Apache County Zoning Ordinances are they legal?

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Update:

Here are the records for all the Published notices of pubic hearing for the years of 1985,1998 and 2006. These years were the years the Apache County BOS adopted the Apache County Zoning Ordinance and the Apache County Building Ordinance. Both being ORDINANCES.

ARS 11-251.05 is what the BOS is REQUIRED to follow when adopting,amending or repealing a ORDINANCE.

1985 published notices

1998 notices

2006 notices

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Does anyone think that the county can adopt or amend a ordinance without a public hearing as required by law? You bet just read the minutes of the three meeting below and then ask just how incompetent was the statement made by the Attorney. ALL ORDINANCES either adopted or amended REQUIRE it be at a PUBLIC HEARING.ARS 11-251.05 and related Title 6 Statutes. None of which were followed here.

Ok here are just Three items I got from a recent records request:

This first one is for all the Greer folks questioning the recent propsed changes. Notice there is no mention of it being presented as a public hearing. And I have some other items from the records I requested that very clearly state those other items are being presented as public hearing. So have the Greer Ordinance really been legally adopted? You may want to look closer into this. I mean if you care about your rights at all.

Apache County Board of Supervisors meeting minutes

October 3, 1995

Mike Mclntyre, County Planner, presented the request for consideration of Greer Ordinance and

legislation regarding its enforcement. He asked that the item tabled but would like to request that the

Greer Ordinance be used as a guide and not as a law to facilitate fair and impartialjudgment. He said

there needs clarification and that there were also problems in interpreting it. Mr. Shirley moved

approval of the recommendation to defer the item to a future date and time and suggested Mr.

Mclntyre work with the Greer people regarding revisions and changing of the Ordinance. He would like

to see the County work with the people in Greer for one set of policies to use. Mr. Shepherd seconded

the motion. Vote unanimous. Mr. Mclntyre stated that it.would take a year to 18 months to develop

and finalize. lt would go into the next application season with a lot of arguments as in the past. He

requested, at least today, see if the Greer Ordinance could be determined a guide or such other than a

law for Greer. Mr. Burdick said that if the Board was interested in following what Mr. Mctntyre wanted

in changing the Ordinance to a guide, the Board could not act today other than to start that process. Mr.

Shirley said he would like to hear from the people in Greer in more discussions. Our recommendation is

one set of policies as a guideline. We are working with the problems and at least moving in a forward

direction. Mr. Bigelow said the staff agrees with you that a change cannot be made today. Per your

instructions the staff will go back and get with the Greer people and ascertain if a formal change is

desired and to use as a guideline or an ordinance. Will come back in the next few meetings with the

information to either leave as ordinance while work out the kinks or be a guideline to work out the

kinks.

 

 And here is a item presented as a public hearing as a example: 

May 5, 1998

Marty Moore, County Development Director, presented the item in reference to the public hearing for

discussion and possible action on the adoption, by Resolution, of an off-premises sign ordinance. The

purpdse of the proposed ordinance is to take action in relationship to continued construction of

billboards, and other large signs, particularly on scenic highways in Apache County. There was a

unanimous recommendation for approval by the Planning and Zoning Commission on the condition that

off-premises signs are prohibited on all highways except Within one mile of incorporated tbwn/city

boundaries. Chairman Shirley instructed that the item be remanded back to the Planning and Zoning

Commission for another hearing in accordance with Title 11of the Arizona Revised Statutes.

 

(NOTE this meeting minutes mention public hearing having been held prior but this was not a public hearing nor was it addressed or presented as such.)

June 15, 1998
Homer Rogers, County Building Official, presented the item concerning the adoption of the 1997
Uniform Building Code 1995, lnternational Mechanical Code, 1994 Uniform Plumbing Code, 1997
Abatement of Dangerous Buildings, and 1995 National Electric Code with amendments. Also changes to
theApache County Building Ordinance. Effective date for’Building Ordinance is to be September 1,
1998. He felt the 1988 fee schedule should be maintained for building permits. The September 1
effective date would allow the time to familiarize the contractors with the changes. He recommended
approval, along with Mr. Bigelow. Mr. Lee moved approval of the recommendation. Mr. Burdick of the
Attorney’s office asked about the hearings. Mr. Rogers said hearings were held in Planning and Zoning
and other hearing with the Board of Supervisors. Mr. Lee amended his motion to include the approval
subject to the approval of the County Attorney’s office. Mr.’White seconded the motion. Vote carried
unanimous.

 

 And then this mistatement by the Apache County Attorney for the meeting. which should at least raise some questions to the past actions when adopting ordinances and building codes in Apache County. Don’t you think?

July 7, 1998
Marty Moore, County Development, presented the request for approval of an off-premises sign
ordinance for Apache County. After public hearing, the Planning and Zoning Commission unanimously
recommended approval on the condition that churches and business associations are exempted from
the provisions of this ordinance, and that billboards on l-40 be subject to administrative approval, with
guidelines as outlined in recommendations from Jones Outdoor Advertising. lt was recommended a
public hearing be set before the Board of Supervisors. Mr. Burdick of the County Attorney’s office said
that a hearing is not required unless it is requested, with at least a 15 day notice. After discussion, Mr.
White moved to set the hearing for August 10, 1998 and cancel the August 4, 1998 meeting. Mr. Shirley
seconded the motion. Mr. Lee was absent from the room. Vote carried unanimous.

 

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 Now here is the case of which I think is very relevent to the Apache County property owners rights.

A. Bartheld v. County of Koochiching, 716 N.W.2d 406 (Minn Ct. App. 2006). 1. Facts: Barthelds applied for a CUP from Koochiching County to turn their house into a bed and breakfast. After a public hearing where concerns were raised. by neighbors over parking, traffic, noise, and declining property values, the zoning commission delayed making a recommendation and scheduled a second hearing on the matter. Following a second hearing, the zoning commission concluded that the Barthelds met all the requirements for approval under the county’s CUP ordinance and recommended approval of their application for a two-unit B&B for a period of five years subject to the revised conditions set forth by relators. After public comment, the county board approved a motion to deny the recommendation of the zoning commission to grant the CUP and “placed a moratorium on all Bed and Breakfast lodging applications until guidelines were established for operation of these businesses in the county.” The reasons stated for the CUP denial were that “the request [was] hard to support when the vast majority of the property owners in the neighborhood are opposing it” and the board desired to “come[] up with further guidelines for establishing B&Bs in the County to ensure they are acting in a uniform manner.” The board did not issue or publish a temporary interim zoning ordinance. Relators appealed by writ of certiorari. 2. Issue: Did the County act in an arbitrary and capricious fashion in the denial of the CUP and did err in failing to adopt a temporary zoning ordinance in conformity with Minn. Stat. § 394.34 (2004)? Yes and Yes. 3. Reasoning: Under Minn. Stat. § 394.34 (2004), a county has the authority to adopt an interim zoning ordinance as a legislative act. A legislative act, including a a zoning or rezoning classification, must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare. For a written interim zoning ordinance to be valid, it must find that an emergency exists, and follow “other applicable statutory procedures. Id.; see Minn. Stat. § 375.51, subds. 1, 2 (2004) (every county ordinance adopting or amending official controls requires a public hearing preceded by published notice, adoption by majority vote and signed by the chair of the board, and be published). Following adoption and publication, the ordinance must be timely recorded. Id., subd. 1. The county must also establish that: (1) it is conducting, or in good faith intends to conduct, a study within a reasonable period of time; or (2) has held, or is holding, a hearing to consider either adopting or amending its comprehensive plan or official control; and (3) the interim zoning ordinance shall be limited to one year from its effective date and to a one-year renewal period. Minn. Stat. § 394.34. The county concedes that it (1) did not adopt a written interim zoning ordinance; (2) did not find that an emergency existed; (3) did not intend to conduct a study or hold a hearing; (4) did not limit the duration of the interim zoning ordinance to less than one year; and (5) did not follow the statutory procedures for enactment of an ordinance set forth in Minn. Stat. §§ 375.51, subd. 1, and 394.34. Based on the record before us, we conclude that the county board failed to comply with the requirements of Minn. Stat. § 394.34. Consequently, the interim zoning ordinance was invalid and did not provide a legally sufficient basis to deny relators’ application.”

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And here is yet another case with multiple reference to this type of thing.

http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=380148

I found this and thought it was very simular to the situation in Apache County.

http://www.straighttalknews.org/uploads/Federal_OrderInFavorof_Plaintiffs_20090515104049896.pdf

http://www.straighttalknews.org/State_Law_Requirements.html