lot to $650 and $10 per lot to cover the costs of staff participation in one required Subdivision Committee Meeting”. These figures conflict with the Department’s August 13 memo to the Commission, which said “The fee … is, and will remain, $500 plus $20 per lot”.

– — i. The increases to $650 from the “will remain $500″ figure may be a result of “folding in” (and increasing by $25) a fee in the August version, described by the Department as “for County staff attendance [of] $125 per meeting [including] salary, benefits and administrative overhead”. The October and December versions avoid saying “overhead,” but that does not change the reality that the fee is for “overhead” so violates ARS 11-251.08.

– — ii. Also, the fee is not based on actual cost. A fee of $2650 for a 100-lot project (at $650 base fee plus $20 per lot) becomes $5310 for a 233-lot project, though the county doesn’t do twice as much work for the larger project. A fee not based on cost violates ARS 11-251.08.

– b. October and December proposal: “increase the H&F and P&Z fee for County staff review of improvement plans from $125 … to $126 per sheet”. The Department’s August 13 memo said “$158 per sheet, [which] covers … salary, benefits and administrative overhead”. Even if an increase has been dropped from $158 to $126, the amount still includes items which amount to double taxation and violate ARS 11-251.08.

– c. October and December proposal: “establish a new H&F and P&Z fee for County staff review, analysis, comment and coordination of comments of drainage reports, traffic analyses and other engineering reports associated with applications for subdivisions, non-residential development plans and improvement plans, Master Development Plans, Comprehensive Plan amendments, complex rezonings and special use permits, if applicable. The fee for staff review of drainage reports or similar engineering reports would be $350 for the 1st and 2nd review plus $116 for each additional review of revised reports. The fee for staff review of a Traffic Impact Analysis or traffic study would be $320 for the 1st and 2nd review plus $107 for review of each revision”.

– — i. This appears to include a revision of items in the original August proposal which stated: “$668 for the first and second review … plus $116 for the review of each subsequent revision [which the Department said] covers … salary, benefits, and administrative overhead” — an explanation which showed that the fee included overhead, in violation of ARS 11-251.08.

– — ii. This also appears to include another part of the August 13 proposal: “The … Transportation Planner … reviews subdivision-related and development-related TIAs [and] coordinates … with [ADOT] when developments affect or [may affect] roads or air traffic …. [This] typically requires 4 hours … for the first review and 2 hours for … each revised report. The proposed … fee [is] $320 for the first and second review [and] $107 for review of subsequent revisions.” These figures work out to about $53.50 of employee wages per hour, or $100,000 per year — evidently greater than the actual wages, and in violation of ARS 11-251.08.

– d. New proposal: “establish a new H&F fee for required weekly meetings in the field with County staff and subdivider’s engineers and contractors to review construction of subdivision improvements subject to self-certified Improvement Plans at $100 per meeting with a maximum of $1,000 for subdivisions with 27 or fewer lots. If the County Development Engineer must attend the meeting, an additional fee of $123 per meeting is required”.

– — i. The $65 per meeting fee that the Commission approved in August is now $100. Was the Department just sloppy originally, or is the raise only to collect more money?

– — ii. These fees can often exceed the costs involved. There is no set duration of inspections, so a half-hour inspection could be followed by a half-hour drive to another site. Six such inspections a day would bring in $600. But if a day’s work cost the county $600, a field inspector’s salary would be about $150,000 per year — over twice what a county supervisor makes. Using fees to collect amounts that exceed costs is precisely what is prohibited by ARS 11-251.08.

– e. Miscellaneous other items, all in a day’s work, for which the Department proposes fees, even though citizens have already the expense of these items via taxes, etc.

– — i. For subdivision phase inspection, increase from $50 to $100 per inspection, up to $1000 for small subdivisions.

– — ii. For county staff participation in second and subsequent subdivision committee meetings, $150 per meeting.

– — iii. For staff participation in comment resolution meetings, $150 per meeting.

– — iv. For special inspections, increase from $50 to $100 per inspection.

– — v. For non-subdivision improvements intended to be public, increase from $50 to $100 per inspection.

– f. A variety of fees, typically $350 per to $500 per item, for outside consultants. These fees accrue only when the county staff is “unable” to do its own job.

UPDATE:  After receiving an email with the above, a person with a fair amount of inside knowledge about county government, who sensibly wishes me to keep his or her anonymity, writes “The reason the County wants to raise the cost of reviewing subdivision plats is because they are currently having the reviews done by an engineering firm out of Phoenix, who is charging them $150 to $250 per sheet.  So the County is actually losing money per sheet.”  (If you look at the above writeup, this issue is in the very last paragraph.)

So much was known.  What wasn’t known was the rest of today’s leak:  “I know for a fact that there are local engineers in this County who are willing to perform these reviews for $100 per sheet or less.”

If that statement is correct, then the county could spend only half the money on consultant fees, and keep the money inside the county, instead of letting it trickle to Phoenix.

Spending less, and keeping it inside the county, sounds like a real obvious way to cut down on county expenses, and take the pressure off the need for more budget cuts.  Why would an item like this not be number one on the county’s agenda?

ANOTHER INCOMING EMAIL includes the following great comments:
There is a reason Cochise County is the poorest county in the state, and that reason is located at 1415 Melody lane in Bisbee.  If we want to have governance by the residents of this county, we need to unseat the entrenched officials and county employees that stand in the way of “we the people”.  Societies that do not grow and prosper…… wither and die. (How many ghost towns do we have in Arizona??????)
In this economy, all levels of government and private enterprise are scrambling to find money in order to survive.. We cannot fault them for that, but they need to do it within the confines of law.
As for the increase in fees that they want to saddle us with, another confirmation that supports actual costs and not overhead is found in the Public Records Laws.  Essentially, it says that charging for anything except the actual production costs of copies is in violation of State law.. From the Arizona Public Records Law booklet put out by the Ombudsman’s Office at http://www.azag.gov/Agency_Handbook/CHAPTER%206.pdf
6.5.4    Non-Commercial Use. A person requesting copies, printouts, or photographs of  public records for a non-commercial purpose may be charged a fee for the records. A.R.S. § 39-121.01; but see Section 6.5.6 infra. An agency may charge a fee it deems appropriate for copying records, including a reasonable amount for the cost of time, equipment, and personnel used in producing copies of records, but not for costs of searching for the records. A.R.S. § 39-121.01(D)(1); Hanania v. City of Tucson, 128 Ariz. 135, 624 P.2d 332 (Ct. App. 1980); Ariz. Att’y Gen. Op. I86-090.
When the government takes our hard earned money and uses it to pay an attorney to do us damage, that government is out of our control and we are all in trouble.  (Britt Hansen has to go!)   Do you know of a legal beagle that is willing to slap their hand in court?  They are obviously not listening to us.

I have to wonder, why isn’t the county attorney advising the Board about this?  Do county attorneys view their job as enabling whatever county government wants to do, instead of keeping county government inside the law?

The agenda had one item:  ”Three-year Building Code review: Cost and effectiveness of Building Code for the County overall and Phase-In areas, actual data compared to projected data, challenges and successes.”  Here’s a commentary:

Cochise County should dump the rural building code.  Dumping it is long overdue.

To get the county supervisors to pass the code, the Planning Department made three promises, and a team of citizens and county personnel was supposed to evaluate how well the promises were kept.  The evaluation hasn’t happened, and the promises haven’t been kept.  The promises were that the code would save lives, cut insurance rates, and pay for itself within three years.

THERE’S NEVER BEEN A REAL EVALUATION

The county supervisors passed the code on December 14, 2004.  Supervisor Newman wanted an evaluation in about a year, by a team of citizens and county personnel including “the Supervisors, Planning & Zoning staff, County Attorney staff, experts in the field of building codes, builders and developers, and interested members of the public.”

Newman’s motion got no second, but supervisor Call jumped in to implement it by using a different parliamentary procedure.  According to the minutes, Call “agreed with the merit of a review … but did not feel that the Resolution needed to be amended….  During discussion Mr. Vlahovich stated that although he hoped six months would be sufficient time for his department to collect data for review, he would be more comfortable with nine months before the review and evaluation.  Chairman Call then changed the time frame to nine months,” and the supervisors passed the code.

The code was implemented in three “phases” a year apart, covering the area around Sierra Vista in 2005, the middle part of the county in 2006, and the east side of the county in 2007.

In 2006, just three days before the evaluation was due, Vlahovich told the supervisors that “he did not realize the motion required an evaluation prior to the implementation of the second phase.”  The supervisors delayed Phase 2 until a quickie report could be prepared.

The 2006 quickie report was prepared by Ron Durgin, who ran the code program and whose salary came from fees collected by the program.  He said nothing about the promises of safer homes, saved lives, or cheaper insurance.  He only said the program was collecting enough money to pay the costs of collecting the money.

After that quickie report, the supervisors set a real evaluation for a year later.  The deadline was July 6, 2007, but the supervisors let it slip to August 14.  Supervisor Newman objected to continuing the code program without having the evaluation that had been discussed when the code was passed; Searle would not discuss the issue, and moved on to hearing the report.

This report was another in-house report, this time by then-head of the Department Judy Anderson.  Anderson discussed the amount of fees collected by the program, and the types of “tickets” issued.  She found that the program had been and was still running at a loss, despite what Durgin said in 2006.

The supervisors again set a real review for a year, and once again, let it slip until October 6, 2008.  Once again, the report was a mere in-house report, again prepared by Mr. Durgin.

Durgin’s 2008 report is longer than the first two, but unlike a real evaluation, still does not test the promises about saving lives, cutting insurance costs, and paying its own way.

The in-house reports are discussed below.  The section headers, in capitals, summarize the reports, topic by topic.  For copies of the reports, call the Planning Department at 432 9240.

THERE’S NO EVIDENCE THAT THE CODE HAS SAVED LIVES

The Department has never even tried to show that the code has saved any lives.  The closest approach to that came in the 2007 and 2008 evaluations, which list “safety violations” found — many of them trivial — but offers no evidence that any of the violations would have caused actual problems, much less cost lives.

The county could have tested this promise by comparing the rate of accidents and injuries in rural areas covered by the code, with the rate in rural areas outside code coverage.  Or the county could compare the rates of medical and fire emergency runs before and after the code.  The county hasn’t even tried.

Meanwhile, what was passed as a “Building Code,” the county now calls a “Building Safety Code,” as if the name conferred the game.

The combination of failing to test the promise of safety, and informally adding “safety” to the code’s name despite the lack of testing, is evidence of the intent to keep the code in effect even if it doesn’t deliver the promised benefits, just because government employees perceive it as a “good idea” in theory.

THE CODE HASN’T CUT INSURANCE RATES

Despite the promises in 2004 that adopting the code would lead to lower insurance rates in the county, the county had, as of 2007, not even tried to use the code to get lower rates for property owners.  This was stated in then-head Anderson’s 2007 quickie report.  She did not give any reason for this delay.

Now Mr. Durgin’s 2008 report says that since the entire county has been under the code for at least one year, “we have now begun the process to establish our initial ISO Building Code Effectiveness Classification.”  That is, the county currently has no rating.  But in 2004, Durgin told the supervisors that “Cochise County currently has the worst insurance rating given by the ISO.”

Because having the worst rating is different from having no rating, I asked Mr. Durgin, on October 9, about his comment that the county had the worst rating, at a time when it had no rating.  His answer came the same day.  Part of his answer implies that the minutes from 2004 were incorrect.  It says that at the meeting in 2004, he explained that good ISO ratings lead to reduced homeowners insurance rates, but that if a community either has the worst ISO rating or is not rated at all, the result is no reduction in rates.  This part of his answer implied that the secretary garbled what he said.

But the minutes are presumed to be accurate, the secretary had no reason to make them inaccurate, and they were approved by the Board Of Supervisors not long after they were written; so it’s hard for Mr. Durgin to dispute their accuracy based on his recollections almost four years later.  Durgin’s answer makes his challenge much harder, by adding “I would feel that a zero percent reduction would be a most unfavorable outcome of this program under either of those classifications ….. or maybe even the worst rating.”  That sentence, confused and hard to understand as it is, doesn’t show that the secretary heard Durgin wrong in 2004.  I believe it’s most reasonable to follow the minutes as written, and conclude that Durgin did tell the supervisors that Cochise County had “the worst rating.”

There is no need to ascribe conscious malice to Mr. Durgin, only his great desire to see the code program put in place.

THE CODE HAS NEVER PAID FOR ITSELF

Mr. Durgin’s quickie report in 2006 said that the program was paying its own way.  In 2007, however, Anderson’s report showed that in 2006/7, the fees & fines collected by the code program were about $252,000 less than the program’s expenses.  Page 5 of the 2007 report, in the table “Building Division Revenues & Costs (through May),” shows $636,000 in revenues and $888,000 in costs.

There are two odd things about Anderson’s statement.  In 2007, when it was made, the Supervisors didn’t react to being misled in 2006; and in 2008, Anderson’s successor asked “If we are truly running this high a deficit, should we talk about raising valuations?” (email, 7/16/08.  The “valuations” are Department estimates of the cost of construction.  They are used for setting some fees, are set rather arbitrarily, and evidently can be raised arbitrarily too.)

The program’s deficit has continued, although that’s hard to tell from Durgin’s 2008 report, whose tables don’t present the data in the same easy-to-read format as Anderson’s 2007 report.

In Durgin’s report, the income for 2007/8 is in p. 9’s “Planning Department Revenue Activity” table.  It was $453,000.  That’s about $160,000 less than the income for 2006/7.

But the expenses for 2007/8, in p. 10’s “Planning Department – General Expenses” table, are organized in a way that obstructs any direct comparison with Anderson’s report for 2006/7.

It is not clear why, in a report that should enable comparisons between different years, the data are arranged in a way that hinders comparisons.

However, no matter how the data are arranged, it’s clear from p. 10’s “General Expenses” table that expenses didn’t change much between 2006/7 and 2007/8.  The table shows that for the Department, expenses were up about $54,000, out of a $1.49 million total.

Expenses for the Divisions didn’t change much either:  Planning up about $13,000 out of a $600,000 total, Zoning up $35,000 out of $417,000, and Building up $5000 out of $475,000.

Finally, expenses didn’t change much in any of the three categories within each Division:  for Planning, the categories are up $1000 out of $433,000, down $2000 out of $21,000, and up $17,000 out of $136,000; for Zoning, up $36,000 out of $407,000, down $1000 out of $2000, and down $400 out of $8000; and for Building, up $11,000 out of $445,000, up $400 out of $3000, and down $6000 out of $27,000.

Those are the smallest details that Durgin’s report delivers, and what these details show is that in every category, and every scale of operation, expenses didn’t change much between 2006/7 and 2007/8.

Since expenses are about the same, $160,000 less income implies $160,000 more deficit.  Since last year’s deficit was $252,000, this year’s deficit is about $412,000.

And here’s the financial history of the program.  The deficit for a half-year of codes in 2004/5 was $216,000.  The deficit for 2005/6 was $64,000.  The deficit for 2006/7 was $252,000.  The deficit for 2007/8 was $412,000.

Those figures aren’t cumulative; those are separate figures for each time period.  That means the running total deficit so far is $944,000.  At any time it may reach $1,000,000.

That’s a far cry from what Mr. Vlahovich promised in 2004:  “The start up cost for the entire program, including Mr. Durgin’s salary would be $540,000 and the ongoing cost would come to $400,000 per year.  The plan assumed a 32% increase in permit fees, a 2% annual growth rate, and a 10% increase in permit activity.  Assuming these figures, the plan would pay for itself in about 3 years and only be subsidized by the General Fund for the start-up period.”

Vlahovich’s predictions of increased grown and permit activity are equally bad.

Building activity is undergoing a major and steady decline.

For manufactured homes, there were 401 permits issued in 2004/5, 380 in 2005/6, 366 in 2006/7, and 232 in 2007/8.  Mr. Vlahovich predicted 534 permits in 2007/8, over double the real number.

For stick-built homes, there were 565 permits issued in 2004/5, 481 in 2005/6, 356 in 2006/7, and 184 in 2007/8.  Mr. Vlahovich predicted 752 permits in 2007/8, over four times the real number.

Other types of permits (additions, remodeling, accessory structures, etc.) have increased, in part because people are remodeling because they can’t afford to build new.  Permits for additions and remodeling show a steady increase:  292 in 2004/5, 429 in 2005/6, 462 in 2006/7, and 573 in 2007/8.  But even with these increases, the total number of permits was 2094 in 2004/5, 2189 in 2005/6 (the peak year), 2083 in 2006/7, and 1779 in 2007/8.  The trend is downward.

The grotesque errors in Mr. Vlahovich’s predictions cannot be attributed to any malicious distortion on his part, merely to a rosy worldview that things are generally good and will keep getting better, and that the best thing to do with bad news is ignore it and wait it out.  But ignoring reality is not a good basis for predicting the future.

Mr. Durgin suggests two reasons for the program’s reduced income:  the housing slump, and lost fees because since being passed, the code was modified to require fewer permits than it did at first.

The housing slump is a fact, which planners should have taken into account as it developed, without waiting for it to turn into a collapse.  The code program’s viability disappears during a housing slump.  This should have been acted on years ago.

Lost fees don’t account for the deficit, and the deficit can’t be cured by raising fees.  Mr. Durgin suggests a $60,000 loss because owner-builders opted out of the program, plus an unstated loss because of fewer permits being required for people to make repairs to their own home.  However, fees would have to increase by $412,000 to cover the latest deficit.  It is politically impossible to increase the fees by that amount.

In short, Mr. Durgin’s after-the-fact explanations are of no practical use in curing the deficit.

Financially, the code program cannot be salvaged.  Despite Vlahovich’s and Durgin’s high hopes in 2004, the code program has developed not necessarily to the county’s advantage, while the financial trends of the world have all turned against it.

COUNTY GOVERNMENT IS OVERLOOKING WHAT IT SHOULD BE OVERSEEING

When the code program was passed, Mr. Vlahovich and Mr. Durgin made promises which sounded good.  But the promises have not been kept.  Some promises were broken by a conscious choice, and the promise that the code would pay for itself has been broken because the world has changed in unexpected ways.  It is irresponsible for the supervisors to continue the program merely because they once heard rosy promises about it.

Yet the supervisors have ignored all of the many indications that the program was simply not working.

From the beginning, the Supervisors have accepted botched work when the code program was involved.  Two reviewing boards mandated by law were not created when the code was passed.  Attorney Britt Hanson blamed this (somehow) on Cochise County’s not having a building code until 2005 (SV Herald, 7/14/08), but the Department’s presentation to the Commission contradicted Hanson.  The program has always been a confused, confusing, unpopular, rebel-rousing, money-losing mess.

Supervisor Call’s liking for the program is easy to understand.  His loyalties are to big developers, and those who make money from big developments.  Those people want a county building code.  One of their shining lights, Mr. Tom Heckendorn, even urged that building codes should be identical in remote rural areas as inside Sierra Vista.  That’s the bugle Call rallies to.

As to the other supervisors, Searle remains under Call’s influence and has alienated so many rural voters that he’s in a fair way to lose to Sharon Thomas.  Newman has been ineffective and isn’t running for re-election.

Many of the candidates — District 1’s Chris Campas, District 2’s write-in John-Henry Piotrowski and Republican Harvey Allen, and District 3’s Sharon Thomas — have voiced dissatisfaction with the code.  The next Board may finally do what’s right:  give the code an honest evaluation based on reality — and dump it.

http://www.svherald.com/articles/2008/07/14/news/doc487aea71ebdd0010012488.txt

According to the Herald story, the Commission will vote on an ordinance to establish a board that will give advice about the county building code.  Such a board is required by state law.  The story quotes the statute, but doesn’t name it.  The statute is Arizona Revised Statute 11-862.

All statutes mentioned in this article are available online at

http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=11

The Herald story says the board will also “hear disputes over the county building code” and make final decisions.

The story raises at least five more issues.

WHY WASN’T THE BOARD CREATED WHEN THE CODE WAS PASSED?

The Herald story says the board is “required by an old Arizona statute. The reason [the board] is being formed now instead of 30 years ago when the state statute was passed is that Cochise County did not have an official building code until January 14, 2005, explained Chief Deputy County Attorney Britt Hanson.”

Obviously, county ordinances must comply with state statutes.  Keeping county ordinances in line with statutes is one of the jobs that county attorneys are paid to do.

Also, the story quotes Hanson as saying “Cochise County did not have an official building code until January 14, 2005 ….”

However, according to the minutes of the December 14, 2004, meeting where the Supervisors adopted the new code, James Vlahovich (then Planning Department head, now Deputy County Administrator) said “Cochise County has two limited enforcement areas around Sierra Vista and Benson and uses the 2000 International codes.”

It remains unclear why the board wasn’t created when the code was passed.

IS THE ENTIRE PROCESS UNFAIR TO THE PUBLIC?

The Herald story adds “Hanson said the commission’s vote of approval to proceed was just a courtesy.  ‘In the future, I’d recommend it to go on the agenda as an action item,’ ….”

However, creating a combined “advisory/appeals” board is not so routine that it should be treated as an “action item,” meaning an item where public discussion is not allowed.

One complication may be a difficulty in distinguishing appeals that should go to this board, from appeals that should go to a Board Of Adjustment.

Another problem is that state law, ARS 11-862, allows “an advisory board … to determine the suitability of alternative materials and construction and to permit interpretations of the provisions of such
code.”  That law doesn’t mention sitting as an appeals court.

State law does let the Board Of Supervisors assign duties to the advisory board.  However, if the extra assignment includes acting as an “appeals court,” then the board will be deciding appeals from its own interpretations.

It seems basically unfair, when a citizen disagrees with an interpretation made by a board, to make the citizen appeal to the same board.  The procedure is rigged against the citizen.

CAN THE COUNTY ENFORCE REGULATIONS IT’S PASSED TO ENFORCE THE CODE?

State law lets Supervisors adopt a building code if a county “has adopted zoning pursuant to this chapter” (ARS 11-861.A). However, state law also says “Any code adopted pursuant to this article shall contain a provision for an advisory board” (ARS 11-862.A).  “This article” means the set of statutes governing building codes, and “shall” makes this provision mandatory.

The Herald story makes it clear that the county building code did not include a provision for an advisory board.  Therefore, was the code actually adopted “pursuant to” the governing statutes?

If not, can the Supervisors adopt rules and regulations to enforce the code?  State law (ARS 11-863.B) lets the Supervisors “adopt necessary rules and regulations for the enforcement of any code adopted under this article” — but not to enforce a code that wasn’t adopted “under” this article.

If the county has been enforcing rules and regulations that it had no authority to pass, what becomes of all the prosecutions pursued, orders made, and fines collected?

In reality, it is more likely than not that the building code can, despite its failure to include the mandatory advisory board, be considered as adopted “pursuant to” the governing statutes.

However, “more likely than not” is not a high standard, and the consequences of a negative answer would be disastrous for the county. Therefore, the Supervisors might consider obtaining an authoritative answer to this legal question.

The supervisors shouldn’t ask the County Attorney’s office to evaluate its own work, especially since that office didn’t do its job when the ordinance was passed.

It would appear prudent to hire outside counsel, independent of the County Attorney’s office, with no involvement in county politics. Perhaps some adjustment could be made to the County Attorney’s budget, to pay for an investigation which wouldn’t be needed if that office had done its job when the ordinance was passed.

IS THE PLANNING DEPARTMENT BUILDING BIAS INTO THE EVALUATION OF THE CODE?

The Herald story says “Ron Durgen, county building inspector, will be forming the list of possible appointees” to the advisory board.  (Durgin is how the name is spelled.)

Durgin is also named, in a July 16, 2008 email from the Planning Department, as the person who is preparing a work session on the building code.

However, Durgin’s history indicates strong partiality in favor of the code.

In 2004, when the supervisors were discussing the code, Durgin was one of the people who made promises in order to get the code passed.

One of Durgin’s promises was that the code would “have a positive impact on property insurance rates.”  However, as of August 14, 2007, Judy Anderson (then Planning Department head, now retired) admitted that the Department still hadn’t asked any insurance companies about lower rates.

Durgin was also involved in bypassing another promise made in order to get the code passed.

At the December 14, 2004 meeting, before the vote was taken, Supervisor Paul Newman moved to form a work group (the Supervisors, Planning & Zoning staff, County Attorney staff, building code experts, builders and developers, and members of the public) to develop a recommendation on how to implement the code in “Phases 2 and 3,” areas not close to Sierra Vista.  Newman’s motion got no second.  According to the minutes, Supervisor Patrick Call “agreed with the merit of a review to study Phase 1 before the implementation of Phases 2 and 3 but did not feel that the Resolution needed to be amended.  He made a motion to keep the motion on the table in place but add a six-month review and evaluation process before the implementation of Phases 2 and 3. Supervisor Newman seconded the motion.  During discussion Mr. Vlahovich stated that although he hoped six months would be sufficient time for his department to collect data for review, he would be more comfortable with nine months before the review and evaluation.  Chairman Call then changed the time frame to nine months.”  That’s the motion that was passed.

“Phase 2″ was to begin on April 1, 2006, but on March 28, the Supervisors voted to delay Phase 2 because no evaluation had been carried out.  In the interim, the Supervisors set an in-house report by the Planning Department for April 18.  Ron Durgin was chosen by the Department to deliver the in-house report.

Durgin, during this period, appeared very solicitous of pro-code groups like the Southeast Arizona Contractors Association (“SACA”).  On March 1, Durgin emailed Lynn Mattingly, the chairman of a SACA committee, saying “I will list some of the highlights of the regulation below in the hopes of bringing you and the members of SACA up to speed on where this issue has gone since we last presented it to the group,” “let me know if you have any questions or concerns that I can help with,” “I will also be available at your March 15th General Meeting to answer any questions … on the new regulation,” and “this would not be presented to the Board of Supervisors until April 18th, allowing time for input from the SACA members if needed.”

Durgin’s work with SACA was not completely out in the open.  Durgin sent copies of his email to other SACA members, Judy Anderson, James Vlahovich, and Supervisor Call.  But Durgin didn’t send copies to Supervisors Richard Searle or Paul Newman.  On March 8, Mattingly answered Durgin, with copies to Anderson and SACA members.  But Mattingly didn’t send copies to Searle or Newman.

When Durgin delivered the April 18, 2006 interim report, it did not address any of the promises, including his own, that were made in order to get the code passed.  His report merely claimed that the code was collecting enough fees to pay the salaries of the people enforcing the code (including Durgin’s own salary).  If the code program had been paying its own way, that would have satisfied a promise made in order to get the code adopted.  According to the minutes from December 14, 2004, Vlahovich said “the plan would pay for itself in about 3 years and only be subsidized by the General Fund for the start-up period.”

But long after Durgin gave his in-house report, Judy Anderson, in another in-house report on August 17, 2007, produced data showing “building code” deficits of $216,000 for fiscal year 2004/5, $64,000 for 2005/6, and $252,000 for 2006/7.  The total deficit, over half a million dollars, was accruing even as Durgin reported that the code was paying its own way.

The Department did suggest making a request for the 2007/8 “building code” finances, and a request will be submitted for that and other information.  This article will be updated based on the county’s response.

However, the Department expects to present the updated numbers for 2007/8 at a work session being prepared by — Ron Durgin.  A work session prepared by a person evidently biased in favor of the code cannot substitute for an comprehensive review by the Supervisors, P&Z staff, County Attorney staff, building code experts, builders and developers, and members of the public.

IS THE COUNTY SHIFTING TOWARD MAKING “GREEN” BUILDING COMPULSORY?

The Herald story says that “With the advent of building ‘green’ composite materials made, from various recycled or earth-friendly (think straw bale), Durgen wants these new materials to be included in future amendments to the code.”

Voluntary “green” measures are one thing, but mandatory “green” measures, with penalties for noncompliance, are something else. Supervisor Searle has said he backs “voluntary,” new Planning Department head Susan Buchan has agreed, and Supervisor Call at first seemed to agree.  Yet lately Call has spoken more about imposing “green” measures by ordinance.

Durgin seems to be following in Call’s wake.  The shift towards more use of what many rural residents see as “code enforcement nazis” is likely to strengthen the “rural revolt” against incumbents.

Walker’s “Administrators’ Letter to the public” was, as has been noted elsewhere, based on falsehoods and mistakes. Here’s a condensed version:
– The “Letter” didn’t mention that school policy does not allow the censorship that Walker and Taylor committed.
– The “Letter” didn’t mention that the censorship violated the First Amendment, and the “Letter’s” citation of one Supreme Court case was a mess.
– The letter made stupid, counterfactual arguments that the censorship was necessary — arguments which Walker and Taylor quickly undercut by letting the entire article be published in the next issue of the student paper.
– The “Letter” attacked the student for “bias or failure to research or simply … bad reporting,” and asserted that “The reporter does fire one specific allegation against board member Sue Makin [but] fails to add that Sue Makin denied making the statements that she was accused of making” — even though the report included details of Makin’s denial.  How could Walker insult the student by contradicting what the student wrote?

Superintendent Walker has a lot to apologize for, but his Feb 27 non-apology gives principal Taylor the chance to be the first to set a good example for his students by admitting what he did, and issuing a real apology.

An endnote:  Superintendent Walker’s letter of non-apology makes two glaring grammatical errors. It opens “During conversations with Mr. Taylor, I understand that” (incorrect tense), and it closes “Please accept my apologies if this were the situation with you” (incorrect mood — this is not a subjunctive situation).  A Freudian could ask why, as Walker wrote what should have been a plain, direct apology, his grammar twisted itself into knots.

On Wednesday, February 5, the Cochise County Planning Department held another “Envisioning 2020″ meeting, in Elfrida.

It’s odd that the “Envisioning 2020″ project is still going on, since its reason for existence has disappeared. Last July, a local newspaper reported that the project was Susan Buchan’s (she has since left county government) way to address the problems of growth, by helping developers understand what county residents want. A September article quoted Planning Department head Judy Anderson as saying “the goal of the process is to obtain citizen input on where and how to accommodate new growth.” The emphasis was growth, growth, growth.

Anticipating “growth, growth, growth,” and requests from real estate developers, used to take up huge amounts of time at county supervisor meetings. The supervisors spent a lot less time on issues that were more important to most people, like county health care or public transportation.  And now it turns out that a lot of the time spent catering to real estate developers will be wasted. The real estate boom is over, and the economy in general is getting tough. Developers who spent fortunes getting permission to build grandiose subdivisions are now abandoning their plans and cutting their losses.

Since “Envisioning 2020″ began as a way to handle “growth, growth, growth,” and now the economy is going “shrink, shrink, shrink,” the project will shut down, right? “Ho, ho, ho” — it’s a GOVERNMENT project. The project website now says that with the housing market slowing down, now’s the best time to plan for the future. In other words, “the project must go on” even though the reason for it has disappeared. Common sense has never stopped a government project. It must be fun to spend tax money.

Hard times are hammering Cochise County government, but the project goes on. A local paper reports that county government is running out of money, may freeze hiring, and probably will fire some employees. At Wednesday’s meeting, in the midst of an amicable conversation with the project’s current honcho Susana Montana, I asked why this expensive project should continue after its original reason has disappeared, but she refused to discuss that question.

The project is soaking up resources that could be used for real work, but the project goes on. County government people at Wednesday’s meeting included Assistant County Administrator James Vlahovich; Planning Department head Judy Anderson and three Department employees; paid facilitator Lynn Slagle; and Planning & Zoning Commission chairman Karen Corey.

The Planning Department is notorious for doing its actual job badly, but this project soaks up time that’s needed for education and training.  In basic things like trying to get permits, people have learned to expect rudeness and incompetence from the Department. Willful ignorance is prominent in the Department too; it’s like pulling teeth to get the management to pay any attention to the Open Meeting Law, and the management acts insulted when asked to obey the law. And as to a specific duty imposed over two years ago, the Department’s performance has been laughable.

Over two years ago, the Board Of Supervisors forced zoning regulations on all the rural parts of the county. The Planning Department, and supervisor Patrick Call, plumped hard to get Sierra Vista-style regs passed. Call and the Department promised that the new regs would make rural life safer, and lead to lower home insurance rates. The other supervisors went along. The supervisors threw the public a bone by ordering a real evaluation of how the new regs worked in the area around Sierra Vista, before imposing them on the rest of the county. The evaluation was to be made by a team including Supervisors, experts, big developers, and interested citizens. The evaluation should determine if the new regs actually do make rural life safer and lead to lower home insurance rates, as Call and the Department promised.

After making big promises, Call and the Department have turned handsprings to avoid making the evaluation. When the first evaluation was due, Call said he had forgotten about it. Public pressure didn’t stop, so the required evaluation was rescheduled. However, instead of a real evaluation, the Department has twice produced in-house evaluations. First, one Department employee (who’s left the Department) said the new regs were collecting enough fees to pay the cost of collecting the fees (the cost of collection, by the way, included paying his salary). Last year, the Department brought in every employee available to sit around while Judy Anderson produced figures that showed that contrary to the first report, the regs were NOT collecting enough to pay their own way — and Anderson admitted that nobody has even begun to look at insurance rates. The project continues to suck resources away from doing necessary work like the required evaluation.

The project isn’t necessary. The Planning Department must evaluate county regulations periodically, but an evaluation doesn’t require this project. The county could simply keep track of citizens’ comments as they come in.

Some people even see the project as a way for county government to control input from citizens. Citizens did quite well by themselves in shutting down Smith Ranch, and that success inspired citizens around the county to organize themselves. The project originated after that wave began, and the project’s citizens meetings, which seem solicitous of citizen input, actually marginalize and sidetrack any new ideas that citizens might contribute.

For instance, the Wednesday night meeting reinforced, in written and spoken form, the Department’s message that “The County has developed a list of ‘givens’ that simply define things that cannot be changed,” and the “givens” include giving as much weight to a survey taken last year, as to citizen input at meetings.

Citizen input in favor of changing those “givens” was discouraged. Citizens were assigned to tables for discussions, with each table giving a report of the discussion it had, but each report was supposed to contain only what the people at that table agreed on. Cutting off original ideas early in the game is a fine way to suppress new ideas (and it’s an example of county government’s reflexive aversion to hearing uncomfortable facts: the county supervisors have moved their Call To the Public to the end of meetings, and the P&Z commissioners are thinking about it.)

The survey that the Department insists on using was inept, and is useless for planning. If Cochise County were like the sample, the county would have 40% men, instead of half. We’d have 40,000 people under 50, instead of double that. We’d have 7500 families who rent homes, instead of double that. We’d have 40,000 people over 65, instead of half that. And so on. The chance that the survey accurately represents the citizenry is astronomically small. The Department has ignored these numbers for a long time. In a conversation Wednesday night with a Department employee, his only criticism of these numbers was that the survey stated percentages, not numbers — as if converting percentages into actual numbers were improper.

What’s worse, the Planning Department is going to give more weight to the inept, unsound survey than to input from concerned citizens.  The Department’s reasoning is that the citizens who show up for the Envisioning 2020 meetings are self-selected, and therefore do not represent the county impartially — but that the survey can be trusted because it was random.  No one I’ve talked with at the Department seems to have the training to understand what a random sample is, and the implications of a sample that differs hugely from the actual population being measured.

And it’s not as if the project must continue so that the money already spent won’t be wasted. The major out-of-pocket expense of $50,000, paid to a Tucson company to produce the useless survey, was wasted as soon as it was spent. Continuing the project won’t make make that expense worth anything.

Why won’t the county end this boondoggle, and spend its limited money on doing what’s required, not on what might be nice if the taxpayers could afford to finance every bright bureaucratic idea?