DIS- 1926
Items For Discussion 1.
Work Session Board of Supervisors1
Community Development
- Meeting Date:
- 08/04/2014
- Title:
- Amend the floodplain violation procedure
- Submitted By:
- Gussie Motter, Board of Supervisors
- Department:
- Board of Supervisors
Presentation:
No A/V Presentation
Recommendation:
Document Signatures:
# of ORIGINALS
Submitted for Signature:
Submitted for Signature:
NAME
of PRESENTER:
of PRESENTER:
Britt Hanson
TITLE
of PRESENTER:
of PRESENTER:
Chief Civil Deputy Attorney
Mandated Function?:
Source of Mandate
or Basis for Support?:
or Basis for Support?:
Information
Agenda Item Text:
Amend the floodplain violation enforcement procedure set forth in A.R.S. § 48-3615.01 by adding certain due process protections and eliminating ambiguity and unnecessary steps in the procedure in counties with a population less than 175,000.
Background:
Cochise County has been going through a floodplain violation enforcement procedure pursuant to A.R.S. § 48-3615.01 and found it very awkward. It calls for a hearing by a hearing officer, but the hearing officer only makes a recommendation to the chief engineer, who then renders a final order and decision. In a small county such as Cochise, the engineer who would render that final order and decision is also the engineer who has already made the determination that a violation has occurred and will be the chief witness for the flood control district at the hearing. Needless to say, the respondent property owner will see all of this as fundamentally unfair—the engineer as the investigator, prosecutor, judge and jury. While we realize that administrative procedures don’t need to have all of the due process safeguards as a court procedure, the process and outcome does look ridiculously rigged.
The proposed amendment calls for the hearing officer to make the final order and decision rather than the chief engineer. The proposal makes that procedure available to counties less than 175,000 because perhaps the existing procedure works well in larger counties where there may be more engineering layers. But we would certainly have no problem adjusting that number up or down depending on the wishes of other counties.
The proposed amendment also eliminates a very needless step in the enforcement process: a show cause meeting (or something—it’s not really a hearing) between the respondent property owner and the chief engineer; the actual hearing process before the hearing officer doesn’t commence until after that show cause meeting. In our County, by the time we’ve gotten to that point, the engineer (or other representative of the flood control district) will have met with the property owner on one or more occasions to discuss and attempt to resolve the violation. So the show cause meeting just unnecessarily causes the respondent property owner to show up at a meeting and the engineer to sit around to see if the respondent will show up at the meeting. This part of the process is actually more confusing than I’ve just outlined, as you can see if you read through subsection B of § 48-3615.01. The proposed amendment eliminates that step.
As currently in effect, § 48-3615.01 does not provide for a complaint or answer, which hearing officers (and others) are accustomed to. Accordingly, the proposed amendment adds that if the matter goes to a hearing, the notice of violation serves as the complaint and the respondent’s response to the notice of violation serves as the answer.
The proposed amendment calls for the hearing officer to make the final order and decision rather than the chief engineer. The proposal makes that procedure available to counties less than 175,000 because perhaps the existing procedure works well in larger counties where there may be more engineering layers. But we would certainly have no problem adjusting that number up or down depending on the wishes of other counties.
The proposed amendment also eliminates a very needless step in the enforcement process: a show cause meeting (or something—it’s not really a hearing) between the respondent property owner and the chief engineer; the actual hearing process before the hearing officer doesn’t commence until after that show cause meeting. In our County, by the time we’ve gotten to that point, the engineer (or other representative of the flood control district) will have met with the property owner on one or more occasions to discuss and attempt to resolve the violation. So the show cause meeting just unnecessarily causes the respondent property owner to show up at a meeting and the engineer to sit around to see if the respondent will show up at the meeting. This part of the process is actually more confusing than I’ve just outlined, as you can see if you read through subsection B of § 48-3615.01. The proposed amendment eliminates that step.
As currently in effect, § 48-3615.01 does not provide for a complaint or answer, which hearing officers (and others) are accustomed to. Accordingly, the proposed amendment adds that if the matter goes to a hearing, the notice of violation serves as the complaint and the respondent’s response to the notice of violation serves as the answer.
Department's Next Steps (if approved):
Send Proposal to the county Supervisors Association.
Impact of NOT Approving/Alternatives:
There is no fiscal impact but the current process will remain unchanged.
To BOS Staff: Document Disposition/Follow-Up:
To be determined.