George, When Did You Put In The Trailer That They Want To Issue The Notice of Violation For?
August 7th, 2009 | 
Author: I. The Basics
The government of Apache County, Arizona, has been violating property rights for years. Apache County adopted a zoning ordinance in 1985, and a building code in 1986, but did not adopt any enforcement powers or penalties, nor establish the position of county zoning inspector.
ARS 11-808(A) now says that “The county zoning ordinance shall provide for its enforcement … by means of withholding building permits, and for such purposes may establish the position of county zoning inspector, and such deputy inspectors as may be required, who shall be appointed by the board.” The statute was identical in 1980. Unless the county shows that the statute was different in 1985, it appears that the county never tried to comply with the law requiring the position of zoning inspector to be created.
11-808(B) says that “From and after the establishment and filling of the position [of county zoning inspector], it shall be unlawful to erect, construct, reconstruct, alter or use any building or other structure within a zoning district covered by the ordinance without first obtaining a building permit from the inspector.” That is, even if a zoning ordinance is passed, things don’t become unlawful until the position of county zoning inspector is both established and filled.
The double-barreled nature of that requirement is important. The county government might argue that it hired a person who acted as if he were the county zoning inspector; there are cases which hold that when a person is personally hired as a deputy zoning inspector by a properly appointed zoning inspector, instead of being appointed by the county supervisors as required by law, the hired person is a “de facto” deputy zoning inspector, and his acts are as valid as if he was properly hired.
This “de facto” doctrine makes the best argument that can be made for giving effect to the acts of Apache County’s unappointed “zoning inspector.” However, the “de facto” argument is still not good enough. The “de facto” doctrine is:
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were … under color of a known election or appointment (which was) void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or because of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
See, for example, the case of Jennings v. Woods (1999), 982 P.
2d 274, 292, 194 AZ 314, 332, para. 87.
If an office is created, a “de facto” appointment may exist; but the “de facto” doctrine does not go so far as to state that the office to be filled itself may be created “de facto.” Before an office can be “de facto” filled, the office must be legally created — and legal creation of the zoning inspector is the step that Apache County never took until 2008.
Apache County officials obviously knew, at least 20 years ago, of the requirement to legally establish the office of zoning inspector. The “Greer Zoning Ordinance” for part of the county said “WHEREAS, the effect of this ordinance as an amendment and supplement to the Zoning Ordinance of Apache County, Arizona, is intended to benefit the present and future citizens of the community of Greer …; THEREFORE, the Apache County Board of Supervisors … does hereby adopt this 15th day of May 1989, for the effective date of June 17th, 1989, the Apache County Land
Plan and Community Development Ordinance inclusive of the Greer Phase I Plan.”
Similarly, in late 2007, Apache County officials revealed that they knew of the requirement for an effective date, when they proposed a county zoning ordinance in which Section 111 stated an effective date. The proposed ordinance was defeated, but county officials cannot claim to be ignorant of the requirement to include an effective date in zoning ordinances. I’M STILL TRYING TO FIND THE STATE STATUTE GOVERNING EFFECTIVE DATES FOR STATUTES WHEN A STATUTE OMITS THE “EFFECTIVE DATE” LANGUAGE.
Nonetheless, since 1985, Apache County has enforced the code, and imposed penalties, although it had no effective date, and though no county zoning inspector was appointed. By 2008, Apache County had issued orders to over one hundred property owners. Not one of them has ever been allowed a hearing for a violation; property owners have been forced either to get a variance and a permit, or to have a notice of violation recorded.
Finally, on December 2, 2008, the county adopted enforcement powers and penalties, and now the county says it plans to enforce the 2008 enactment against every county resident who built without a permit from 1985 to 2008.
The county’s intentions appear to violate the law again. ARS 11-861(A) says, in pertinent part, that “In any county which has adopted zoning pursuant to this chapter, the board of supervisors may adopt and enforce, for the unincorporated areas of the county … , a building code and other related codes to regulate … construction of
buildings or structures.”
11-866 says, in pertinent part, that “A penalty clause contained in a code adopted by reference … shall be set forth in full in the adopting ordinance.”
In the 2008 amendments to the Apache County code, Article 13 is brand new. In Article 13, Section 1301 establishes a code enforcement officer and various other officers, and says that the “code enforcement officer, designees, and deputy zoning enforcement officers, and building official, deputies and designees, and Sheriff and deputies shall be
referred to in this Article as the ‘enforcement officer.’”
Section 1302(A) says “[i]t shall be the duty of the code enforcement officer, building official, the Apache County Sheriff, and all Apache County officials otherwise charged with the enforcement of the law to enforce all the provisions of this Ordinance.”
WHEN DID THEY ESTABLISH THE OFFICE OF “BUILDING OFFICIAL”?
Assuming for purposes of argument that new Article 13 was adopted properly and is legal in all respects, its passage does not give the county the right to enforce codes retroactively. ARS 11-808(B) says zoning ordinances take effect prospectively: “From and after the establishment and filling of the position, it shall be unlawful to erect [etc.] any building or other structure within a zoning district covered by the ordinance without first obtaining a building permit from the inspector ….”
PROBABLY MORE NEEDED HERE
Walsh asked the county “building official,” Milton Ollerton, for a copy of the old ordinance that said anyone was required to get a permit, and also of the ordinance giving Ollerton the power to send a notice of violation and to record that notice. Ollerton has provided nothing that was requested — but, according to Walsh, Ollerton has been writing up code violations for many Apache County residents.
II. Ongoing Action
Populist organizing on a very large scale may protect individuals from governmental retaliation.
Besides organizing on his own, Walsh wrote state senator Sylvia Allen a letter which set out the basic situation and asked her to ask the county a few questions. She responded in a very cooperative way, stating that she would write the county with the questions Walsh suggested.
More news from Senator Allen is eagerly awaited. There are so many statutes that the county could inject into the argument, that it’s impossible to cover much substance until the county sends an actual answer — which the county is not doing in response to Walsh’s questions. Whatever results Senator Allen obtains, she will help citizens move the debate forward.
III. Possible Other Action
Walsh has suggested flash mobs to show how strong opposition is.
The next P&Z Commission meeting will be held at the Apache County Supervisor meeting room in St. Johns at 1:00 pm. The worksession will start at 11:30. These “worksessions” include the county giving a free meal to all the Commissioners. This used to take place at a local restaurant; after a citizen complained, the county began having the
meals catered in. Either way, free meals for Commissioners are compensation, which violates ARS 11-803(A).
I. The Basics
The government of Apache County, Arizona, has been violating property rights for years. Apache County adopted a zoning ordinance in 1985, and a building code in 1986, but did not adopt any enforcement powers or penalties, nor establish the position of county zoning inspector.
ARS 11-808(A) now says that “The county zoning ordinance shall provide for its enforcement … by means of withholding building permits, and for such purposes may establish the position of county zoning inspector, and such deputy inspectors as may be required, who shall be appointed by the board.” The statute was identical in 1980. Unless the county shows that the statute was different in 1985, it appears that the county never tried to comply with the law requiring the position of zoning inspector to be created.
11-808(B) says that “From and after the establishment and filling of the position [of county zoning inspector], it shall be unlawful to erect, construct, reconstruct, alter or use any building or other structure within a zoning district covered by the ordinance without first obtaining a building permit from the inspector.” That is, even if a zoning ordinance is passed, things don’t become unlawful until the position of county zoning inspector is both established and filled.
The double-barreled nature of that requirement is important. The county government might argue that it hired a person who acted as if he were the county zoning inspector; there are cases which hold that when a person is personally hired as a deputy zoning inspector by a properly appointed zoning inspector, instead of being appointed by the county supervisors as required by law, the hired person is a “de facto” deputy zoning inspector, and his acts are as valid as if he was properly hired.
This “de facto” doctrine makes the best argument that can be made for giving effect to the acts of Apache County’s unappointed “zoning inspector.” However, the “de facto” argument is still not good enough. The “de facto” doctrine is:
An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were … under color of a known election or appointment (which was) void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or because of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
See, for example, the case of Jennings v. Woods (1999), 982 P.
2d 274, 292, 194 AZ 314, 332, para. 87.
If an office is created, a “de facto” appointment may exist; but the “de facto” doctrine does not go so far as to state that the office to be filled itself may be created “de facto.” Before an office can be “de facto” filled, the office must be legally created — and legal creation of the zoning inspector is the step that Apache County never took until 2008.
Apache County officials obviously knew, at least 20 years ago, of the requirement to legally establish the office of zoning inspector. The “Greer Zoning Ordinance” for part of the county said “WHEREAS, the effect of this ordinance as an amendment and supplement to the Zoning Ordinance of Apache County, Arizona, is intended to benefit the present and future citizens of the community of Greer …; THEREFORE, the Apache County Board of Supervisors … does hereby adopt this 15th day of May 1989, for the effective date of June 17th, 1989, the Apache County Land
Plan and Community Development Ordinance inclusive of the Greer Phase I Plan.”
Similarly, in late 2007, Apache County officials revealed that they knew of the requirement for an effective date, when they proposed a county zoning ordinance in which Section 111 stated an effective date. The proposed ordinance was defeated, but county officials cannot claim to be ignorant of the requirement to include an effective date in zoning ordinances. I’M STILL TRYING TO FIND THE STATE STATUTE GOVERNING EFFECTIVE DATES FOR STATUTES WHEN A STATUTE OMITS THE “EFFECTIVE DATE” LANGUAGE.
Nonetheless, since 1985, Apache County has enforced the code, and imposed penalties, although it had no effective date, and though no county zoning inspector was appointed. By 2008, Apache County had issued orders to over one hundred property owners. Not one of them has ever been allowed a hearing for a violation; property owners have been forced either to get a variance and a permit, or to have a notice of violation recorded.
Finally, on December 2, 2008, the county adopted enforcement powers and penalties, and now the county says it plans to enforce the 2008 enactment against every county resident who built without a permit from 1985 to 2008.
The county’s intentions appear to violate the law again.
ARS 11-861(A) says, in pertinent part, that “In any county which has adopted zoning pursuant to this chapter, the board of supervisors may adopt and enforce, for the unincorporated areas of the county … , a building code and other related codes to regulate … construction of buildings or structures.”
11-866 says, in pertinent part, that “A penalty clause contained in a code adopted by reference … shall be set forth in full in the adopting ordinance.”
In the 2008 amendments to the Apache County code, Article 13 is brand new. In Article 13, Section 1301 establishes a code enforcement officer and various other officers, and says that the “code enforcement officer, designees, and deputy zoning enforcement officers, and building official, deputies and designees, and Sheriff and deputies shall be
referred to in this Article as the ‘enforcement officer.’”
Section 1302(A) says “[i]t shall be the duty of the code enforcement officer, building official, the Apache County Sheriff, and all Apache County officials otherwise charged with the enforcement of the law to enforce all the provisions of this Ordinance.”
WHEN DID THEY ESTABLISH THE OFFICE OF “BUILDING OFFICIAL”?
Assuming for purposes of argument that new Article 13 was adopted properly and is legal in all respects, its passage does not give the county the right to enforce codes retroactively. ARS 11-808(B) says zoning ordinances take effect prospectively: “From and after the establishment and filling of the position, it shall be unlawful to erect
[etc.] any building or other structure within a zoning district covered by the ordinance without first obtaining a building permit from the inspector ….”
PROBABLY MORE NEEDED HERE
Walsh asked the county “building official,” Milton Ollerton, for a copy of the old ordinance that said anyone was required to get a permit, and also of the ordinance giving Ollerton the power to send a notice of violation and to record that notice. Ollerton has provided nothing that was requested — but, according to Walsh, Ollerton has been writing up code violations for many Apache County residents.
II. Ongoing Action
Populist organizing on a very large scale may protect individuals from governmental retaliation.
Besides organizing on his own, Walsh wrote state senator Sylvia Allen a letter which set out the basic situation and asked her to ask the county a few questions. She responded in a very cooperative way, stating that she would write the county with the questions Walsh suggested. More news from Senator Allen is eagerly awaited. There are so many
statutes that the county could inject into the argument, that it’s impossible to cover much substance until the county sends an actual answer — which the county is not doing in response to Walsh’s questions. Whatever results Senator Allen obtains, she will help citizens move the debate forward.
III. Possible Other Action
Walsh has suggested flash mobs to show how strong opposition is.
The next P&Z Commission meeting will be held at the Apache County Supervisor meeting room in St. Johns at 1:00 pm. The worksession will start at 11:30. These “worksessions” include the county giving a free meal to all the Commissioners. This used to take place at a local restaurant; after a citizen complained, the county began having the
meals catered in. Either way, free meals for Commissioners are compensation, which violates ARS 11-803(A).
Posted in Uncategorized
Walsh asked the county “building official,” Milton Ollerton, for a copy of the old ordinance that said anyone was required to get a permit, and also of the ordinance giving Ollerton the power to send a notice of violation and to record that notice. Ollerton has provided nothing that was requested — but, according to Walsh, Ollerton has been writing up code violations for many Apache County residents
This is a old posting but recently 4 property owners meet with the district 3 Supervisor Lee and the building official and the P&Z director but they also had the elected county Attorney and two deputy attorneys. And we asked just where in the adopted ordinances it said a permit was required? WE WERE TOLD IT WAS NOT WRITTEN TO BE REQUIRED BUT IMPLIED TO BE REQUIRED. IMPLIED? IMPLIED TO BE REQUIRED? what the H E double toothpicks does that mean implied to be required. What kind of zoning ordinance implies a requirement? Who made up this lame answer. I mean it was siad ny Lee and he was nice enough to tell us we did not have a case. Or at least if we were to bring it to him in his office he would tell us that. Well sir you are wrong we do have a case and you will be proved wrong. A cover up will include the fact you are helping to conceal a violation of the property owners rights in your district.
I alway thought that you had to get a permit to put a home on your lot. That promotes health and safety in the area. Without a building permit, anyone can do anything to their property with consideration to their neighbors or property values in the area. With law, we would have anarchy.
I see situations in the area where someone will have several \”ULGY\”, outdated, unsafe homes on their property and then yell that the home prices never go up or that their neighbors are upset and worried that it\’s unsafe. (in the mean time, county continues to do nothing about it as these people trash flys around the neighbor and these people start storing their crap and animals on other people\’s lots because they ran out of room. How is this fair for me who keeps cleaning up after these people? Why should I be punished because these people are too lazy to do what is right? How do we solve this problem and keep it fair to those who work hard to make it a nice place to live?
“Why should I be punished because these people are too lazy to do what is right? How do we solve this problem and keep it fair to those who work hard to make it a nice place to live?”
But the mistake was made by the Apache County Officials not the property owners. And yes permits will be required,but the Apache County officials should not be recording notices of violation when no legal violation has accured. It would be like you driving down the road wearing a red shirt and getting pulled over for driving while wearing a red shirt. And the cop giving you a ticket for that. If you checked there would be no law saying that you could not wear a red shirt while driving. Would you stand still or fight like heck to prove there was no law saying that driving with a red shirt was illegal? I bet you would stand up and fight. All I am asking for is that the Apache County officials remove the illegally rcorded notices and stop issueing any violations for anything prior to the Adoption of Article 13 which was the first time they had even a close ordinance that said a permit was required. Oh and permits are not always required by counties,it depends on if they have adopted such a ordinace or not some have and some have not. Some counties have chosen to not require building permits in some areas of their counties.And you might assume a permit is required if you have asked a county official but them saying it is required and it being required by ordinance are two very different things.
I have a Red Shirt.
I am with you on this whole heartily, but I also see the point “Tired” is making. However, a fine after the fact for something that didn’t require a permit, wrong, just wrong.
Aloha
Howdy Butch . They are not fining property owners. Instead they are creating clouded title to property by recording a violation that is not legally a violation according to the Apache County zoning as adopted and or amended. And it is going to effect every property in this county. Some very well to do folks have already been given recorded violations. Which a recorded violation can affect your insureance coverage and financing or even prevent you from getting insureance or financing. But what is even more distrubing is that the implied rules are not applied to everyone. The Whiting Homestead has 13 or so homes and or building and it has never obtained a use permit for anything after the zoning was adopted. Yet they have no recorded notice of violation. WHY? well it is owned by our state senator and his family could be a reason. I was told by the former zoning inspector he had written a report on this property and turned it over to the building official for a letter to be sent and a notice recorded. The report went missing and the zoning inspector was laid off. Seems odd to me.
Sounds like a cover up you see on TV, George. Hey, I’ll see you soon, 2 weeks or so. Take care.
I’ll be here Butch. What it boils down to is a mistake. Thats all a mistake, but instead of doing what is right and correcting the mistake the county has choosen to cover it up. And if they would just be public minded as they are required to be they would not be holding property owners at fault for the counties mistake.
I totally agree. My Dad always told me, if you make a mistake, admit it, you’ll be a better person for it.
Tropical Storm Felicia heading right at us, yikes.
Well one thing is for sure. The county is now publishing the new adopted or amended ordinances. But is it too late for that action to be legal? And they have also stopped recirding code violation notices, unless they are just not posting them to the web. But the last recorded notice was 6/30/2009. So maybe they are coming to relize they have been acting without the legal power to do so. But it is just one of the many procedural eroors that happen everyday in Apache County due to incompetent department heads being hired to do a job they have no quailfications for.
get off their back and just follow the law!!!!!
Hey King, he is following the law, regs placed in after he installed his trailer, it’s called “grandfathered”. Think, if you had a small shed in from 20 years, the law changed the ordinance, how would you feel getting fined? Just think.